National Legislation

Medicare and Medicaid Regulations Assist in Preventing Nursing Home Abuse and Neglect

February 7, 2014 | Lebowitz & Mzhen

Nursing homes often rely on participation in Medicare and Medicaid. Without the assistance of these programs, fewer patients would be able to afford a stay in these facilities, and more of them would go out of business. Participation in Medicare and Medicaid, however, is contingent upon compliance with regulations and standards of care enforced by the federal government. As a case decided by the Fourth Circuit Court of Appeals several years ago shows, these regulations can help prevent abuse and neglect in nursing homes, or provide victims with evidence if abuse or neglect does occur.

A North Carolina nursing home appealed several monetary fines imposed by the Centers for Medicare and Medicaid Services (CMS), arguing in part that the evidence did not support CMS’s findings. Universal Healthcare v. U.S. Dept. of Health & Human Services, No. 09-1093, slip op. (4th Cir., Jan. 29, 2010). CMS imposed fines against the nursing home on two occasions, in November and December 2005, for violations relating to patient care. The Fourth Circuit Court of Appeals affirmed the lower courts’ rulings.

The first set of fines involved a patient identified by the court as G.J., who was to receive a dose of a pain medication, Cafergot, every morning. The CMS investigators found that the duty nurse was unable to give G.J. that medication one morning, because the on-site pharmacy had run out. Instead, they substituted the pain medication Darvocet. The pharmacy did not obtain a new supply of Cafergot until later in the day. CMS found the facility in violation of two regulations: failing to provide adequate pharmaceutical services, 42 C.F.R. § 483.60(a); and failing to provide a “quality of care” matching a patient’s comprehensive assessment, 42 C.F.R. § 483.25.

After Accidents, Auto Safety Advocates Push for Federal Regulation of Car Rental Industry

March 28, 2012 | Lebowitz & Mzhen

A tragic 2004 car crash has led to calls for federal legislation and regulation of the rental car industry. Two sisters, Raechel and Jacqueline Houck, 24 and 20 years of age respectively, rented a PT Cruiser from an Enterprise Rent-A-Car in Capitola, California. The car was under recall at the time because of a problem with its power-steering, but the rental company had not performed any repairs. Since the issuance of the recall, it had reportedly rented the car to three other people before the Houcks. The power-steering fluid began to leak while they were driving, and it caught fire. This caused them to lose control of the car. Their car collided with a semi trailer, killing both of them. Enterprise admitted to liability, and a jury awarded $15 million in damages to the Houcks’ mother, Cally Houck, two years ago.

In an effort to prevent accidents like this one, which resulted from a failure to perform necessary repairs on a recalled vehicle, several United States senators introduced the Raechel and Jacqueline Houck Safe Rental Car Act of 2011. This law would have granted regulatory authority to two federal agencies to ensure that rental car companies performed repairs on any vehicles in their fleets under recall before renting them to consumers. The Federal Trade Commission (FTC) would be able to regulate the industry using existing deceptive trade practice laws, and the National Highway Traffic Safety Administration (NHTSA) would be able to track and monitor safety features in vehicles rented to the public.

Under current law, the NHTSA can require auto manufacturers to repair vehicles under recall before distributing them to dealers. Dealers that sell new vehicles must also perform recall repairs before selling to consumers. None of these laws currently cover rental car companies, although they are reportedly the continent’s largest purchaser of new cars and supplier of used cars.

Out of the 1.6 million vehicles owned by American rental car companies, almost 184,000 were subject to a recall in 2011, according to USA TODAY. Toyota issued a recall in 2010 that affected around twenty-two percent of the total number of rental cars in the country. The main trade group representing rental companies told USA TODAY that the industry has a better track record for recall repairs than most vehicle owners. Still, the industry operates with almost no oversight, which concerns some safety advocates, and even some in the industry itself.

Senate Judiciary Panel Reviews Compensation Bill That Could Remove Asbestos-Related Personal Injury Cases From Courts

June 14, 2006 | Lebowitz & Mzhen

The US Senate Judiciary Committee is discussing changes to the Fairness in Asbestos Injury Resolution Act. The compensation bill offers a plan that would create a $140 billion trust fund that could end up removing asbestos-related personal injury cases from the courts. The fund would be financed from the revenues of companies facing asbestos litigation and their insurers, but some opponents of the bill worry that the fund might not be able to cover all liability claims and that taxpayers could end up paying for them.

Asbestos injuries result when a person who is exposed to dangerous levels of asbestos inhales or ingests asbestos fibers. Asbestos injuries can sometimes arise years after the incidence of exposure.

Job industries where the risk to asbestos is particularly high: