HCR ManorCare, one of the largest U.S. nursing home operators, has a deadline tomorrow in a dispute over unpaid rent, a growing problem in an industry where eviction would put thousands of elderly out on the street.  In a lawsuit filed in August, HCR ManorCare’s landlord, Quality Care Properties Inc, said the chain owes more than $300 million in rent at its 292 skilled nursing and assisted living locations.  Many nursing home chains spun off their properties to real estate companies over the last decade to siphon money and increase profits.  ManorCare is the largest senior housing chain in financial distress but other over leveraged chains are losing profits because of mismanagement, declining reimbursements, higher management costs, and increased federal scrutiny over improper billing.

ManorCare must respond tomorrow.  Generally, a landlord can evict a tenant who fails to pay rent.

“However, because the leased properties care for approximately 30,000 patients – many of whom are elderly, vulnerable and require specialized care – abrupt eviction could cause substantial harm,” Quality Care said in its lawsuit, filed in California state court on August 17.

With more skilled nursing facilities defaulting on leases, property owners are increasingly looking to receiverships as an alternative to evictions or bankruptcy, lawyers and advisers told Reuters.

A receiver can ensure continuity of care for patients and residents while preparing the facility for a transition to a new owner or operator. The process is cheaper and more stable than bankruptcy proceedings.

 

The Legal Intelligencer reported on the lengthy litigation to get one resident justice. The Pennsylvania Superior Court in Scampone v. Highland Park Care Center has ordered a new trial on compensatory damages against a nursing home management services provider, as well as on punitive damages against that company and its nursing home client over neglect causing a resident’s death.

The Aug. 8 ruling in Scampone came nearly five years after a landmark state Supreme Court ruling in the case that nursing homes could be found directly liable under a theory of corporate negligence.

 

First, whether Grane exercised reasonable care in managing the facility was a question for the jury to determine,” Judge Mary Jane Bowes wrote in the Aug. 8 opinion. “There was sufficient proof that Grane did not manage the facility in a reasonable manner as the plaintiff adduced proof that the nurse consultants were told that there was insufficient staff to properly care for the nursing home residents. Yet, according to the plaintiff’s evidence, nothing about the staffing was done by Grane, which was charged with oversight and management of patient care.”

Bowes added that whether Grane contracted to care for and treat Madeline Scampone was “irrelevant.”  “The proper inquiry is whether Grane should have recognized that its contractual undertaking to manage and oversee the care and treatment of Madeline was necessary for her protection,” Bowes said. “It should have so recognized this fact.”

Understaffing at the facility hindered the delivery of food, water, medicine and ordered medical testing to Scampone.  “A jury could find that lack of sufficient staff was a contributing factor in the pervasive improper care and Madeline’s death,” Bowes said. “A jury question was presented as to causation by Mr. Scampone’s proof, and nonsuit was improperly granted by the trial court on this ground as well.”

 

The Santa Fe New Mexican reported the history of neglect at Casa Real.  Inspections and investigations paint a troubling picture of life at the nursing home: medication errors, expired food and drugs on shelves, unreported injuries and assault, poor care of wounds, inadequate safeguards against spread of antibiotic-resistant infection, nurse understaffing and more.

Problems also have occurred at the Santa Fe Care Center, a sister facility of Casa Real, according to inspection reports.  A resident at the Santa Fe Care Center was threatened with eviction last year because his family complained about his care, an inspection found. The inspector also reported seeing staff ignore a woman’s repeated pleas for help as she sat in a wheelchair near a nursing station.

The troubles at Casa Real and the Santa Fe Care Center aren’t new. State inspectors in at least the past 15 years have cited serious deficiencies in resident care. The office of the state long-term care ombudsman, which serves as an advocate for nursing home residents, reported 428 complaints against Casa Real and 105 complaints against the Santa Fe Care Center in the past two years. The top complaints dealt with discharge, administration of medications, staff attitudes and failure to deliver ordered care.

State and federal regulators have allowed the homes to continue to operate and accept Medicare and Medicaid payments, although the facilities have faced substantial fines.  Ownership of the homes, now operated by Preferred Care Partners Management Group of Plano, Texas, has changed several times.

The for-profit facilities are the only skilled-nursing homes in Santa Fe that take Medicare and Medicaid payments, meaning area residents must accept conditions at the homes if they cannot afford private-pay nursing and want to stay in Santa Fe.

Conditions at both nursing homes are the subject of a lawsuit filed against their operators by the state Attorney General’s Office, which alleges the homes received hundreds of millions of dollars from Medicare, Medicaid and private payers without delivering even basic care.

The lawsuit alleges that Preferred Care defrauded Medicaid by having insufficient staff to meet the needs of residents at its Santa Fe nursing homes, as well as at facilities in Gallup, Las Cruces, Bloomfield, Española and Lordsburg. Also named as a defendant is Cathedral Rock, former owner of the homes.

The department conducted its last standard health inspection of the nursing home in April and reported 37 deficiencies, more than three times the average number of health deficiencies found in all New Mexico nursing homes. Among the reported problems:

• Medications were not administered at proper doses or on time. One resident was supposed to be given a medication daily but didn’t receive it on 13 days in March. Also, residents didn’t receive medications because the home didn’t have them available. Expired medications were found in drug storage.

• A female resident who was supposed to receive a shower three times a week hadn’t had a shower for a week. “I got a shower cause I was begging for it,” the resident told an inspector.

• Bathroom pull cords for call lights were unreachable if a resident fell.

• Residents were not receiving the number of physical therapy sessions ordered by physicians. “This deficient practice … is likely to increase falls resulting in bruises, lacerations, broken bones, head trauma and death,” the inspector’s report said.

• Food was not served at the proper temperature, and food in refrigerators was older than its expiration date.

The West Virginia Record reported the lawsuit filed against national for-profit chain SavaSeniorCare.  The case involves a resident of Huntington Health and Rehabilitation Center which is owned by SavaSeniorCare and operated by SavaSeniorCare Administrative Services LLC; and SavaSeniorCare Consulting LLC.

Maria Webber, as personal representative of the estate of Katherine Foley, filed a complaint against Seventeenth Street Associates LLC, doing business as Huntington Health and Rehabilitation Center; SavaSeniorCare Administrative Services LLC; and SavaSeniorCare Consulting LLC alleging negligence, wrongful death and other counts.

 According to the complaint, Foley was a resident from Sept. 3 to Sept. 24, 2016. The plaintiff alleges that during her short stay there, Foley suffered from avoidable pressure ulcers, infections and dehydration causing her wrongful death on on May 7, 2017.

The plaintiff contends that Defendants neglected Foley including failing to monitor Foley’s condition and failing to timely provide the services to prevent her ailments.

 

The Madison-St. Clair Record reported the lawsuit filed against Integrity Healthcare of Alton; General Medicine, PC or in the alternative General Medicine of Illinois Physicians, PC; Senior  Healthcare Management, LLC; and Steve Blisco, alleging the defendants violated the Nursing Home Refort Act of 1987.

Jerome Bates, as administrator of the estate of Judith Bates, filed a complaint alleging neglect and failure to properly care for the decedent. On June 24, 2015, Judith Bates was a resident at the defendant’s nursing home and developed a urinary tract infection.  Judith Bates was also dehydrated, suffered from protein calorie malnutrition, had lost weight, suffered from urinary incontinence, could no longer eat and complained of abdominal pain. However, the plaintiff alleges no doctor was notified of her condition. The next day, Judith Bates died.

The plaintiff alleges the defendants failed to formulate and update a plan of care regarding hydration, weight loss, nutrition and diet, urinary incontinence and urinary tract infections and failed to provide appropriate hygiene and preventative measures to prevent recurrent urinary tract infections.

SavaSeniorCare is once again accused of defrauding the government by accepting kickbacks, the original Complaint filed in 2015 was unsealed, revealing that the whistleblower who filed the suit believed the core motivation behind the scheme was revenge on a competitor.  The rest of the filings in the case remain sealed except for the original complaint, as the decline of the governments to intervene triggers the unsealing.

The whistleblower who originally filed the case two years ago, August Bogina III, said in the complaint that he was personal friends with one of the men integral to the scheme, Michael Tutera, who died in 2010. According to Bogina, Tutera was one of two men who ran an insurance brokerage business in Kansas City, and was caught up in the alleged scheme when he and his business partner, Brian Davidson, became acquainted with Jimmy Abrams a principle owner of Illinois-based medical supply company Medline.

Davidson became the point man for a deal in which the three men teamed up in order to get nursing home chain SavaSeniorCare business with the skilled nursing facilities. To kick off the partnership, Davidson allegedly met with Sava owner Murray Forman in New York City in 2005, and the two exchanged a briefcase full of $100 bills, which Bogina said could have been $50,000. The money, which was provided by Medline and given to Davidson to give to Forman, was just the second part of the deal.

In another twist, Forman allegedly told Davidson that he wanted to “exact revenge” on rival skilled nursing facility chain Triad, which Forman said had burned him in a real estate deal a few years earlier.

“To exact such revenge on Triad, Davidson and Tutera met Abrams and proposed a business arrangement whereby Abrams would provide the money necessary to purchase several mortgage notes on real estate where Triad nursing homes were located,” the unsealed complaint said.

Medline’s Abrams allegedly provided $2 million to fund a limited liability company in Texas, Texas LLC, run by a man named John Connolly in order for the company to purchase the mortgage notes on real estate where Triad nursing homes were located. Then shortly after the purchase of the three mortgage notes, Connolly, acting through the Texas LLC, declared Triad in default on the mortgage notes, according to the unsealed complaint.

“With Triad declared in default on mortgages on three properties, Forman was ecstatic with Davidson, Tutera, and Abrams,” the complaint said. “Their roles in the Triad ‘take down’ induced Forman to pursue, on behalf of Sava-Mariner, an agreement for Sava-Mariner to purchase its [durable medical equipment] for its nursing homes from Medline, rather than from its DME supplier at that time, Gulf South Medical Supply.

In order to induce Sava-Mariner to purchase medical supplies from Medline instead of Gulf South, Medline paid illegal remuneration in the form of bribes and kickbacks to Forman, Tutera and Davidson, according to the complaint.

It’s not clear why the governments did not intervene in the case, triggering the unsealing of the complaint. But this complaint is not alone in cases against SavaSeniorCare. A trio of 2015 cases that was consolidated in Tennessee federal court alleges that SavaSeniorCare billed Medicare for unnecessary rehabilitation therapy services in violation of the False Claims Act.

According to the complaint, SavaSeniorCare LLC would pressure its facilities to meet unrealistic financial goals, which would lead to employees’ providing “medically unreasonable, unnecessary and unskilled services” that it would bill to Medicare. Between October 2008 and September 2012, Medicare paid Sava $1.4 billion for inpatient services, the suit claims.

The case is U.S., ex rel, et al. v. Savaseniorcare Administrative Services LLC, et al., case number 1:15-cv-04763 in the U.S. District Court for the Northern District of Illinois.

The Times-Standard reported that a lawsuit was filed against Brius Healthcare Services for purposeful understaffing and underfunding that caused the neglect and injury to Marie White while she resided at Eureka Rehabilitation and Wellness Center.

The complaint filed May 4 claims Eureka Rehabilitation and Wellness Center failed to prevent several falls by Marie White, which it alleges has resulted in White no longer being able to walk or use one of her arms. The lawsuit accuses Brius of fraud, abuse, negligent hiring and supervision, and violation of state laws. The complaint names Brius, Brius CEO Shlomo Rechnitz, the Eureka Rehabilitation and Wellness Services, the nursing home’s administrative company Rockport Administrative Services and Boardwalk Financial Services as defendants.

“Marie White suffered multiple preventable falls including one which caused a fracture of her left arm, malnourishment leading to a weight loss of twenty-four pounds in under four months, all of which was fraudulently concealed by the defendants from Marie White’s family and legal representative which directly contributed to the occurrence and worsening of Marie White’s injuries,” the 45-page complaint states.

“… At all relevant times, the facility and the management defendants and each of their tortious acts and omissions, as alleged herein, were done in concert with one another in furtherance of their common design and agreement to accomplish a particular result, namely maximizing profits from the operation of the facility by underfunding and understaffing the facility,” the complaint continues.

The lawsuit comes after three separate wrongful death lawsuits were filed against Brius since November 2016. Those lawsuits also allege lack of staffing and neglect led to the deaths of three patients in 2016 at two of the five Brius nursing homes in Humboldt County: Eureka Rehabilitation and Wellness Center and Seaview Rehabilitation and Wellness Center.

 

 

The Buffalo News reported the disturbing tale of Thomas Moore who spent more than 20 years in prison for sexually abusing hospitalized women who were elderly, disabled or incapacitated.  But when time came to release him last year, he was accepted at Waterfront Rehabilitation and Healthcare Center in Buffalo – where he lived surrounded by elderly, disabled and incapacitated women. State law required Waterfront to be notified of Moore’s status as a level 3 “sexually violent and predicate sex offender” when he was released to its care, according to the state Department of Corrections and Community Services.

Barely a month after he moved into Waterfront, Moore was arrested and charged with sexually abusing a fellow resident in her bed.  Authorities accused Moore of entering the room of another Waterfront resident at about midnight on Jan. 3, pulling off her blanket and molesting her. Police arrested Moore nine days later, charging him with sexual abuse of a person incapable of giving consent and with endangering the welfare of a physically disabled person.

“It was like throwing the fox in the hen house,” said Dr. Charles P. Ewing of the University at Buffalo, an attorney and forensic psychologist who has studied sex offenders and the law. Ewing said that any facility responsible for the safety of others, whether they are young, elderly or infirm, has a higher level of obligation to stay informed if it agrees to hire or house someone on the sex offender registry.

The police report’s description of the January assault are similar to Moore’s first two convictions for sex crimes. In both cases, he assaulted women who were disabled or incapacitated.

Moore’s first sex offense conviction came in July 1996. Moore targeted a 79-year-old woman – a patient in a Manhattan hospital. Convicted of the sexual abuse of a person who was physically helpless, he spent four years in prison and was released in 2000.

By August 2001, Moore assaulted two female patients at Beth Israel Medical Center. First he pulled the sheet off a 58-year-old woman who had come out of surgery. Then a nurse spotted him on a bed with a semi-conscious 93-year-old woman.

Federal regulations require nursing homes to make every effort to protect their residents from abuse. Those rules “not only specify that these facilities may only admit residents they can appropriately care for, but they must also identify residents whose personal histories put them at risk for abusing other residents,” according to the state Department of Health.

“Staff must work diligently to prevent such occurrences by monitoring behavior of these residents and regularly reviewing their internal strategies for the prevention of abuse,” according to its statement to The News.

A 2015 study led by Cornell researchers found that more than 20 percent of nursing home residents are victims of some type of resident-on-resident abuse in the course of any given month, with the abuse ranging from cursing and threats, theft of personal items, inappropriate touching or hitting, all the way up to homicide.

 

A Florida federal jury in U.S. ex rel. Ruckh v. Genoa Healthcare, LLC, found the operators of 53 skilled nursing facilities liable for more than $115 million in damages stemming from false claims they submitted to Medicare and Medicaid after pretending patients needed and received more care than they did.

The jury ruled on False Claims Act allegations brought by whistleblower Angela Ruckh, who worked at two of the facilities as a nurse, and found that the four defendants — CMC II LLC, Salus Rehabilitation LLC, 207 Marshall Drive Operations LLC and 803 Oak Street Operations, LLC were liable for false claims.

Ruckh said she saw years of corporate scheming meant to “bill Medicare and Medicaid” by upcoding therapies.  Angela Ruckh, formerly of La Vie Management, proved that the providers listed in the case presented “false or fraudulent” claims for reimbursement.

The Government has many tools to help it prosecute False Claims Act cases.  One such tool is extrapolation—the act of using a sample of resident files to determine an error rate and applying that error rate to a greater universe of resident files.  After some initial setbacks including having their case dismissed for lack of necessary detail, the plaintiff complained that to show fraud with detail in every instance was not feasible.  The plaintiff instead asked to use the Government’s tool of extrapolation (to be able to have an expert pick out some files, determine an error rate and apply that error rate to a larger universe.)  The Federal Government filed a brief in support of permitting private parties this power.

The Court sided with the whistleblower, allowing her to use extrapolation and statistical sampling to estimate the volume of overpayments allegedly received by the defendants.  In issuing his decision, District Judge Steven Merryday relied on other cases that accepted statistical sampling methods as reliable and acceptable evidence in determining facts related to False Claims Act claims.  Judge Merryday echoed a recent District Court case in Tennessee that considered “the large universe of allegedly false claims” in finding that “it would be impracticable for the Court to review each claim individually” and to do so “would consume an unacceptable portion of the Court’s limited resources.”

Though this case is just the latest in a string of cases upholding the use of statistics and extrapolation to establish liability under the False Claims Act, this decision is unique in that it allows an individual qui tam whistleblower to utilize this powerful tool to demonstrate falsity even where the Government has declined to intervene in the case.

First Cost News reported the tragic and preventable neglect of Annie Hurley at San Jose Health and Rehabilitation Center.  Annie was transferred to the hospital with a large infected Stage 4 pressure ulcer and a fever of 104.  Annie’s daughter, Paris, questions the level of care her grandmother was given at the nursing home.

“The way the sore looks is awful,” says Paris Hurley. “It’s almost like her body is rotten.”  She adds there’s no way the staff there could’ve missed the huge sore – not just based on its size, but also the visceral smell. It was so ugly, Paris explains, the Emergency Room doctor was stunned.

“He said this is the worst case he’s ever seen in his life,” Paris says.

“And she had no response,” Paris says.

Family members maintain she deserves the best of care and now they don’t believe she received it.  “We trust the caretakers, the nurses, to take care of our family members every day and they don’t,” Paris says.