ANDREW CUOMO

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ANDREW CUOMO ATTORNEY GENERAL STATE OF NEW
YORK MEDICAID FRAUD CONTROL UNIT 144 Exchange
Blvd. Suite 600 Rochester, New York 14614 (585)
262-2860
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Criminal Investigations

• Patient Abuse in Nursing Homes
• Financial Abuse of Guardianship
• Financial Abuse of POA
• All within the scope of a person who has
  responsibility for an individual

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STEIN COMMISSION
Weddings
Boats
Race Horses
Vacation Homes
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MEDICAID FRAUD CONTROL UNIT

• CREATED IN 1975 AS A RESULT OF ABUSES IN THE
  NURSING HOME INDUSTRY.
• IN 1977 BECAME MODEL FOR FEDERAL LEGISLATION
  CREATING THE STATE MFCUs.TEAM CONCEPT FOR
  FIGHTING FRAUD
• ATTORNEYS
• AUDITORS
• INVESTIGATORS
• SEPARATE AND DISTINCT FROM STATE MEDICAID AGENCY
• ATTORNEY GENERAL'S OFFICE - CRIMINAL DIVISION

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MFCU REGIONAL OFFICES

• ALBANY
• BUFFALO
• HAUPPAUGE
• NEW YORK CITY
• PEARL RIVER
• ROCHESTER
• SPECIAL PROJECTS
• SYRACUSE

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MFCU JURISDICTION

• STATEWIDE PROGRAM TO INVESTIGATE AND PROSECUTE
  VIOLATIONS OF STATE LAW INVOLVING
• PROVIDER FRAUD
• FRAUD IN THE ADMINISTRATION OF THE PROGRAM
• PATIENT ABUSE, NEGLECT AND MISAPPROPRATION OF
  FUNDS
• THE OPERATION, MANAGEMENT AND FUNDING OF
  HOSPITALS, NURSING HOMES, CLINICS AND ADULT CARE
  FACILITIES

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PA Complainants

• NYS Department of Health
• Family members
• Nursing home staff
• Anonymous complaints
• Self-generated

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The Department of Healths patient abuse hotline
number is [phone].
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Referrals

• Received
• 2003 145
• 2004 129
• 2005 108
• 2006 98
• 2007 64

• Opened
• 2003 11
• 2004 17
• 2005 11
• 2006 6
• 2007 4

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In accordance with the Public Health
Law2803-d(1), the following persons are
required to report instances of suspected
physical abuse, neglect and/or mistreatment to
the Department of Health

• Any operator or employee of such facility

• Any person who, or employee of any corporation,
  partnership, organization or other entity which,
  is under contract to provide patient care
  services in such facility, and any nursing home
  administrator, physician, medical examiner,
  coroner, physicians associate, specialists
  assistant, osteopath, chiropractor, physical
  therapist, occupational therapist, registered
  professional nurse, licensed practical nurse,
  dentist, podiatrist, optometrist, pharmacist,
  psychologist, certified social worker, speech
  pathologist and audiologist.

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The Public Health Law provides that every
patient shall have the right to receive adequate
and appropriate medical care Public Health Law
2803-c (3)(e) and be free from mental and
physical abuse and from physical and chemical
restraints Public Health Law 2803-c(3)(h)
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In addition, it is a violation of both the Penal
Law of the State of New York, and the Public
Health Law of the State of New York to physically
abuse, neglect or mistreat a patient in a
residential care facility or to fail to report
such an act.
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The term abuse shall mean inappropriatephysical
contact with a patient or resident of a
residential health care facility, while such
patient or resident is under the supervision of
the facility, which harms or is likely to harm
the patient or resident. Inappropriate physical
contact includes, but is not limited to,
striking, pinching, kicking, shoving, bumping
and sexual molestation. 10 NYCRR 81.1(a)
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The term neglect shall mean failure to provide
timely, consistent, safe, adequate and
appropriate services, treatment, and/or care to
a patient or resident of a residential health
care facility while such patientor resident is
under the supervision of the facility,including
but not limited to nutrition,
medication,therapies, sanitary clothing and
surroundings, andactivities of daily living.
10 NYCRR 81.1(c)
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The term mistreatment shall mean
inappropriateuse of medications, inappropriate
isolation or inappropriate use of physical or
chemical restraintson or of a patient or
resident of a residential healthcare facility,
while such patient or resident is under the
supervision of the facility. 10 NYCRR 81.1(b)
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Public Health Law 2803-d (7) statesIn
addition to any other penalties prescribed by
law, any person who commits an act of physical
abuse, neglect or mistreatment, or who fails to
report such an act as provided in this section,
shall be deemed to have violated this section and
shall be liable for a penalty pursuant to section
twelve of this chapter
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Public Health Law 12-b (2) provides that any
person who willfully violates any provisions of
the Health Law, or any regulation promulgated
thereunder, commits a crime and may be punished
by a term of imprisonment not exceeding one (1)
year, or by a fine not exceeding two thousand
dollars (2,000.00) or both.
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Penal Law

• Endangering the welfare vulnerable elderly person
• Falsifying Business Records
• Offering a False Instrument

• Rape
• Sexual Abuse
• Grand Larceny
• Criminal Possession
• Endangering the welfare incompetent or physically
  disable

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Penal Law, 260.25 states that A person is
guilty of endangering the welfare of an
incompetent or physically disabled person when he
knowingly acts in a manner likely to be injurious
to the physical, mental or moral welfare of a
person who is unable to care for himself or
herself because of physical disability, mental
disease or defect.Endangering is a class A
misdemeanor punishable by up to one year in jail
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(No Transcript)
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In November 1998, Kathys Law, a bill designed
to further protect nursing home residents and
home health care patients from abuse went into
effect.
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The law provides that a caregiver who
intentionally or recklessly causes physical
injury to a vulnerable elderly person, or who
subjects such a person to sexual contact without
the latters consent, is guilty of Endangering
the Welfare of a Vulnerable Elderly Person in the
Second Degree. Endangering the Welfare of a
Vulnerable Elderly Person in the Second Degree is
a class E felony, punishable by up to four
years of imprisonment in a New York State
Correctional facility. (Penal Law 260.32)
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If such a victim suffers a serious physical
injury, the level of crime is elevated to
Endangering the Welfare of a Vulnerable Elderly
Person in the First Degree, a class D felony,
punishable by up to seven years imprisonment.
(Penal Law 260.34)
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First Prosecution

• Under Kathys Law

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(No Transcript)
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Investigation

• Referral from NYSDOH
• Shanika Moore, HHA
• Benjamin Rini
• During routine care Rini suffered three broken
  ribs, a punctured lung and a broken pelvis
• Moore arrested, convicted, 6 months in jail

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Convictions

• 2003
• Joyce Williams, CNA jury guilty verdict
• Inappropriate language, roughly handled
• Injuries skin tears, bruising
• 12b(2) Willful violation of Health Laws

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Convictions

• Michael Brasley, CNA, guilty plea
• Transfer-2 person mechanical lift, conducted
  transfer by himself
• Injury fractured left hip
• 12b(2) Willful Violation of Health Laws

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Convictions

• Christine Dabrowski, RN, guilty plea
• Discontinued treatments w/o physicians orders,
  different enema, initialed MARS and TARS w/o
  providing services
• Willful Violation of Health Laws
• Falsifying Business Records

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Convictions

• Maryann Saxe, LPN stole Fenytal patches from an
  87 year-old hospice patient

• Heather Moore, RN charted phony blood glucose
  readings

• Jackie Dennis, LPN failed to irrigate change
  dressing on decubitus ulcer

• Julie Wannamaker, LPN- failed to dispense meds
  falsified records

• Pearl Banks, LPN failed to provide morphine to
  hospice patient falsified records

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Convictions

• 2004
• Michael Edwards, LPN, jury guilty verdict
• Sexual contact with a comatose nursing home
  resident for the purpose of sexually gratifying
  sexual desire of either party, when the person is
  incapable of consent by reason of being
  physically helpless
• Sexual Abuse 1st, Willful Violation of HL

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Convictions

• 2005
• Debra Wilson, CNA jury guilty verdict
• 2 person transfer, alone
• Skin tear- wrapped with towel left w/o
  reporting/documenting
• Endangering Welfare Incompetent Person
• Willful Violation of HL

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Convictions

• Brandie Perry, CNA guilty plea
• Kneed resident in testicles, fist punched in face
  and head
• Willful Violation of HL

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Convictions

• Tashiany Martin, LPN, guilty plea
• Worked at nursing home for 10 months after
  stealing identity of another nurse
• Unauthorized practice of a Profession, Identity
  Theft, Grand Larceny

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Old Habits Die Hard

• Jack GoodBody, Physical Therapist
• Terence Cardinal HCC
• Eastchester HCC, Split Rock Multi-Care Center
• Long Beach Nursing Home

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• SMILE - YOURE ON CANDID CAMERA
• THE AG MAY BE WATCHING

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• ABUSING OR NEGLECTING A NURSING HOME PATIENT IN
  NEW YORK CAN GET YOU SOME FACE TIME ON THE LOCAL
  NEWS

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CAMERA CASES

• Jennifer Matthews
• Northwood
• NY case

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Convictions

• Jennifer Matthews 14 convictions, civil lawsuit
  pending
• Northwood 5 conviction, jury guilty verdict
  against corporation

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Ø       Sanction and fine by the Department of
Health
Ø       Suspension by the Secretary of Health and
Human Services from the Medicare Medicaid
Programs for a minimum of five years  
Ø       Disciplinary action by the Department of
Educations Office of Professional Discipline
or the Department of Healths Office of
Professional Medical Discipline
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Any licensed person who commits an act of
physical abuse, mistreatment or neglect of a
person receiving care or services in a
residential health care facility, and any
licensed person required by this section to
report an instance of suspected physical abuse,
mistreatment or neglect of a person receiving
care of services in a residential health care
facility who fails to do so shall be guilty of
unprofessional conduct in the practice of his or
her profession. Public Health Law 2803-d (5)
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A nursing home may not employ individuals who
have been found guilty in a court of law of
abusing, neglecting or mistreating residents or
patients or who have a finding entered into the
New York State Nurse Aide Registry concerning
abuse, neglect or mistreatment of residents or
misappropriation of their property. (10 NYCRR
415.4)
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Guardianship

• Is a legal proceeding in the Surrogates Court
• Designates a person to act on the behalf of an
  individual who is mentally retarded and/or
  developmentally disabled
• Unable to manage his/her personal affairs without
  help
• Once obtained, lifetime, terminated by Court

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Types of Guardianship

• Guardianship of the Person
• Guardianship of the Property
• Standby Guardianship
• Limited Guardianship

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Guardianship of the Property

• Appointed by Surrogate Court
• Responsible for the management of all financial
  resources
• Expenditures must be approved by Surrogate Court
• Guardian of Property required to provide a
  detailed report of all financial transactions to
  the Surrogates Court

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Power of Attorney

• Nondurable POA for a specific transaction, like
  closing on the sale of residence, or out of the
  country.
• Durable POA enables agent to act for principal
  even after the Principal is not mentally
  competent or physically able to make decisions.
• Springing POA effective at a time chosen by the
  POA, usually the event is illness or disability
  of the principal.

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Legal Powers of POA

• Buy or sell your real estate
• Manage your property
• Conduct your banking transactions
• Invest, or not invest, your money
• Make legal claims and conduct litigation
• Attend to tax and retirement matters
• Make gifts on your behalf

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Power of Attorney

• Opinions of the Attorney General 1997
• Grant of any form of POA from a resident to a
  nursing home administrator, for the benefit of
  the nursing home, is inconsistent with the
  purpose of a POA
• Matter of Luby 1999 Suffolk County Court
• Nursing home administrator acceptance of POA to
  protect interests of the home is inconsistent
  with the duty of POA

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Power of Attorney

• Matter of Gershenoff 2003
• POA for aunt failed to adequately document
  163,000 that he withdrew from aunts account.
  No records were kept of this transaction or
  ongoing accounts of cash expenditures. Court
  ruled that he had a duty as POA and consequently,
  liable to his aunts estate for the amount
  unaccounted for. POA ruled invalid.

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Attorney GeneralsMedicaid Fraud Control Unit
144 Exchange Boulevard, Suite 600Rochester, New
York 14614(585) 262-2860