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Mom and Dad Are At Risk: Ohio Nursing Home Inspectors Are Seriously Understaffed

Mark Napier

The Cleveland Plain Dealer reported on April 23, 2017 that Ohio’s nursing home inspectors are seriously understaffed. The U.S. Centers of Medicare and Medicaid Services (“CMMS”) regulates and monitors nursing homes in part by inspections. The purpose of these inspections is to assure that nursing homes are following the federal regulations that promote a safe environment for the nursing home residents.

In most states, CMMS hires the state’s health department to inspect that state’s nursing homes on behalf of CMMS. Likewise in Ohio, CMMS contracts with the Ohio Department of Health to conduct mandatory annual and complaint inspections, also known as surveys. The ODH hires and trains nursing home inspectors to conduct these inspections. But, since 2011, ODH has failed to meet the federal deadline for conducting annual inspections. The reason is serious understaffing of nursing home inspectors.

In Ohio, there are currently 153 nursing home inspectors who examine Ohio’s 960 nursing homes and over 600 assisted-living facilities. But, many more are needed. The newspaper reported that Ohio’s neighboring states Michigan, Kentucky, and Illinois have one inspector for every four nursing homes. Using the numbers above, Ohio has one inspector for every ten nursing home and assisted living facilities.

The recruitment and retention of qualified, experienced nursing home inspectors is difficult because of the low pay. These inspectors are nurses, dieticians, environmental health professionals, and social workers. The state’s median entry level salary is $31,014. But, a registered nurse in Northeast Ohio can make $20,000 more in an entry-level position, according to interviews and statistics from Lorain Community College.

For more details, and to read this excellent report.


Another Nursing Home Chain is Sued for Overcharging Medicare

Mark Napier

The U.S. Department of Justice announced on April 21, 2015 that it has intervened in three False Claim Act lawsuits and filed a consolidated Complaint against HCR Manorcare. The Complaint alleges that HCR Manorcare knowingly and routinely submitted false claims to Medicare and Tricare for rehabilitation therapy services that were not medically necessary.

HCR Manorcare is based in Toledo, Ohio. It is one of the nation’s largest providers of short term post-acute and long term care. It operates approximately 281 skilled nursing facilities in 30 states, including seven facilities in the Greater Cincinnati area.

The DOJ’s Complaint was filed in the U.S. District Court for the Eastern District of Virginia. The Complaint alleges that HCR Manorcare pressured its skilled nursing facilities’ administrators and rehabilitation therapists to meet unrealistic financial goals. This resulted in billing for unnecessary services to residents.

According to the DOJ, HCR Manorcare set prospective billing goals designed to significantly increase revenues without regard to patients’ actual clinical needs. And, it threatened to terminate its skilled nursing facility managers and therapists if they did not administer the additional treatments necessary to qualify for the highest Medicare payments. In addition, HCR Manorcare also allegedly kept patients in its facilities longer than medically necessary so they could increase its receipt of Medicare payments.

HCR Manorcare in response has argued that the DOJ made the decision to intervene in the civil lawsuit despite its full cooperation with the government’s investigation. HCR Manorcare has stated the lawsuit is unjust and it will vigorously defend the company in court.

Follow this link for more information.



General Motors Ignition-Switch Deaths Rise to 30

Mark Napier

General Motors in the past year has recalled 2.6 million vehicles for a potentially fatal ignition switch design. For over a decade, GM executives and engineers were well aware that several makes and models had this flaw. An ignition switch design enabled the ignition key to slip out of run-mode when jostled causing the key to slip into accessory-mode. When this happened, the engine would shut off, disabling power steering, power brakes, and air bags.

In February, 2014, General Motors informed the National Highway Traffic Safety Administration (NHTSA) that it was recalling the following vehicles because of this ignition switch design defect:

2005 to 2010 Chevrolet Cobalt
2007 to 2010 Pontiac G-5
2003 to 2007 Saturn Ion
2006 to 2011 Chevrolet HHR
2006 to 2010 Pontiac Solstice
2007 to 2010 Saturn Sky

The events leading to the recall is yet another example of how trial lawyers serve the public interest. This recall may never have happened unless Attorney Lance Cooper of Marietta, GA had reported this design defect to the NHTSA. Mr. Cooper learned of the defect through documents obtained from GM in litigation brought on behalf of parents whose daughter died when her 2005 Cobalt shut down, forcing her into oncoming traffic, where another vehicle struck her. Documents showed that GM had known about the deadly effects since at least 2004.

Within a few weeks, NHTSA’s inquiry had exposed a massive cover-up spanning more than a decade.  GM first acknowledged 13 deaths and 31 injuries, but since a victims compensation program was instituted in August, the program so far has approved 30 death claims and 61 injury claims. The program has received 1,580 claims for ignition switch related injuries.



Mark Napier

Most people are aware that former Saturday Night Live cast member and 30 Rock television actor Tracy Morgan was critically injured in June when a Wal-Mart tractor trailer slammed into the rear of his limousine van on the New Jersey Turnpike. James McNair, another comedian and occupant of the van, was killed in the crash. It is alleged in a recently filed lawsuit that the tractor trailer driver had not slept for over 24 hours, and consequently fell asleep at the wheel.
This crash has begun to awaken the motoring public to the fact that nearly 4,000 persons are killed each year in truck-involved crashes according to the U.S. Department of Transportation. This number of deaths is more fatalities than aviation, boating, and railroad fatalities combined. A fatal truck-involved crash often costs millions in damages. But, a federal law passed in 1985 only requires trucking companies to carry $750,000 in liability insurance coverage to cover all damages from a crash. Because of such low liability insurance coverage limits, injured motorists themselves or taxpayers are left to pay the difference.
The Federal Motor Carrier Safety Administration (FMCSA) has recognized that current minimum liability insurance standards are far too low. In April of this year, the FMCSA released to Congress a report, which concluded that the costs of injuries and fatalities from truck crashes far exceed the current minimum insurance levels trucking companies are required to carry.
Congressman Matt Cartwright, Pennsylvania District 17, on July 18, 2013 introduced the Safe and Fair Environment on Highways Achieved through Underwriting Levels Act of 2013 (SAFE HAUL), H.R. 2730. This bill would increase cargo trucks’ minimum liability insurance requirements to meet today’s costs for truck crashes, and to update for inflation going forward.
The bill is currently pending in a transportation subcommittee. Please contact your Congressman today and urge him or her to co-sponsor and urge timely passage of the SAFE HAUL Act.


Ice and Snow Claims Can Be Slippery

Mark Napier

During the winter months, Freking & Betz receives many calls about slip and falls on ice and snow. The general rule in Ohio is that an owner or occupier of land ordinarily owes no duty to others to remove natural accumulations of ice and snow. The rationale for this rule is that the dangers from natural ice and snow accumulations are ordinarily so obvious and apparent that a person on the premises will discover those dangers and protect himself or herself against them.

But, there are exceptions to this general rule. The premises owner may be liable if the owner negligently causes or permits an unnatural accumulation of ice or snow. An “unnatural accumulation” is one that has been created by causes and factors other than inclement weather conditions. An example is a defective down spout that directs water across a sidewalk. The misdirected water freezes as “black ice,” and is not an open and obvious hazard.

Another exception is when a municipality passes an ordinance that premises owners are required to clear adjacent sidewalks.