Too Old For Sex: Are Nursing Home Residents Able to Consent to Sex?

5 Indest-2008-2By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
Sexual relationships in long-term care facilities or nursing homes are not uncommon these days. But the long-term care industry is still grappling with the issue and the question of whether some residents are able to give consent. In some cases, these aging lovers have raised logistical and legal issues for their families, caretakers and the institutions where they live. Complicating the issues are state regulations which punish the health facility for allowing “sexual abuse” of one resident by another and facility policies which prohibit sexual contact between residents.

More Freedom For Residents.

Many nursing homes have already loosened daily regimens for patients, giving them more say in when and what they eat and for some, the next step seems to be the option of having sex. “Sex falls right smack dab in the middle of who we are as people,” said Marguerite McLaughlin, senior director of quality improvement for the American Health Care Association, the nation’s largest trade association for nursing homes.

Some nursing homes such as The Hebrew Home have organized happy hours, senior proms and even a dating service called G-Date.

More Freedom, More Concerns.

The idea of more freedom and the option for sex among nursing home residents, also brings more concern. Are some residents able to give consent for sex, especially those with dementia? This topic already came up in court in 2014. Henry Rayhons’ wife lived in a nursing home. The staff there told Rayhons that because of her dementia, his wife was no longer capable of consenting to sex. He had been charged with sexual assault for allegedly having sex with her after that. He was later found not guilty. Click here to read more on this case.

More Guidelines?

Many nursing homes do not have any guidelines in place for cases such as this one. The Hebrew Home came up with a sexual expression policy back in 1995 after a nurse walked in on two residents having sex. Daniel Reingold, the president and chief executive, stated that the policy is not only intended to encourage intimacy among residents who want it, but also protects against unwanted sexual advances and sets guidelines for staff members. Reingold believes that patients with alzheimers and dementia are fully capable of giving consent and the policy reflects that stating that such patients can give consent for sexual relationships under certain circumstances.

The issue of sexual relationships among nursing home residents is not going to go away and will most likely remain controversial. More and more facilities and care takers are adopting adequate policies for residents and encouraging intimacy and companionship. As Eileen Dunnion, a registered nurse said, “You get old, you get cold!”
Contact Health Law Attorneys Experienced in Representing Nursing Homes and Assisted Living Facilities.

The Health Law Firm and its attorneys represent skilled nursing facilities (SNFs), assisted living facilities (ALFs), home health agencies (HHAs), and their employees in a number of different matters including license defense, representation in civil litigation, representation in administrative hearings, contract preparation and litigation, defense of malpractice claims, licensing and regulatory matters, civil monetary penalty actions, defense of false claims act cases, answering subpoenas and civil investigative demands (CIDs) and routine legal advice.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

Hu, Winnie. “Too Old For Sex? Not At This Nursing Home.” The New York Times. (July 12, 2016). Web.

Jaffe, Ina. “Can a Person With Dementia Consent to Sex?” NPR. (April 11, 2015). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
KeyWords: Sexual relationships in long-term health care facilities, nursing home residents consent to sex, can dementia patients consent to sex, too old for sex, policies and guidelines in nursing homes, sexual expression policy, American Health Care Association, legal representation for home health facilities, nursing home defense attorney, legal representation for nursing homes and home health agencies, health care defense lawyer, The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 2016 The Health Law firm. All rights reserved.

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Appeals Court Rules Against Nursing Home: Bankruptcy Cannot Affect Prevent Cancellation of Medicare or Medicaid Contacts

George IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On July 11, 2016, a federal appeals court stated that a bankruptcy judge did not have the authority to block government health officials from cutting off Medicare and Medicaid payments to a Florida nursing home that was alleged to have violated patient-care regulations. A three-judge panel of the 11th U.S. Circuit Court of Appeals sided with the U.S. Department of Health and Human Services (HHS) and the Florida Agency for Health Care Administration (AHCA) in the dispute with nursing home operator Bayou Shores SNF LLC (Bayou Shores).

The Violations.

In 2014, state inspectors cited a St. Petersburg nursing home operated by Bayou Shores. Contending that the violations posed a threat to patients’ health and safety, federal officials notified Bayou Shores that they were terminating an agreement that included Medicare payments, according to the court’s decision.

Bayou Shores subsequently filed for Chapter 11 bankruptcy protection and asked the bankruptcy court to prevent the state and federal agencies from ending the Medicare payment agreements. The bankruptcy judge sided with Bayou Shores and blocked the termination of the contracts. This led the government agencies to appeal to the local U.S. District Court.

Bankruptcy Court Did Not Have Jurisdiction.

The U.S. District Court judge ruled that the bankruptcy court did not have jurisdiction over the payment agreements, prompting Bayou Shores to appeal the case to the U.S. Eleventh Circuit Court of Appeals. After review, the three-judge panel issued a 66-page ruling on Monday July 18, 2016. The decision gave a detailed analysis of federal legislation involving federally funded healthcare programs and bankruptcy law. It and upheld the ruling by the U.S. District judge concluding that the bankruptcy court did not have jurisdiction to make a decision affecting the agreement.

Click here to read the 66 page ruling.

“HHS, not the bankruptcy court, has been charged by Congress with administering the Medicare Act and regulating Medicare providers,” the ruling written by Judge Raymond Clevenger III said. “And though charged with broad jurisdiction to deal with issues related to a debtor’s bankruptcy estate, bankruptcy courts generally lack the institutional competence or technical expertise of HHS to oversee the health and welfare of nursing home patients or to interpret and administer a ‘massive, complex health and safety program such as Medicare.’”

Don’t Wait Until It’s Too Late; Consult with a Health Law Attorney Experienced in Medicare and Medicaid Issues Now.

The attorneys of The Health Law Firm represent healthcare providers in Medicare audits, ZPIC audits and RAC audits, surveys and inspections of nursing homes, and termination of Medicare and Medicad provider agreements, throughout Florida and across the U.S. We also represent physicians, medical groups, nursing homes, home health agencies, assisted living facilities, pharmacies, hospitals, occupation therapists (OTs), physical therapists (PTs), speech therapists (STs), rehabilitation therapists (RTs) and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid program.

For more information please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

 

Sources:

Morning Edition. “Appeals court rules against nursing home in Medicare fight.” Tampa Bay Business Journal. (July 12, 2016). Web.

Brahm, Phil. “Court confirms: Nursing home can’t use bankruptcy to preserve Medicare, Medicaid agreements.” McKnight’s. (July 12, 2016). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawfirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone; (407) 331-6620.

KeyWords: Health care fraud defense lawyer, false claims act defense attorney, submitting false claims to the government, fraudulent reimbursements, unnecessary medical tests and procedures, questionable patient admission practices, nursing home survey attorney, U.S. Department of Justice (DOJ) prosecutions for healthcare fraud, U.S. Department of Health and Human Services (HHS), Medicare and Medicaid termination, OIG exclusion, civil monetary penalties lawyer, Medicare and Medicaid audit defense attorney, Medicare and Medicaid claims appeals lawyer, federal administrative complaint defense lawyer, health care legal counsel, Medicare and Medicaid investigation defense, termination of Medicare and Medicaid provider agreements, health law attorney, Florida health law attorney, The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999. Copyright © 2016 The Health Law Firm. All rights reserved.

Home Health Care Company Admits to FCA Violations, Agrees to Pay Millions

George IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On July 7, 2016, a Kentucky-based home health care chain, MD2U Holding Co. (MD2U), agreed to pay up to $21.5 million and admit False Claims Act (FCA) violations. According to the U.S. Department of Justice (DOJ), the deal is in connection with “extreme” billing practices that saw Medicare billed for false and unnecessary treatments.

The Complaint.

According to a complaint filed, MD2U frequently utilized billing codes reserved for the highest level of treatment when delivering primary care services in residential settings. The frequency with which the codes were used by MD2U made the company an “extreme outlier” among Medicare providers, the complaint said. The DOJ also described several other aspects of MD2U’s scheme. For example, it said that MD2U overbilled Medicare by “embellishing and, at times, fabricating the homebound and home-limited status of its patients.” “MD2U’s corporate culture was a one-code-fits-all mentality,” regardless of medical necessity, the DOJ wrote.

Click here to read the complaint in full.

The Deal.

MD2U and its various subsidiaries struck a deal with the DOJ that denies any intentional wrongdoing but also accepts responsibility for the submission of false claims from the time frame of mid-2007 to late 2014. The fraudulent overbilling was “due in part to the actions of a former employee,” according to a consent judgment. Click here to read the consent judgement in full.

MD2U, which also operates in Florida, agreed to dish out $21.5 million through a payment structure. Specifically, MD2U agreed to an up front payment sum of $300,000 and guaranteed payments over the next five years totaling $3 million. Additionally, MD2U also promised to hand over 25 percent to 50 percent of its net income annually through the year 2021. Click here to read the DOJ’s press release.

To learn more about the repercussions of fraudulent overbilling, click here to read one of my prior blogs.

Contact Health Law Attorneys Experienced in Handling Medicare Audits, Investigations and other Legal Proceedings.

The Health Law Firm’s attorneys routinely represent physicians, dentists, orthodontists, medical groups, clinics, pharmacies, assisted living facilities (AFLs), home health care agencies, nursing homes, group homes and other healthcare providers in Medicaid and Medicare investigations, audits and recovery actions.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

Overley, Jeff. “Home Care Co. Inks $21.5M FCA Deal Over ‘Extreme’ Billing.” Law360. (July 7, 2016). Web.

Greer, Carolyn. “MD2U, owners admit violating federal law, agree to pay millions.” Louisville Business Journal. (July 8, 2016). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawfirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone; (407) 331-6620.

KeyWords: Home health care, Health care fraud defense lawyer, False Claims Act (FCA) violations, False Claims Act defense attorney, submitting false claims to the government, fraudulent reimbursements, fraudulent overbilling, unnecessary medical tests and procedures, questionable billing practices, U.S. Department of Justice (DOJ) prosecutions for healthcare fraud, civil monetary penalties lawyer, Medicare audit defense attorney, Medicare appeal legal, Medicare claims appeals lawyer, Medicare defense attorney, federal administrative complaint defense lawyer, home health care legal counsel, Medicare investigation defense, health law attorney, Florida health law attorney, The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999. Copyright © 2016 The Health Law Firm. All rights reserved.

X-Ray Company Owner Receives 10 Years in Prison For $8M Medicare and Medicaid Fraud Which Lead to the Death of Two Patients

George IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On June 15, 2016, A medical diagnostics company owner found guilty of Medicare and Medicaid fraud for billing $8 million for X-rays whose botched analysis by amateurs led to the death of two patients was sentenced in Maryland federal court to 10 years in prison, the U.S. Department of Justice said. The diagnostics company, Alpha Diagnostics, LLC (Alpha), operated in Maryland, Delaware, Pennsylvania, Virginia and Washington, D.C.

Alpha’s president and chief executive officer (CEO) Rafael Chikvashvili, was convicted by a jury in February 2016 of two counts of health care fraud resulting in death, nine counts of health care fraud, eight counts of wire fraud, one count of conspiracy, 11 counts of false statements relating to health care matters and two counts of aggravated identity theft.

I previously wrote a blog covering this case. Click here to read it.

A Mathematician, NOT a Physician.

Chikvashvili, who is a mathematician and not a physician, provided X-rays, ultrasounds and other portable diagnostics in Alpha’s different locations. “The jury found that two patients died because their X-rays were not reviewed by a qualified radiologist. Health care fraud has consequences,” U.S. Attorney Rod Rosenstein said in statements in February and again on Wednesday.

The Consequences of His Actions.

According to prosecutors, Chikvashvili improperly ordered nonphysician employees to interpret X-rays, ultrasounds and cardiology exams, then submitted false claims to the government for reimbursement. Additionally, he ordered workers to make up physicians’ examination reports and improperly copied physicians’ signatures, sometimes even forging them himself, prosecutors said.

Not only did he defraud the government out of thousands of dollars, two patients died as a result of his actions. “The evidence showed that Rafael Chikvashvili failed to provide medical services to patients who needed them, billed for services he did not provide. The jury found that two patients died because their X-rays were not reviewed by a qualified radiologist. Health care fraud has consequences, in money wasted and lives lost.” U.S. Attorney Rod J. Rosenstein said in a statement.

The case is U.S. v. Chikvashvili, case number 1:14-cr-00423, in the U.S. District Court for the District of Maryland.

At The Health Law Firm, we have experience with cases such as this. Click here to read a press release for a previous client we represented in which our attorneys succeeded in having the physician dismissed from a six million dollar suit.

Contact Health Law Attorneys Experienced in Handling Medicare Audits, Investigations and other Legal Proceedings.

The Health Law Firm’s attorneys routinely represent physicians, dentists, orthodontists, medical groups, clinics, pharmacies, assisted living facilities (AFLs), home health care agencies, nursing homes, group homes and other healthcare providers in Medicaid and Medicare investigations, audits and recovery actions.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Source:

Salvatore, Cara. “X-Ray Co. Owner Gets 10 Years For $8M Fraud, 2 Deaths.” Law360. (June 15, 2016). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawfirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone; (407) 331-6620.
KeyWords: Health care fraud defense lawyer, false claims act defense attorney, submitting false claims to the government, fraudulent reimbursements, health care fraud resulting in death, U.S. Department of Justice (DOJ) prosecutions for healthcare fraud, civil monetary penalties lawyer, Medicare audit defense attorney, Medicare appeal legal, Medicare claims appeals lawyer, Medicare defense attorney, federal administrative complaint defense lawyer, Food & Drug Administration (FDA) audit defense attorney, Medicare appeals lawyer, health care legal counsel, Medicaid audit defense attorney, Medicare investigation defense, health law attorney, Florida health law attorney, The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999. Copyright © 2016 The Health Law Firm. All rights reserved.