Preview
FILED: NEW YORK COUNTY CLERK 06/28/2023 12:56 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/28/2023
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
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PEOPLE OF THE STATE OF NEW YORK by
LETITIA JAMES , Attorney General of the
State ofNew York,
Petitioner, AFFIDAVIT OF
STEPHANIE KEYSER, RN
-against-
ABRAHAM OPERATIONS ASSOCIATES
LLC d/b/a BETH ABRAHAM CENTER
FOR REHABILITATION AND NURSING,
DELAWARE OPERATIONS ASSOCIATES LLC
d/b/a BUFFALO CENTER FOR REHABILITATION
AND NURSING, HOLLIS OPERATING CO., LLC
d/b/a HOLLISWOOD CENTER FOR REHABILITATION
AND NURSING, SCHNUR OPERA TIO NS
ASSOCIATES LLC d/b/a MARTINE
CENTER FOR REHABILITATION AND NURSING,
LIGHT PROPERTY HOLDINGS ASSOCIATES LLC,
DELAWARE REAL PROPERTY ASSOCIATES LLC,
HOLLIS REAL EST ATE CO. LLC,
LIGHT OPERATIONAL HOLDINGS ASSOCIATES LLC,
LIGHT PROPERTY HOLDINGS II ASSOCIATES LLC,
CENTERS FOR CARE LLC d/b/a CENTERS HEAL TH CARE,
CFSC DOWNSTATE, LLC, BIS FUNDING CAPITAL LLC,
SKILLED STAFFING, LLC, KENNETH ROZENBERG, DARYL HAGLER
BETH ROZENBERG, JEFFREY SICKLICK,
LEO LERNER, REUVEN KAUFMAN, AMIR ABRAMCHIK, DA YID GREENBERG,
ELLIOT KAHAN, SOL BLUMENFELD, ARON GITTLESON,
AHARON LANTZITSKY,
JONATHAN HAGLER, and MORDECHAI "MOTI" HELLMAN,
Respondents.
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State of New York )
) ss.:
County of Albany )
Medical Analyst Stephanie Keyser, RN, being duly sworn, deposes and says:
1. I am a Registered Nurse ("RN") licensed in New York since 1985. I am currently
employed as a Medical Analyst by the Office of the New York State Attorney General, Medicaid
Fraud Control Unit ("MFCU"). I have been a Medical Analyst with MFCU since 2002 and I have
participated in hundreds of investigations related to Medicaid provider fraud and resident abuse,
mistreatment, and/or neglect in nursing homes.
2. In the course of my duties as a Medical Analyst, among other things, I review
medical records maintained by healthcare providers, including nursing home resident charts, care
plans, and other facility records. I also compare such records to those maintained by other
healthcare providers treating nursing home residents, such as outside physicians and hospitals. I
also interpret and explain medical concepts for other MFCU staffers.
3. Starting in 1979, prior to becoming a Medical Analyst with MFCU, I worked in
nursing homes in various positions including: nurse aide 1, Licensed Practical Nurse ("LPN"), and
as an RN. As an RN, I held positions as a Nurse Supervisor for 11 years, Staff Development
Coordinator for 6 years, and Director of Nursing for 6 years.
1
In 1987, the federal government mandated training and competency testing of all individuals performing nurse aide
duties in nursing homes. Individuals who successfully complete a state-approved nurse aide training program are
then eligible to take a written and clinical exam for certification to become a certified nurse aide ("CNA''). Prior to
this time, individuals received training and competencies from their employers to perform the duties of a nurse aide
but they were not certified.
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The Resident Care Plan
4. Nursing homes are required to evaluate and describe each resident's needs in a
Comprehensive Care Plan ("CCP"). An individualized CCP is intended to provide a complete
picture of the resident and his/her needs, including actual and potential problems, measurable
goals, and interventions specifically related to a problem. A nursing home must conduct an
evaluation of all identified problems to ensure that the resident's needs are adequately addressed
and that the interventions remain appropriate. The CCP identifies actual and potential health
concerns and directs a particular course of care and treatment, specifying, among other things,
pharmacological interventions, assistance required for Activities of Daily Living (ADLs)2, skin
care requirements, bowel and bladder care, and safety, psychological, social, and nutrition needs,
all necessary to maintain the highest level of function for a resident. A resident's CCP sets forth
specific interventions for the resident as well as the particular duties and tasks that must be
performed by the appropriate discipline (i.e. , CNAs, LPNs, RNs, Dietary, Therapy, Recreation,
Social Services). The staff at each New York nursing home is expected to execute the CCP for
each resident.
Duties of Nursing Staff at Nursing Homes
5. The direct caregivers in a nursing home, in increasing order of complexity of the
clinical training required, are the following: CNAs, LPNs, and RNs . CNAs perform the bulk of
the hands-on care that nursing home residents require as specified in each resident's CCP. CNAs
assist residents with ADLs, such as ambulation, transfers, feeding, hygiene, toileting, bathing,
dressing, bed making, turning and positioning (discussed in greater detail below), and other care
2
Activities of Daily Living related to personal care include bathing, dressing, toileting, mobility/ambulation,
transfers, and cognition.
3
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and comfort. LPNs are primarily responsible for medication and treatment administration,
monitoring vital signs, monitoring resident conditions, and supervision of CNAs.
6. RNs are responsible for the overall development of the CCPs, based on resident
assessments. Additionally, RNs are responsible for addressing any acute care needs, including
any changes in a resident's condition, resident or staff Accidents and Incidents3, and
communicating any changes to a resident's status with members of the interdisciplinary care team 4 .
RNs must ensure that all assessments, care, and treatment provided to residents are accurately and
completely documented in the residents' medical charts. This includes ensuring that the
documentation completed by LPNs and CNAs is accurate, complete, and timely, to provide an
accurate account of a resident's status at all times.
7. RNs are responsible for supervising the LPNs and CNAs and managing the resident
care units. RNs assist and supervise LPNs and CNAs on their assigned resident care units to ensure
that the delivery of care to all residents is as prescribed by the physician and by the established
individualized CCP. RNs must administer any medication or treatment that is outside of the scope
of duties of an LPN and they assume the primary responsibility for ensuring that residents' medical
care needs are met. RNs also supervise and hold accountable other direct care staf:P so that the
resident units operate in an effective, competent, and efficient manner.
8. RN staff include the Director of Nursing ("DON") or Director of Nursing Services
("DNS"), the Assistant Director of Nursing ("ADON"), Unit Managers, and Supervising RNs. A
3
An "Accident and Incident" is any unusual event that occurs as a result of a facility hazard, medical event, or
resident and/or staff altercation.
4
The interdisciplinary care team includes all team members responsible to participate in the care of the resident.
Team members, at a minimum include the physician, nurse, pharmacist, nutritionist, therapists, social services, and
recreational services. Some care members can include psychiatry, specialists, and consultants, etc.
5
Other direct care staff working on a resident care unit includes dietary aides, housekeeping and laundry staff, and
unit clerks.
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DON/DNS is required to be a registered professional nurse. Typically, the DON/DNS is
responsible for supervising the nursing care received by residents and reports to the administrator.
Nursing Homes Are Reguired to Document Care They Provide
9. In any nursing home, staff are required to accurately document what care is-and
is not-delivered. RNs and LPNs must record the administration of medications on Medication
Administration Records ("MARs") and the administration of treatments on Treatment
Administration Records ("TARs"). CNAs are also required to document care that they provide in
appropriate records, often referred to as CNA Documentation. Maintaining these records is part
and parcel of ensuring that residents receive timely and appropriate medication, treatment, and
care (e.g., therapy, recreation).
The Dangers of Insufficient Staffing to Nursing Home Residents
10. The adequacy of a nursing home's staffing is closely linked to the quality-of-care its
residents receive. Insufficient staffing occurs when a nursing home lacks enough direct care staff
to provide its residents with the care that the law requires and that is specified in the residents'
CCPs. When a nursing home has insufficient staff, residents may not receive care and services in
a timely manner, such as eating, bathing, toileting, medications, and treatment, and other care
required by their established CCPs. Lack of care due to insufficient staffing leads to neglect of the
resident, including complications such as weight loss, increased falls, pressure sores, infections,
depression, and other forms of illness. Complications due to lack of care and neglect can lead to
serious health conditions, including death.
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Insufficient Supervisory RN Staffing Results in Neglect of Residents
11. In nursing homes, RNs are the only members of the nursing staff that can assess
patients and perform certain specialized procedures. For example, if a traumatic event such as a
fall occurs, only RNs may assess the resident's need for further treatment. RNs are also responsible
for the overall supervision of the nursing staff. These duties include ensuring all residents receive
the required care as per their care plans, which may necessitate the reassignment of staff based
upon the needs of the facility.
12. The lack of RNs at the facility places the residents at risk of harm. RNs are required
to triage residents based on their immediate medical needs and conditions. They are often forced
to prioritize for which resident(s) care is immediate, focusing care on residents who require their
level of expertise. RNs are only permitted to delegate duties to subordinates if such individuals
are qualified by experience and/or training to complete such duties. 6 When a facility lacks
sufficient RN staffing, certain duties do not get completed and residents may be neglected.
Without sufficient RN staffing, nursing homes do not have the necessary supervision to ensure
that residents receive daily and necessary care in a timely, safe, and effect manner, in accordance
with their CCPs.
13. Nursing homes must ensure that they operate with adequate RN supervision7 on the
individual resident care units. RN supervision is vital on all shifts, as LPNs cannot perform health
assessments and certain other duties. Increased RN coverage improves early detection of resident
6
Education Law §29 .1 (b )( 10) prohibits delegating professional responsibilities to a person when the licensee
delegating such responsibilities knows or has reason to know that such person is not qualified, by training, by
experience, or by licensure, to perform them .
7
10 NYCRR § 415.13 (Nursing services and Minimum Nursing Staff Requirements) requires that the facility shall
use the services of a registered professional nurse for at least 8 consecutive hours a day, 7 days a week, or more
often as necessary to comply with the minimum staffing requirements.
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issues and resident outcomes, thereby improving overall compliance and systemic outcomes at the
facility.
Insufficient Staffing Creates and Exacerbates Many Hazards Residents Face
14. As set forth below, there are a multitude of ways in which insufficient staffing at a
nursing home may adversely impact the care and health of its residents.
15. Injuries Caused by Incidents, Accidents Due to Insufficient Staffing -
Accidents and Incidents, which occur more frequently in nursing homes with insufficient staffing,
are a leading cause of injury in the elderly population. A nursing home must ensure that "the
resident environment remains as free of accident hazards as is possible," and that "each resident
receives adequate supervision and assistance devices to prevent accidents." (42 CFR § 483.25[d]).
As noted above, an Accident and Incident is any unusual event that occurs as a result of a facility
hazard, medical event, or resident and/or staff altercation. These events must be recorded and
reviewed to determine the root cause of the incident and to evaluate any preventative measures to
avoid reoccurrence.
16. Falls from Unanswered Call Bells by Residents Seeking Help - The purpose of
a call bell is for the resident to indicate an immediate need for care and attention, such as toileting,
difficulty breathing, or other change in well-being, or to report a danger or potential danger in his
or her room. Other needs for which one would use a call bell include the need for assistance in
obtaining an object that is out of his or her reach, asking a question, or seeking food or drink.
Ignoring a call bell is tantamount to refusing to meet a resident's needs. When a nursing home has
insufficient staff, staff members often do not have the ability to timely answer call bells. The lack
of responsiveness to call bells increases the risk of falls as residents may attempt to take care of
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their needs themselves as opposed to waiting for assistance from staff. For instance, residents
might try to stand up or get out of bed by themselves, and then try to walk to address their needs
that are not met by the staff. These unsafe movements often lead residents to fall, putting them at
risk for serious injuries that can be life threatening. The lack of sufficient staff to ensure that call
bells are timely answered, and resident issues are addressed can result in falls due to unsafe
attempts at independence and umealized worsening in health conditions.
17. Dangers from Lack of Infection Control Protocols due to Insufficient Staffing
- Infection prevention and control is a critical aspect of basic nursing home care. Nursing homes
are expected to take all reasonable steps to avoid the transmission of disease, and this was
especially critical during the COVID-19 pandemic. However, inadequately staffed nursing homes
cannot ensure that proper infection control procedures are implemented or followed. For example,
nursing homes must have sufficient staff to be able to properly sanitize and store all equipment
and to ensure that staff members have sufficient time to wash their hands in between contact with
residents, so as to prevent the spread of infection. Moreover, during the pandemic, nursing homes
were required, where practicable, to maintain separate staff teams: one group to care for COVID-
19 positive residents and a second group to care for COVID-19 negative residents. Failure to
maintain sufficient staffing makes this cohorting difficult, if not impossible, and increases the risk
of diseases transmission. Indeed, when staff members care for both COVID-19 positive/presumed
residents and COVID-19 negative residents (often because there is not enough staff to avoid this
arrangement), they might spread the virus to uninfected residents. Similarly, when staff moves
between COVID-19 positive and COVID-19 negative residents ' rooms without changing Personal
Protective Equipment ("PPE"), they risk spreading COVID-19. When a facility is short staffed, it
is common for staff members to feel rushed and therefore take shortcuts, such as failing to change
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PPE and wash their hands when moving from one resident to the next, irrespective of his or her
infection status.
18. Further, during the COVID-19 pandemic, nursing homes needed sufficient staff
members to properly screen employees upon arrival to detect signs and symptoms of COVID-19.
Pre-screening of all staff was required to be done during the pandemic as a measure to ensure that
staff infected with CO VID-19 would not transmit the illness to residents and staff. The interaction
of symptomatic staff members with residents and/or other staff members heightened the risk of
transmission of CO VID-19.
19. Adequate staffing at a nursing home is similarly critical to the monitoring and
redirection of residents with brain injuries or impaired cognitive conditions. Nursing homes are
required to supervise residents, especially those with a limited ability to follow precautions, for
their safety and the safety of others. Increased monitoring is essential in this population of
residents due to their inability to identify risks of harm, poor safety awareness, and their lack of
ability to consistently follow simple commands and re-direction, particularly during outbreaks of
communicable disease or illness, such as the COVID-19 health emergency. Residents who suffer
from psychological and/or cognitive conditions, including dementia8 , are more likely to wander
into rooms and areas not designated for them if staff do not adequately monitor them. The failure
to properly monitor and supervise residents from wandering around a facility while infected with
a contagious illness, or to prevent residents from wandering into a room of a resident on isolation
with a contagious illness, is a failure of infection control protocols.
8
Per the U.S. Centers for Disease Control and Prevention ("CDC"), dementia is not a specific disease but is, rather,
a general term for the impaired ability to remember, think, or make decisions that interferes with doing everyday
activities. The most common type of dementia seen in elderly patients is Alzheimer's Disease which is a terminal
disease that cannot be reversed or cured. Other types of dementia include Vascular, Lewy body, and Frontotemporal
dementia.
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20. Pressure Ulcers Caused by Neglect from Insufficient Staffing- Pressure ulcers,
also known as pressure sores, pressure injuries, or decubitus ulcers, are serious medical conditions.
A pressure ulcer is a localized injury to the skin and possibly underlying tissue, that is usually over
a bony prominence (e.g., hip, knee, heel, foot, head, spine) and is a result of prolonged pressure or
friction caused by shearing9 . The skin is the largest organ in the body and it requires an adequate
supply of blood to provide oxygen and nutrients to maintain skin health and integrity. Prolonged
pressure on the skin, primarily in areas where bones are near the skin's surface, inhibits adequate
blood supply to the area, which increases the risk of pressure ulcer development. Pressure ulcers
can develop quickly, in as little as two hours, if the pressure is not relieved by use of pressure-
relieving devices and changes to the position of the body. Direct care staff are required to observe
and report any changes to skin conditions that are observed when performing or assisting with
resident personal care.
21. The most common cause of pressure ulcers in the nursing home setting is the failure
to change a resident's position for an extended period of time. The standard of care is to assist a
resident to change body position at least every two hours. When a resident is lying down in bed
in one position for hours at a time, excessive pressure is placed on parts of the resident's body,
such as his or her heels, buttocks, back, and hips, compromising blood flow to the area for an
extended period. This lack of blood flow causes the skin tissue to deteriorate and increases the
risk of a pressure sore. The risk of pressure sores is dramatically reduced if CNAs turn and position
residents from side to side and on their back at a minimum of every two hours. Pressure sores too
9
Shearing is when the skin is moved in an opposite direction against a fixed surface, like a rug bum caused by
sliding. Shearing is commonly caused when an individual pulls a sheet out from under a resident as opposed to
following the proper technique.
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often occur when a nursing home resident is bedridden or chairbound and the nursing home fails
to provide the minimum care necessary to turn and reposition the resident.
22. Pressure ulcers that develop due to the failure to prevent, identify, and treat pressure
sores, can be a sign of neglect and can lead to agonizing pain, bone infections called Osteomyelitis,
sepsis, and death.
23. The industry standard for defining the four stages of pressure ulcers is as follows:
Stage 1: a superficial injury on intact skin with non-blanchable redness of a localized area usually
over a bony prominence. Stage 2: partial thickness loss of dermis presenting as a shallow open
ulcer with a red or pink wound bed without slough or bruising; it may also present as an intact or
open/ruptured blister. Stage 3: Full thickness tissue loss. Subcutaneous fat may be visible, but
bone, tendon, or muscle is not exposed. Slough 10 may be present but does not obscure the depth
of tissue loss; may include undermining and tunneling. Stage 4: Full thickness tissue loss, with
exposed bone, tendon, or muscle. Slough or eschar 11 may be present on some parts of the wound
bed.
24. Nursing homes are required to take precautions and provide care to prevent pressure
ulcers in the resident population. Facilities should perform comprehensive skin assessments of
their residents to determine residents' risk for the development of pressure ulcers. At a minimum,
these assessments must be conducted upon admission of a resident and at least quarterly thereafter.
Weekly skin inspections are a common and effective intervention tool for early detection of skin
abnormalities. As mentioned earlier, daily skin observations during personal care and the reporting
of any concerns or changes to the skin are essential to early detection of pressure sores. To prevent
10
Slough is necrotic tissue, generally yellow in color and is often found in Stage 3 and 4 pressure ulcers. Slough is
removed from the wound bed by specialized dressings that cause debridement or by mechanical debridement.
11
Eschar is dead or necrotic tissue, usually black or brown and is scab -like. This dead tissue is adherent to the
wound bed and requires debridement to be removed from the wound.
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pressure ulcers from developing, nursing homes must frequently change the position of residents '
bodies (such as by rolling the resident from one side to the other, or from one side to his or her
back), which is often referred to as turning and positioning. Nursing homes must also
appropriately use assistive devices and appropriate support surfaces, such as pressure-reducing
specialized chair cushions and mattresses, to alleviate and reduce some of the pressure on the skin.
By taking these precautions, if a Stage 1 pressure ulcer does develop, treatment can be
administered at the earliest moment to mitigate the likelihood that the injury progresses to a Stage
2 or worse.
25. Residents with risk factors, such as cognitive impairment, bowel and bladder
incontinence, refusals or non-compliance with care, impaired blood flow, impaired/decreased
mobility and functio nal ability, and co-morbidities are more susceptible to developing pressure
ulcers. These risk factors may increase due to an acute illness or infection and may require
additional evaluation and CCP interventions. If a facility fails to maintain sufficient direct care
staff to prevent and treat pressure ulcers, the facility has neglected the needs of its residents, which
often results in harm to the residents.
26. Malnutrition, Hydration, Dehydration, Weight Loss, Aspiration Caused by
Insufficient Staffing - Providing food and fluids to a nursing home resident is essential to sustain
the resident' s life, health, and well-being. Malnutrition or dehydration 12 can lead to a host of
physical issues, including weakness, infections, delirium, cardiac arrhythmia, and overall
12
Dehydration, or the lack of appropriate and sufficient fluids , can lead to a multitude of physical issues and
ailments, including weakness, infections, delirium, and cardiac arrhythmia. Dehydration can impair a resident' s
ability to heal from injury and cause overall deterioration of their body and decline in health. This can be
particularly serious for nursing home residents, who are often already in a compromised state. Severe dehydration
can lead to a condition called delirium which is a serious medical condition often triggered by infection; it is a
sudden onset of change in cognition that resembles dementia. A resident suffering from severe dehydration can
exhibit combative behaviors, refuse care, and be unaware of their surroundings and familiar family members and
caregivers. As the resident is provided with hydration and/or other treatment, the delirium can resolve.
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deterioration of the body. These conditions are often the result of neglect or mistreatment, and
they can also take an emotional and psychological toll on a resident.
27. Sufficient nursing home staffing plays a pivotal role in ensuring that a resident's
proper nutritional needs are met. Many residents require physical assistance and/or supervision
while eating. Such assistance may include providing encouragement to continue eating,
supervising meals to ensure the resident does not aspirate, or physically feeding of a resident who
is disabled and unable to feed themselves. A nursing home that operates with insufficient staffing
creates a risk that its residents will not be fed or provided hydration, timely or at all, thereby
resulting in malnutrition and weight loss that can, in turn, cause additional physical ailments and
overall decline in a resident's health, and hinder a resident's ability to heal from injury.
28. Dangers of Medication Errors Caused by Insufficient Staffing-Nursing homes
that operate with insufficient staffing are more likely to commit errors in the administration of
medication to their residents, as insufficient staffing adversely impacts nurses ' ability to give
adequate care and attention to the task at hand. Medication errors include: administration of
unauthorized medication to a resident; administration of the wrong dose, wrong route of
administration, wrong dosage form (e.g., liquid when pill was ordered), or wrong time for a
medication; administration of medication to a resident outside of physician ordered parameters 13 ;
and omission of a physician-ordered medication. Significant medication errors can be dangerous
to a resident's health and safety and can even cause death. The primary cause of a medication
error is the interruption of the medication nurse or licensed nurse during a medication pass.
13
Some medication orders have parameters set by the physician. These parameters will determine if a medication is
to be administered, or the dose of the medication to be administered, based on certain parameters. For example,
insulin used to treat diabetics can require a certain number of units to be administered based on the resident blood
glucose reading.
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Common interruptions include assisting CNAs with transfers or other resident care,
communicating with physicians, families, and others regarding resident issues, and re-directing
cognitively impaired residents. Insufficient staff on a nursing unit during a medication pass may
cause the nurse to make a mistake during the process of administering medications, which can
result in serious injury to a resident.
29. Dangers of Overmedicating Residents Arising from Insufficient Staffing - A
resident has the right to be free from any physical or chemical restraints imposed for purposes of
discipline or convenience of staff. A chemical restraint is the inappropriate use of medication to
restrict movement or suppress thought and/or free will. Psychotropic drugs frequently act as a
chemical restraint by causing side effects such as lethargy. Nursing homes that are understaffed
might resort to the use of chemical restraints to reduce combative or difficult resident behaviors,
thereby reducing the amount of staff attention required to care for the residents. This is especially
true for residents suffering from dementia, to whom these drugs might be given to make the
residents more manageable, especially when staffing is low.
30. Activities of Daily Living, Lack of Personal Care, and Loss of Dignity from
Insufficient Staffing - Nursing home residents need assistance with ADLs and personal hygiene
due to physical and cognitive impairments. A nursing home must provide care and services
relating to ADLs, which include: (1) "Hygiene - bathing, dressing, grooming and oral care;" (2)
"Mobility- transfer and ambulation, including walking;" (3) "Elimination - toileting;" (4) "Dining
- eating, including meals and snacks;" and (5) "Communication, including speech, language [and]
other functional communication systems." 42 CFR § 483.24(b).
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31. Nursing home residents may suffer from unavoidable declines in their ADLs when
a nursing home operator fails to operate a nursing home with sufficient staff to provide the required
care and services to residents as necessary.
32. Mobility/ Ambulation - Mobility is critical to the overall health of nursing home
residents. Lack of mobility causes residents to suffer from complications such as contractures of
joints 14, blood clots, constipation, pneumonia, urinary tract infections, and loss of independence.
At the time of admission, a resident is assessed by the Physical Therapy and Occupational Therapy
staff to determine his/her baseline functional status; this evaluation is then repeated at least
quarterly and more often, as needed. Based on the results of the evaluation, a plan is established
to maintain or improve the resident's functional status and to prevent avoidable declines.
Interventions, such as ambulation programs, range of motion exercises, and the use of devices,
such as splints to maintain proper positioning of a limb, can all be instituted, based on a resident's
need, to prevent decline. Mobility / ambulation interventions require sufficient numbers of staff
so that the residents can complete all interventions as instructed and to ensure compliance with the
CCP. Inadequate staffing prevents staff from performing such tasks, leaving residents to suffer
complications related to a lack of mobility that are often painful and self-limiting.
33. Some residents require staff to use a mechanical lifting device, often referred to as
a "Hoyer Lift' to assist them into and out of bed. A Hoyer lift is a mechanical lifting device that
is used in nursing homes to move residents who are unable to bear weight on their legs, or are
unable to participate in the transfer process, and who are totally dependent on staff members to
transfer them from one surface to another. Hoyer lifts are operated by manual hydraulic lift, or
are battery or electric powered. The transfer of a patient by means of a Hoyer lift requires two
14
Contractures are the shortening of muscles tendons and tissues causing the joints to be stiff and tight. This
condition is caused by inactivity or scarring from an injury.
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nursing home staff members for a number of reasons: (1) one person must operate the lift while
the other staff member needs to physically guide the resident to his or her destination; (2) two
individuals are needed to ensure proper attachment of the sling to the lift for safety purposes; and
(3) to ensure that at least one staff member is available at all times to provide reassurance to the
resident during the procedure.
34. Moreover, when facilities are understaffed, individual staff members may operate
Hoyer lifts by themselves without assistance, thereby increasing the risk of falls and serious
physical injuries, including resident death.
35. Range of Motion - Range of Motion ("ROM") means the full movement potential
of a person's joint. If a resident has limited ROM or contractures, Range of Motion exercises will
be prescribed. ROM exercises are performed on joints to increase the range of the joint. As
muscles atrophy (a wasting or loss of muscle tissue), they shorten, causing the joint to lose full
range of motion. ROM exercises of the joints help to stretch the muscle and improve
mobility. Passive ROM exercises are performed by the caregivers with no participation from the
resident while Active ROM exercises are those for which no caregiver assistance is needed. CNAs
are trained to provide ROM exercises, as a part of a resident's daily care, to prevent further decline
to his or her joint. In performing Passive ROM exercises, CNAs are instructed as to which joints
on the resident require ROM exercises; the number of repetitions per session, how many sessions
per day, and actions to avoid so that the joint is not moved beyond the point of discomfort or pain.
When nursing homes operate with insufficient staffing, CNAs may fail to perform necessary ROM
exercises which results in further contracture(s) to the joint(s) causing pain and further diminished
mobility. When facilities fail to adequately staff their units based on the needs and acuity of the
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residents, staff members are more likely to rush through tasks and less likely to provide the
necessary range of motion exercises to the residents.
36. Toileting- Bowel and bladder incontinence are conditions affecting many nursing
home residents. "Toileting" refers to the assistance provided to residents with all aspects of
toileting, depending on their individual needs. "Assistance with toileting" can mean a variety of
things, including helping a resident on and off the toilet, helping a resident cleanse his or her body
as part of toileting, adjusting his or her clothing after the toileting is completed, or use of a bedpan
or urinal by a resident. Residents who do not use the toilet will require management of specific
devices, for example, an in-dwelling urinary catheter 15 or other type of catheter for continuous
drainage of urine, or a colostomy 16 or other type of stoma for continuous drainage of bowel, and/or
incontinence briefs for residents who have no control of bowel and bladder. The resident's CCP
dictates the number of staff required to provide the assistance. The standard of care for assisting
a resident with toileting and incontinence care is to do so at least every two hours, if not more
frequently , as needed. That means that in a typical 8-hour shift, all residents on a nursing care unit
must receive the required toileting assistance a minimum of 4 times.
37. To care for a resident on a Bladder and/or Bowel toileting program 17, the staff must
follow specific interventions in the resident' s CCP . Residents on this program may require more
frequent toileting than every two hours, which places an added burden on direct care staff.
38. Certain nursing home residents have colostomy bags, which need to be timely
emptied. Failure to timely empty a colostomy bag can cause it to burst open soiling the resident
15
An Indwelling Urinary Catheter is inserted in the bladder to allow for the continuous drainage of urine.
16
A Colostomy is a surgical opening in the gastrointestinal tract that allows for the continuous elimination of bowel
waste.
17
A Bladder and/or Bowel plan is an individualized resident-centered training program that may reduce or eliminate
urinary or bowel incontinence.
17
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and cause embarrassment to the resident. A colostomy bag is a collection bag for feces that fits
over a stoma, which is an opening created by a colostomy. A colostomy is a surgical procedure
that involves bringing the colon through an opening of the abdominal wall, turning it under like a
cuff, and stitching it, to allow fecal matter to be eliminated from the body.
39. A nursing home's failure to promptly assist a resident with toileting and elimination
needs can contribute to severe health problems and injuries, including pain and distension, UTis,
kidney damage, chronic loss of bladder and bowel control, breakdown in skin integrity, infections
to existing pressure sores, and falls to those residents who require assistance but sought to address
their toileting needs independently. Avoiding instances of bowel and bladder incontinence is
essential to maintaining an individual's dignity and nursing homes must employ enough staff to
meet the toileting needs of all of its residents.
40. When nursing homes operate with insufficient staffing, the nursing homes' direct
care staff cannot timely respond to resident call bells, forcing residents to suffer excessive delays
in receiving assistance with toileting.
41. Dining- 42 CFR §483.60 (Food and Nutrition Services) states that a facility must
provide each resident with a nourishing, palatable, well-balanced diet that meets his or her daily
nutritional and special dietary needs. At the time of admission, and at least quarterly thereafter,
the nursing home must conduct an assessment of each resident's dietary needs. Failure to maintain
a resident's nutritional needs can lead to serious health conditions such as malnutrition, pressure
sores, heart arrythmias, organ failure, and weight loss.
42. Each resident must be provided with meals in compliance with his or her physician-
prescribed diet. The prescribed diet will set forth any dietary restrictions based on chronic
conditions, as well as the appropriate texture of food and consistency of liquids.
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Preview
FILED: NEW YORK COUNTY CLERK 06/28/2023 12:56 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/28/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY --------------------------------------------------------------------X PEOPLE OF THE STATE OF NEW YORK by LETITIA JAMES , Attorney General of the State ofNew York, Petitioner, AFFIDAVIT OF STEPHANIE KEYSER, RN -against- ABRAHAM OPERATIONS ASSOCIATES LLC d/b/a BETH ABRAHAM CENTER FOR REHABILITATION AND NURSING, DELAWARE OPERATIONS ASSOCIATES LLC d/b/a BUFFALO CENTER FOR REHABILITATION AND NURSING, HOLLIS OPERATING CO., LLC d/b/a HOLLISWOOD CENTER FOR REHABILITATION AND NURSING, SCHNUR OPERA TIO NS ASSOCIATES LLC d/b/a MARTINE CENTER FOR REHABILITATION AND NURSING, LIGHT PROPERTY HOLDINGS ASSOCIATES LLC, DELAWARE REAL PROPERTY ASSOCIATES LLC, HOLLIS REAL EST ATE CO. LLC, LIGHT OPERATIONAL HOLDINGS ASSOCIATES LLC, LIGHT PROPERTY HOLDINGS II ASSOCIATES LLC, CENTERS FOR CARE LLC d/b/a CENTERS HEAL TH CARE, CFSC DOWNSTATE, LLC, BIS FUNDING CAPITAL LLC, SKILLED STAFFING, LLC, KENNETH ROZENBERG, DARYL HAGLER BETH ROZENBERG, JEFFREY SICKLICK, LEO LERNER, REUVEN KAUFMAN, AMIR ABRAMCHIK, DA YID GREENBERG, ELLIOT KAHAN, SOL BLUMENFELD, ARON GITTLESON, AHARON LANTZITSKY, JONATHAN HAGLER, and MORDECHAI "MOTI" HELLMAN, Respondents. --------------------------------------------------------------------X 1 of 24 FILED: NEW YORK COUNTY CLERK 06/28/2023 12:56 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/28/2023 State of New York ) ) ss.: County of Albany ) Medical Analyst Stephanie Keyser, RN, being duly sworn, deposes and says: 1. I am a Registered Nurse ("RN") licensed in New York since 1985. I am currently employed as a Medical Analyst by the Office of the New York State Attorney General, Medicaid Fraud Control Unit ("MFCU"). I have been a Medical Analyst with MFCU since 2002 and I have participated in hundreds of investigations related to Medicaid provider fraud and resident abuse, mistreatment, and/or neglect in nursing homes. 2. In the course of my duties as a Medical Analyst, among other things, I review medical records maintained by healthcare providers, including nursing home resident charts, care plans, and other facility records. I also compare such records to those maintained by other healthcare providers treating nursing home residents, such as outside physicians and hospitals. I also interpret and explain medical concepts for other MFCU staffers. 3. Starting in 1979, prior to becoming a Medical Analyst with MFCU, I worked in nursing homes in various positions including: nurse aide 1, Licensed Practical Nurse ("LPN"), and as an RN. As an RN, I held positions as a Nurse Supervisor for 11 years, Staff Development Coordinator for 6 years, and Director of Nursing for 6 years. 1 In 1987, the federal government mandated training and competency testing of all individuals performing nurse aide duties in nursing homes. Individuals who successfully complete a state-approved nurse aide training program are then eligible to take a written and clinical exam for certification to become a certified nurse aide ("CNA''). Prior to this time, individuals received training and competencies from their employers to perform the duties of a nurse aide but they were not certified. 2 2 of 24 FILED: NEW YORK COUNTY CLERK 06/28/2023 12:56 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/28/2023 The Resident Care Plan 4. Nursing homes are required to evaluate and describe each resident's needs in a Comprehensive Care Plan ("CCP"). An individualized CCP is intended to provide a complete picture of the resident and his/her needs, including actual and potential problems, measurable goals, and interventions specifically related to a problem. A nursing home must conduct an evaluation of all identified problems to ensure that the resident's needs are adequately addressed and that the interventions remain appropriate. The CCP identifies actual and potential health concerns and directs a particular course of care and treatment, specifying, among other things, pharmacological interventions, assistance required for Activities of Daily Living (ADLs)2, skin care requirements, bowel and bladder care, and safety, psychological, social, and nutrition needs, all necessary to maintain the highest level of function for a resident. A resident's CCP sets forth specific interventions for the resident as well as the particular duties and tasks that must be performed by the appropriate discipline (i.e. , CNAs, LPNs, RNs, Dietary, Therapy, Recreation, Social Services). The staff at each New York nursing home is expected to execute the CCP for each resident. Duties of Nursing Staff at Nursing Homes 5. The direct caregivers in a nursing home, in increasing order of complexity of the clinical training required, are the following: CNAs, LPNs, and RNs . CNAs perform the bulk of the hands-on care that nursing home residents require as specified in each resident's CCP. CNAs assist residents with ADLs, such as ambulation, transfers, feeding, hygiene, toileting, bathing, dressing, bed making, turning and positioning (discussed in greater detail below), and other care 2 Activities of Daily Living related to personal care include bathing, dressing, toileting, mobility/ambulation, transfers, and cognition. 3 3 of 24 FILED: NEW YORK COUNTY CLERK 06/28/2023 12:56 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/28/2023 and comfort. LPNs are primarily responsible for medication and treatment administration, monitoring vital signs, monitoring resident conditions, and supervision of CNAs. 6. RNs are responsible for the overall development of the CCPs, based on resident assessments. Additionally, RNs are responsible for addressing any acute care needs, including any changes in a resident's condition, resident or staff Accidents and Incidents3, and communicating any changes to a resident's status with members of the interdisciplinary care team 4 . RNs must ensure that all assessments, care, and treatment provided to residents are accurately and completely documented in the residents' medical charts. This includes ensuring that the documentation completed by LPNs and CNAs is accurate, complete, and timely, to provide an accurate account of a resident's status at all times. 7. RNs are responsible for supervising the LPNs and CNAs and managing the resident care units. RNs assist and supervise LPNs and CNAs on their assigned resident care units to ensure that the delivery of care to all residents is as prescribed by the physician and by the established individualized CCP. RNs must administer any medication or treatment that is outside of the scope of duties of an LPN and they assume the primary responsibility for ensuring that residents' medical care needs are met. RNs also supervise and hold accountable other direct care staf:P so that the resident units operate in an effective, competent, and efficient manner. 8. RN staff include the Director of Nursing ("DON") or Director of Nursing Services ("DNS"), the Assistant Director of Nursing ("ADON"), Unit Managers, and Supervising RNs. A 3 An "Accident and Incident" is any unusual event that occurs as a result of a facility hazard, medical event, or resident and/or staff altercation. 4 The interdisciplinary care team includes all team members responsible to participate in the care of the resident. Team members, at a minimum include the physician, nurse, pharmacist, nutritionist, therapists, social services, and recreational services. Some care members can include psychiatry, specialists, and consultants, etc. 5 Other direct care staff working on a resident care unit includes dietary aides, housekeeping and laundry staff, and unit clerks. 4 4 of 24 FILED: NEW YORK COUNTY CLERK 06/28/2023 12:56 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/28/2023 DON/DNS is required to be a registered professional nurse. Typically, the DON/DNS is responsible for supervising the nursing care received by residents and reports to the administrator. Nursing Homes Are Reguired to Document Care They Provide 9. In any nursing home, staff are required to accurately document what care is-and is not-delivered. RNs and LPNs must record the administration of medications on Medication Administration Records ("MARs") and the administration of treatments on Treatment Administration Records ("TARs"). CNAs are also required to document care that they provide in appropriate records, often referred to as CNA Documentation. Maintaining these records is part and parcel of ensuring that residents receive timely and appropriate medication, treatment, and care (e.g., therapy, recreation). The Dangers of Insufficient Staffing to Nursing Home Residents 10. The adequacy of a nursing home's staffing is closely linked to the quality-of-care its residents receive. Insufficient staffing occurs when a nursing home lacks enough direct care staff to provide its residents with the care that the law requires and that is specified in the residents' CCPs. When a nursing home has insufficient staff, residents may not receive care and services in a timely manner, such as eating, bathing, toileting, medications, and treatment, and other care required by their established CCPs. Lack of care due to insufficient staffing leads to neglect of the resident, including complications such as weight loss, increased falls, pressure sores, infections, depression, and other forms of illness. Complications due to lack of care and neglect can lead to serious health conditions, including death. 5 5 of 24 FILED: NEW YORK COUNTY CLERK 06/28/2023 12:56 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/28/2023 Insufficient Supervisory RN Staffing Results in Neglect of Residents 11. In nursing homes, RNs are the only members of the nursing staff that can assess patients and perform certain specialized procedures. For example, if a traumatic event such as a fall occurs, only RNs may assess the resident's need for further treatment. RNs are also responsible for the overall supervision of the nursing staff. These duties include ensuring all residents receive the required care as per their care plans, which may necessitate the reassignment of staff based upon the needs of the facility. 12. The lack of RNs at the facility places the residents at risk of harm. RNs are required to triage residents based on their immediate medical needs and conditions. They are often forced to prioritize for which resident(s) care is immediate, focusing care on residents who require their level of expertise. RNs are only permitted to delegate duties to subordinates if such individuals are qualified by experience and/or training to complete such duties. 6 When a facility lacks sufficient RN staffing, certain duties do not get completed and residents may be neglected. Without sufficient RN staffing, nursing homes do not have the necessary supervision to ensure that residents receive daily and necessary care in a timely, safe, and effect manner, in accordance with their CCPs. 13. Nursing homes must ensure that they operate with adequate RN supervision7 on the individual resident care units. RN supervision is vital on all shifts, as LPNs cannot perform health assessments and certain other duties. Increased RN coverage improves early detection of resident 6 Education Law §29 .1 (b )( 10) prohibits delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified, by training, by experience, or by licensure, to perform them . 7 10 NYCRR § 415.13 (Nursing services and Minimum Nursing Staff Requirements) requires that the facility shall use the services of a registered professional nurse for at least 8 consecutive hours a day, 7 days a week, or more often as necessary to comply with the minimum staffing requirements. 6 6 of 24 FILED: NEW YORK COUNTY CLERK 06/28/2023 12:56 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/28/2023 issues and resident outcomes, thereby improving overall compliance and systemic outcomes at the facility. Insufficient Staffing Creates and Exacerbates Many Hazards Residents Face 14. As set forth below, there are a multitude of ways in which insufficient staffing at a nursing home may adversely impact the care and health of its residents. 15. Injuries Caused by Incidents, Accidents Due to Insufficient Staffing - Accidents and Incidents, which occur more frequently in nursing homes with insufficient staffing, are a leading cause of injury in the elderly population. A nursing home must ensure that "the resident environment remains as free of accident hazards as is possible," and that "each resident receives adequate supervision and assistance devices to prevent accidents." (42 CFR § 483.25[d]). As noted above, an Accident and Incident is any unusual event that occurs as a result of a facility hazard, medical event, or resident and/or staff altercation. These events must be recorded and reviewed to determine the root cause of the incident and to evaluate any preventative measures to avoid reoccurrence. 16. Falls from Unanswered Call Bells by Residents Seeking Help - The purpose of a call bell is for the resident to indicate an immediate need for care and attention, such as toileting, difficulty breathing, or other change in well-being, or to report a danger or potential danger in his or her room. Other needs for which one would use a call bell include the need for assistance in obtaining an object that is out of his or her reach, asking a question, or seeking food or drink. Ignoring a call bell is tantamount to refusing to meet a resident's needs. When a nursing home has insufficient staff, staff members often do not have the ability to timely answer call bells. The lack of responsiveness to call bells increases the risk of falls as residents may attempt to take care of 7 7 of 24 FILED: NEW YORK COUNTY CLERK 06/28/2023 12:56 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/28/2023 their needs themselves as opposed to waiting for assistance from staff. For instance, residents might try to stand up or get out of bed by themselves, and then try to walk to address their needs that are not met by the staff. These unsafe movements often lead residents to fall, putting them at risk for serious injuries that can be life threatening. The lack of sufficient staff to ensure that call bells are timely answered, and resident issues are addressed can result in falls due to unsafe attempts at independence and umealized worsening in health conditions. 17. Dangers from Lack of Infection Control Protocols due to Insufficient Staffing - Infection prevention and control is a critical aspect of basic nursing home care. Nursing homes are expected to take all reasonable steps to avoid the transmission of disease, and this was especially critical during the COVID-19 pandemic. However, inadequately staffed nursing homes cannot ensure that proper infection control procedures are implemented or followed. For example, nursing homes must have sufficient staff to be able to properly sanitize and store all equipment and to ensure that staff members have sufficient time to wash their hands in between contact with residents, so as to prevent the spread of infection. Moreover, during the pandemic, nursing homes were required, where practicable, to maintain separate staff teams: one group to care for COVID- 19 positive residents and a second group to care for COVID-19 negative residents. Failure to maintain sufficient staffing makes this cohorting difficult, if not impossible, and increases the risk of diseases transmission. Indeed, when staff members care for both COVID-19 positive/presumed residents and COVID-19 negative residents (often because there is not enough staff to avoid this arrangement), they might spread the virus to uninfected residents. Similarly, when staff moves between COVID-19 positive and COVID-19 negative residents ' rooms without changing Personal Protective Equipment ("PPE"), they risk spreading COVID-19. When a facility is short staffed, it is common for staff members to feel rushed and therefore take shortcuts, such as failing to change 8 8 of 24 FILED: NEW YORK COUNTY CLERK 06/28/2023 12:56 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/28/2023 PPE and wash their hands when moving from one resident to the next, irrespective of his or her infection status. 18. Further, during the COVID-19 pandemic, nursing homes needed sufficient staff members to properly screen employees upon arrival to detect signs and symptoms of COVID-19. Pre-screening of all staff was required to be done during the pandemic as a measure to ensure that staff infected with CO VID-19 would not transmit the illness to residents and staff. The interaction of symptomatic staff members with residents and/or other staff members heightened the risk of transmission of CO VID-19. 19. Adequate staffing at a nursing home is similarly critical to the monitoring and redirection of residents with brain injuries or impaired cognitive conditions. Nursing homes are required to supervise residents, especially those with a limited ability to follow precautions, for their safety and the safety of others. Increased monitoring is essential in this population of residents due to their inability to identify risks of harm, poor safety awareness, and their lack of ability to consistently follow simple commands and re-direction, particularly during outbreaks of communicable disease or illness, such as the COVID-19 health emergency. Residents who suffer from psychological and/or cognitive conditions, including dementia8 , are more likely to wander into rooms and areas not designated for them if staff do not adequately monitor them. The failure to properly monitor and supervise residents from wandering around a facility while infected with a contagious illness, or to prevent residents from wandering into a room of a resident on isolation with a contagious illness, is a failure of infection control protocols. 8 Per the U.S. Centers for Disease Control and Prevention ("CDC"), dementia is not a specific disease but is, rather, a general term for the impaired ability to remember, think, or make decisions that interferes with doing everyday activities. The most common type of dementia seen in elderly patients is Alzheimer's Disease which is a terminal disease that cannot be reversed or cured. Other types of dementia include Vascular, Lewy body, and Frontotemporal dementia. 9 9 of 24 FILED: NEW YORK COUNTY CLERK 06/28/2023 12:56 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/28/2023 20. Pressure Ulcers Caused by Neglect from Insufficient Staffing- Pressure ulcers, also known as pressure sores, pressure injuries, or decubitus ulcers, are serious medical conditions. A pressure ulcer is a localized injury to the skin and possibly underlying tissue, that is usually over a bony prominence (e.g., hip, knee, heel, foot, head, spine) and is a result of prolonged pressure or friction caused by shearing9 . The skin is the largest organ in the body and it requires an adequate supply of blood to provide oxygen and nutrients to maintain skin health and integrity. Prolonged pressure on the skin, primarily in areas where bones are near the skin's surface, inhibits adequate blood supply to the area, which increases the risk of pressure ulcer development. Pressure ulcers can develop quickly, in as little as two hours, if the pressure is not relieved by use of pressure- relieving devices and changes to the position of the body. Direct care staff are required to observe and report any changes to skin conditions that are observed when performing or assisting with resident personal care. 21. The most common cause of pressure ulcers in the nursing home setting is the failure to change a resident's position for an extended period of time. The standard of care is to assist a resident to change body position at least every two hours. When a resident is lying down in bed in one position for hours at a time, excessive pressure is placed on parts of the resident's body, such as his or her heels, buttocks, back, and hips, compromising blood flow to the area for an extended period. This lack of blood flow causes the skin tissue to deteriorate and increases the risk of a pressure sore. The risk of pressure sores is dramatically reduced if CNAs turn and position residents from side to side and on their back at a minimum of every two hours. Pressure sores too 9 Shearing is when the skin is moved in an opposite direction against a fixed surface, like a rug bum caused by sliding. Shearing is commonly caused when an individual pulls a sheet out from under a resident as opposed to following the proper technique. 10 of 24 FILED: NEW YORK COUNTY CLERK 06/28/2023 12:56 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/28/2023 often occur when a nursing home resident is bedridden or chairbound and the nursing home fails to provide the minimum care necessary to turn and reposition the resident. 22. Pressure ulcers that develop due to the failure to prevent, identify, and treat pressure sores, can be a sign of neglect and can lead to agonizing pain, bone infections called Osteomyelitis, sepsis, and death. 23. The industry standard for defining the four stages of pressure ulcers is as follows: Stage 1: a superficial injury on intact skin with non-blanchable redness of a localized area usually over a bony prominence. Stage 2: partial thickness loss of dermis presenting as a shallow open ulcer with a red or pink wound bed without slough or bruising; it may also present as an intact or open/ruptured blister. Stage 3: Full thickness tissue loss. Subcutaneous fat may be visible, but bone, tendon, or muscle is not exposed. Slough 10 may be present but does not obscure the depth of tissue loss; may include undermining and tunneling. Stage 4: Full thickness tissue loss, with exposed bone, tendon, or muscle. Slough or eschar 11 may be present on some parts of the wound bed. 24. Nursing homes are required to take precautions and provide care to prevent pressure ulcers in the resident population. Facilities should perform comprehensive skin assessments of their residents to determine residents' risk for the development of pressure ulcers. At a minimum, these assessments must be conducted upon admission of a resident and at least quarterly thereafter. Weekly skin inspections are a common and effective intervention tool for early detection of skin abnormalities. As mentioned earlier, daily skin observations during personal care and the reporting of any concerns or changes to the skin are essential to early detection of pressure sores. To prevent 10 Slough is necrotic tissue, generally yellow in color and is often found in Stage 3 and 4 pressure ulcers. Slough is removed from the wound bed by specialized dressings that cause debridement or by mechanical debridement. 11 Eschar is dead or necrotic tissue, usually black or brown and is scab -like. This dead tissue is adherent to the wound bed and requires debridement to be removed from the wound. 11 11 of 24 FILED: NEW YORK COUNTY CLERK 06/28/2023 12:56 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/28/2023 pressure ulcers from developing, nursing homes must frequently change the position of residents ' bodies (such as by rolling the resident from one side to the other, or from one side to his or her back), which is often referred to as turning and positioning. Nursing homes must also appropriately use assistive devices and appropriate support surfaces, such as pressure-reducing specialized chair cushions and mattresses, to alleviate and reduce some of the pressure on the skin. By taking these precautions, if a Stage 1 pressure ulcer does develop, treatment can be administered at the earliest moment to mitigate the likelihood that the injury progresses to a Stage 2 or worse. 25. Residents with risk factors, such as cognitive impairment, bowel and bladder incontinence, refusals or non-compliance with care, impaired blood flow, impaired/decreased mobility and functio nal ability, and co-morbidities are more susceptible to developing pressure ulcers. These risk factors may increase due to an acute illness or infection and may require additional evaluation and CCP interventions. If a facility fails to maintain sufficient direct care staff to prevent and treat pressure ulcers, the facility has neglected the needs of its residents, which often results in harm to the residents. 26. Malnutrition, Hydration, Dehydration, Weight Loss, Aspiration Caused by Insufficient Staffing - Providing food and fluids to a nursing home resident is essential to sustain the resident' s life, health, and well-being. Malnutrition or dehydration 12 can lead to a host of physical issues, including weakness, infections, delirium, cardiac arrhythmia, and overall 12 Dehydration, or the lack of appropriate and sufficient fluids , can lead to a multitude of physical issues and ailments, including weakness, infections, delirium, and cardiac arrhythmia. Dehydration can impair a resident' s ability to heal from injury and cause overall deterioration of their body and decline in health. This can be particularly serious for nursing home residents, who are often already in a compromised state. Severe dehydration can lead to a condition called delirium which is a serious medical condition often triggered by infection; it is a sudden onset of change in cognition that resembles dementia. A resident suffering from severe dehydration can exhibit combative behaviors, refuse care, and be unaware of their surroundings and familiar family members and caregivers. As the resident is provided with hydration and/or other treatment, the delirium can resolve. 12 12 of 24 FILED: NEW YORK COUNTY CLERK 06/28/2023 12:56 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/28/2023 deterioration of the body. These conditions are often the result of neglect or mistreatment, and they can also take an emotional and psychological toll on a resident. 27. Sufficient nursing home staffing plays a pivotal role in ensuring that a resident's proper nutritional needs are met. Many residents require physical assistance and/or supervision while eating. Such assistance may include providing encouragement to continue eating, supervising meals to ensure the resident does not aspirate, or physically feeding of a resident who is disabled and unable to feed themselves. A nursing home that operates with insufficient staffing creates a risk that its residents will not be fed or provided hydration, timely or at all, thereby resulting in malnutrition and weight loss that can, in turn, cause additional physical ailments and overall decline in a resident's health, and hinder a resident's ability to heal from injury. 28. Dangers of Medication Errors Caused by Insufficient Staffing-Nursing homes that operate with insufficient staffing are more likely to commit errors in the administration of medication to their residents, as insufficient staffing adversely impacts nurses ' ability to give adequate care and attention to the task at hand. Medication errors include: administration of unauthorized medication to a resident; administration of the wrong dose, wrong route of administration, wrong dosage form (e.g., liquid when pill was ordered), or wrong time for a medication; administration of medication to a resident outside of physician ordered parameters 13 ; and omission of a physician-ordered medication. Significant medication errors can be dangerous to a resident's health and safety and can even cause death. The primary cause of a medication error is the interruption of the medication nurse or licensed nurse during a medication pass. 13 Some medication orders have parameters set by the physician. These parameters will determine if a medication is to be administered, or the dose of the medication to be administered, based on certain parameters. For example, insulin used to treat diabetics can require a certain number of units to be administered based on the resident blood glucose reading. 13 13 of 24 FILED: NEW YORK COUNTY CLERK 06/28/2023 12:56 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/28/2023 Common interruptions include assisting CNAs with transfers or other resident care, communicating with physicians, families, and others regarding resident issues, and re-directing cognitively impaired residents. Insufficient staff on a nursing unit during a medication pass may cause the nurse to make a mistake during the process of administering medications, which can result in serious injury to a resident. 29. Dangers of Overmedicating Residents Arising from Insufficient Staffing - A resident has the right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience of staff. A chemical restraint is the inappropriate use of medication to restrict movement or suppress thought and/or free will. Psychotropic drugs frequently act as a chemical restraint by causing side effects such as lethargy. Nursing homes that are understaffed might resort to the use of chemical restraints to reduce combative or difficult resident behaviors, thereby reducing the amount of staff attention required to care for the residents. This is especially true for residents suffering from dementia, to whom these drugs might be given to make the residents more manageable, especially when staffing is low. 30. Activities of Daily Living, Lack of Personal Care, and Loss of Dignity from Insufficient Staffing - Nursing home residents need assistance with ADLs and personal hygiene due to physical and cognitive impairments. A nursing home must provide care and services relating to ADLs, which include: (1) "Hygiene - bathing, dressing, grooming and oral care;" (2) "Mobility- transfer and ambulation, including walking;" (3) "Elimination - toileting;" (4) "Dining - eating, including meals and snacks;" and (5) "Communication, including speech, language [and] other functional communication systems." 42 CFR § 483.24(b). 14 14 of 24 FILED: NEW YORK COUNTY CLERK 06/28/2023 12:56 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/28/2023 31. Nursing home residents may suffer from unavoidable declines in their ADLs when a nursing home operator fails to operate a nursing home with sufficient staff to provide the required care and services to residents as necessary. 32. Mobility/ Ambulation - Mobility is critical to the overall health of nursing home residents. Lack of mobility causes residents to suffer from complications such as contractures of joints 14, blood clots, constipation, pneumonia, urinary tract infections, and loss of independence. At the time of admission, a resident is assessed by the Physical Therapy and Occupational Therapy staff to determine his/her baseline functional status; this evaluation is then repeated at least quarterly and more often, as needed. Based on the results of the evaluation, a plan is established to maintain or improve the resident's functional status and to prevent avoidable declines. Interventions, such as ambulation programs, range of motion exercises, and the use of devices, such as splints to maintain proper positioning of a limb, can all be instituted, based on a resident's need, to prevent decline. Mobility / ambulation interventions require sufficient numbers of staff so that the residents can complete all interventions as instructed and to ensure compliance with the CCP. Inadequate staffing prevents staff from performing such tasks, leaving residents to suffer complications related to a lack of mobility that are often painful and self-limiting. 33. Some residents require staff to use a mechanical lifting device, often referred to as a "Hoyer Lift' to assist them into and out of bed. A Hoyer lift is a mechanical lifting device that is used in nursing homes to move residents who are unable to bear weight on their legs, or are unable to participate in the transfer process, and who are totally dependent on staff members to transfer them from one surface to another. Hoyer lifts are operated by manual hydraulic lift, or are battery or electric powered. The transfer of a patient by means of a Hoyer lift requires two 14 Contractures are the shortening of muscles tendons and tissues causing the joints to be stiff and tight. This condition is caused by inactivity or scarring from an injury. 15 15 of 24 FILED: NEW YORK COUNTY CLERK 06/28/2023 12:56 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/28/2023 nursing home staff members for a number of reasons: (1) one person must operate the lift while the other staff member needs to physically guide the resident to his or her destination; (2) two individuals are needed to ensure proper attachment of the sling to the lift for safety purposes; and (3) to ensure that at least one staff member is available at all times to provide reassurance to the resident during the procedure. 34. Moreover, when facilities are understaffed, individual staff members may operate Hoyer lifts by themselves without assistance, thereby increasing the risk of falls and serious physical injuries, including resident death. 35. Range of Motion - Range of Motion ("ROM") means the full movement potential of a person's joint. If a resident has limited ROM or contractures, Range of Motion exercises will be prescribed. ROM exercises are performed on joints to increase the range of the joint. As muscles atrophy (a wasting or loss of muscle tissue), they shorten, causing the joint to lose full range of motion. ROM exercises of the joints help to stretch the muscle and improve mobility. Passive ROM exercises are performed by the caregivers with no participation from the resident while Active ROM exercises are those for which no caregiver assistance is needed. CNAs are trained to provide ROM exercises, as a part of a resident's daily care, to prevent further decline to his or her joint. In performing Passive ROM exercises, CNAs are instructed as to which joints on the resident require ROM exercises; the number of repetitions per session, how many sessions per day, and actions to avoid so that the joint is not moved beyond the point of discomfort or pain. When nursing homes operate with insufficient staffing, CNAs may fail to perform necessary ROM exercises which results in further contracture(s) to the joint(s) causing pain and further diminished mobility. When facilities fail to adequately staff their units based on the needs and acuity of the 16 16 of 24 FILED: NEW YORK COUNTY CLERK 06/28/2023 12:56 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/28/2023 residents, staff members are more likely to rush through tasks and less likely to provide the necessary range of motion exercises to the residents. 36. Toileting- Bowel and bladder incontinence are conditions affecting many nursing home residents. "Toileting" refers to the assistance provided to residents with all aspects of toileting, depending on their individual needs. "Assistance with toileting" can mean a variety of things, including helping a resident on and off the toilet, helping a resident cleanse his or her body as part of toileting, adjusting his or her clothing after the toileting is completed, or use of a bedpan or urinal by a resident. Residents who do not use the toilet will require management of specific devices, for example, an in-dwelling urinary catheter 15 or other type of catheter for continuous drainage of urine, or a colostomy 16 or other type of stoma for continuous drainage of bowel, and/or incontinence briefs for residents who have no control of bowel and bladder. The resident's CCP dictates the number of staff required to provide the assistance. The standard of care for assisting a resident with toileting and incontinence care is to do so at least every two hours, if not more frequently , as needed. That means that in a typical 8-hour shift, all residents on a nursing care unit must receive the required toileting assistance a minimum of 4 times. 37. To care for a resident on a Bladder and/or Bowel toileting program 17, the staff must follow specific interventions in the resident' s CCP . Residents on this program may require more frequent toileting than every two hours, which places an added burden on direct care staff. 38. Certain nursing home residents have colostomy bags, which need to be timely emptied. Failure to timely empty a colostomy bag can cause it to burst open soiling the resident 15 An Indwelling Urinary Catheter is inserted in the bladder to allow for the continuous drainage of urine. 16 A Colostomy is a surgical opening in the gastrointestinal tract that allows for the continuous elimination of bowel waste. 17 A Bladder and/or Bowel plan is an individualized resident-centered training program that may reduce or eliminate urinary or bowel incontinence. 17 17 of 24 FILED: NEW YORK COUNTY CLERK 06/28/2023 12:56 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/28/2023 and cause embarrassment to the resident. A colostomy bag is a collection bag for feces that fits over a stoma, which is an opening created by a colostomy. A colostomy is a surgical procedure that involves bringing the colon through an opening of the abdominal wall, turning it under like a cuff, and stitching it, to allow fecal matter to be eliminated from the body. 39. A nursing home's failure to promptly assist a resident with toileting and elimination needs can contribute to severe health problems and injuries, including pain and distension, UTis, kidney damage, chronic loss of bladder and bowel control, breakdown in skin integrity, infections to existing pressure sores, and falls to those residents who require assistance but sought to address their toileting needs independently. Avoiding instances of bowel and bladder incontinence is essential to maintaining an individual's dignity and nursing homes must employ enough staff to meet the toileting needs of all of its residents. 40. When nursing homes operate with insufficient staffing, the nursing homes' direct care staff cannot timely respond to resident call bells, forcing residents to suffer excessive delays in receiving assistance with toileting. 41. Dining- 42 CFR §483.60 (Food and Nutrition Services) states that a facility must provide each resident with a nourishing, palatable, well-balanced diet that meets his or her daily nutritional and special dietary needs. At the time of admission, and at least quarterly thereafter, the nursing home must conduct an assessment of each resident's dietary needs. Failure to maintain a resident's nutritional needs can lead to serious health conditions such as malnutrition, pressure sores, heart arrythmias, organ failure, and weight loss. 42. Each resident must be provided with meals in compliance with his or her physician- prescribed diet. The prescribed diet will set forth any dietary restrictions based on chronic conditions, as well as the appropriate texture of food and consistency of liquids. 18 18 of 24 FILED: NEW YORK COUNTY CLERK 06/28/2023 12:56 PM