The jury’s finding came after five weeks of testimony in the complicated case involving Brighton Rehabilitation and Wellness Center and Mt. Lebanon Rehabilitation and Wellness Center. The US Attorney’s Office for the Western District of Pennsylvania also prosecuted five company and facility leaders for their roles in a scheme that led to overbilling; the jury found all five not guilty.

Brighton Rehab itself was found guilty of healthcare fraud and five counts of falsification of records in a federal investigation, while Mt. Lebanon was found guilty of one count of falsification of records related to healthcare matters and three counts of falsification of records in a federal investigation. The nursing home defendants are scheduled to be sentenced in May before US District Judge Robert J. Colville.

Neither prosecutors nor defense attorneys offered a solid explanation as to why the jury reserved its convictions for the corporate defendants. But US Attorney Eric Olshan told McKnight’s Long-Term Care News in an email Monday night that his office would pursue similar cases in the future, if warranted.

“Our legal system entrusts the jury with making determinations of guilt, and as in all cases, we respect the jury’s verdict,” he said. “Today, the jury held the two corporate defendants criminally liable for a total of 10 counts of making false statements and obstructing CMS’s critically important work of ensuring that nursing facilities comply with the law.  This office and our law enforcement partners will continue to seek accountability for any individual or business that pursues profit through deceit and does so at the expense of vulnerable members of our community.”

Several counts in the indictment that precipitated this fall’s trial carried up to $250,000 in fines, or jail times in the case of individuals. In a press release issued by the US Attorney’s Office Monday evening, prosecutors said the companies faced a maximum of five years probation, $500,000 in fines, or both, on the counts for which they were convicted.

A message from McKnight’s Long-Term Care News left with a nursing leader at Brighton Rehabilitation for Comprehensive Healthcare Management Services was not returned Monday.

Prosecutors had alleged two different schemes to enrich the nursing homes’ operations. In the first, leaders were accused of falsifying payroll documents to make it appear the nursing homes were meeting required staffing levels, including having non-working direct care staff clock in for shifts they never intended to work. In the second, administrators were accused of changing assessments to make it appear patients were clinically depressed or needed more therapy as a means of delaying discharge and driving Medicare or Medicaid reimbursements.

But in court, attorneys for the individual defendants framed the case as one of sloppy record keeping and government malfeasance, rather than intentional fraud, TribLive reported.

They also hit at the credibility of 20 former nursing home employees as having an ax to grind. Some were fired, others quit and some were offered immunity in exchange for their testimony, the Pittsburgh Tribune-Review noted in its coverage of last week’s closing arguments.

Kirk Ogrosky represented Sam Halper, Brighton’s CEO and 12% owner and an officer at Mt. Lebanon. Orgosky argued there was no evidence Halper was involved in ordering or completing incorrect staffing records but instead told the jury that a handful of staff members came up with a scheme to cheat the buildings’ corporate owners.

“Throughout this case, all defendants cooperated with the US Department of Justice in every way possible. Yet, DOJ pursued individuals without regard for the truth,” Halper said in a statement shared with TribLive. “Thankfully, the jurors were able to hear the evidence and find that the facts did not support DOJ’s claims.”

Ogrosky did not return a message from McKnight’s seeking additional comment Monday.

I’ve written on topics ranging far and wide across the long-term care spectrum. But I’m pretty sure this will be my first foray into the world of fake butt accusations.

A suit filed earlier this month in New York alleges a nurse aide named Milouse Laguerre was subjected to workplace-related sexual harassment.

The catalyst? Other CNAs who insisted her gluteus maximus exceeded the maximus limit. There was simply no way its dimensions were within the boundaries of what her Mama could have given her, her co-workers allegedly claimed.

Not only did they judge that her backside’s dimensions were beyond what nature intended, they demanded for months that she provide the name of the physician behind such robust proportions. When Laguerre rejected both the allegations and the request, they allegedly proceeded to make her life a living hell.

So, is this really a story of buttocks envy gone bad? It could be that, too. But after reading the court documents, I’m not sure we’ve gotten to the bottom of this story.

You see, it appears that some of her colleagues were unhappy with Laguerre, who happens to be Haitian, being offered full-time employment in the facility three years ago. They allegedly claimed Haitians are “ugly.” They also insisted that Haitians, in the vernacular of Sir Mix-A-Lot, don’t have “back.”

While the facility’s CNAs were supposed to work as a team, her requests for assistance were largely ignored.

Moreover, when she repeatedly asked management for relief, her requests went nowhere. In fact, she was suspended, then fired, according to her attorney.

For other providers, there are two lessons to glean from this unusual case.  

The first is that turning a blind eye to harmful statements and toxic interactions among employees is a risky strategy that may lead to legal consequences. 

The second is that when employee conflicts persist, human resources must play a proactive role in addressing and resolving disputes, preventing them from festering into more significant issues.

This is an alleged situation that never should have been tolerated by those in charge, much less allowed to worsen.

And now the lawyers are involved. By the time this matter is resolved,  there’s a very good chance the facility will find itself paying out the, well, you know.

John O’Connor is editorial director for McKnight’s. Read more of his columns here.

The Sept. 29 lawsuit from the US Department of Justice cites several complaints it has received alleging discrimination against disabled nursing home residents.

“Each year, many Coloradans with physical disabilities move into nursing facilities after becoming injured, sick, or homeless, or when friends, relatives, or paid caregivers can no longer take care of them,” the lawsuit states. “For some, a brief rehabilitative stay turns into a long-term nursing facility placement when the State does not provide the services they need to move back to their homes. As a result, some people who want to return home have stayed in nursing facilities for many years.”

The state argued that its transition plans for returning disabled residents to their homes and communities are adequate and that the DOJ’s accusations to the contrary are unsupported.

“Colorado has a comprehensive and effective working plan for adequately serving Colorado Medicaid members in the community,” the AG’s office claimed in its 31-page rebuttal.

The rebuttal also argued that the DOJ doesn’t outline any way to fix the alleged problems in the state and fails to recognize that major overhauls of the current system could add more complications and uncertainty to Medicaid programs that other residents rely on.  

The lawsuit follows seven years of legal fights between federal and state governments, including a years-long DOJ investigation that concluded Colorado was violating the ADA in March 2022. 

Colorado initially agreed to work to bolster its programs to transition nursing home residents back to their communities, but repeated meetings with the DOJ failed to produce a settlement. 

The recent lawsuit followed this breakdown in negotiations. The DOJ is now demanding that the state provide more at-home care to disabled Coloradans. Colorado, meanwhile, continues to maintain that it already has programs in place to provide the legally required services.

A wave of setbacks swamped the attempted sale of the DeKalb County (IL) Rehab and Nursing Center. County leaders joined citizens in questioning and then protesting the private buyers who nearly took ownership.

Sales of public nursing homes to private owners are often controversial due to suspicions of how the acquisitions will affect quality of care. The financial troubles at DeKalb County Rehab and Nursing Center, however, made a sale seem like the best option to keep the nursing home operating. 

Mismanagement and declining resident numbers had plagued DCRNC and led to $7 million in debt that the facility’s sale was supposed to offset, according to county officials.

The county board had agreed in July 2022 to sell the facility to privately held Illuminate HC. But in the spring of 2023, officials became aware that Illuminate was collaborating with Saba Healthcare, another chain, to create DeKalb Healthcare Holdings LLC, which would ultimately manage the facility. 

However, county leaders had already voted to reject Saba’s bid to buy the public home in 2022, due at least in part to the company’s track record elsewhere. 

The lawsuit claims the organizations “defrauded and manipulated” the county before backing out of the deal and therefore should be held responsible for any financial losses their actions caused.

“Through collaboration and collusion with various business associates, Defendants secretly included as contracting or controlling parties the very bidders that the County had specifically rejected in the bidding process, defaulted under key deadlines under the contracts, and avoided mandated state approval activities, thus leaving the County to absorb millions of dollars in losses,” the lawsuit alleges.

Public backlash

News of Saba’s inclusion caused a months-long slowdown in the deal and sparked community protest at a public hearing in July.

More than 50 community members attended the hearing and none spoke in support of the deal, according to the DeKalb County Daily Chronicle.

Concerns focused on the quality of care residents receive at Saba’s 10 current facilities. Those facilities average a 1.3-star rating with the Centers for Medicare & Medicaid Services. Several Saba facilities also have faced allegations of resident abuse.

Illuminate later requested a new contract excluding Saba from the deal. However, the county board unanimously rejected that idea in September. Within days, the county claims, the prospective buyers attempted to drop out of the sale.

The intense controversy around the DeKalb deal illustrates the potential backlash to the sale of public facilities to private owners in general — even when those facilities are in precarious financial circumstances. 

It’s not yet clear whether cases like this may bring a chilling effect on future deals involving public nursing homes and private buyers.

The unusual legal move paints patients as wrongdoers as the healthcare system faces deep staffing shortages that have limited skilled nursing access and left patients boarding in hospitals from coast to coast.

To pursue its claims, Dignity Health is using a state law meant to keep trespassers from preventing access to family planning clinics. It has filed three separate suits in California, calling the patients’ resistance to discharge a “commercial blockade.”

In filings with the state Superior Court for Sacramento County, the system argues that other patients needed the hospital beds. But the targeted patients and their advocates have said state law provides them a right to be discharged to facilities that offer appropriate care at a price they can afford.

At least two of the cases stem from 2021, when hospital beds were still in steep demand due to acute COVID cases.

Patient advocates warn a win for the hospital system could lead to patient dumping or more patients being pushed into home care situations for which they are not equipped.

Tony Chicotel, senior staff attorney with the California Advocates for Nursing Home Reform, told KFF the way the courts determine these cases could be a watershed moment for healthcare access.

“If it’s a defense verdict, we’ll know our laws are somewhat protective of patients,” he said. “And if it’s a plaintiff’s verdict, patients around the state could be dumped and us advocates will have to figure out what we can talk about without getting sued.”

Nationally, hospitals have raised concern over much of the last year about their decreasing access to skilled nursing facilities as they look to refer patients. At the end of 2022, the American Hospital Association reported that the average length of stay among patients being discharged to post-acute care providers had increased nearly 24% from 2019 to 2022.

In some states, patients are waiting months for skilled beds. The California Hospital Association estimates at least 5,000 patients every day experience such hospital discharge delays, according to KFF. In Massachusetts this year, an average 563 patients monthly have been stuck in hospitals due to a lack of available beds, often leading to waits of one to six months.

That’s one reason the AHA has cautioned federal regulators against adopting a nursing home staffing mandate while hiring and capacity remain major challenges.

But Chicotel on Monday told McKnight’s Long-Term Care News that the main reason for limited access is the “reluctance of nursing homes to accept hospital patients they believe will outlast their Medicare coverage and remain in the nursing home on lower-paying Medicaid.”

“Many nursing homes are also reluctant to take anyone with behavioral issues for fear they will drive up labor costs,” he added. “Nursing home census is still down from pre-pandemic levels so I don’t think the logjam is due to lack of post-acute options or capacity — I think it is mostly due to a system that responds to profit incentives.  The residents that drive the highest profit margins will be accepted, the residents that generate smaller marginal profits often won’t be.”

Dignity, a nonprofit, is going after its former patients for refusing to vacate hospital beds because the system said healthcare providers had deemed each medically and legally ready to go home or to another facility. Also targeted in the case are advocates who advised the patients on their best course of action for further care.

Dignity did not immediately respond to McKnight’s request for comment, but a spokesperson told KFF the system doesn’t comment on pending litigation.

In at least two of the cases, Dignity had said patients were ready to go home, but the patient or their family wanted access to skilled nursing as a precursor to a move to an assisted living facility. The state Medicaid system issues waivers for patients to have assisted living covered, but patients must come directly from a hospital or nursing home. A discharge home would have eliminated potential coverage.

In one of those cases, Dignity eventually moved the patient to one of its own skilled nursing facilities, KFF reported. The patient, her family and their paid advocate are all named as defendants in one case.

“A ruling for the plaintiffs would certainly cause a lot of deliberation among patient advocates and would have us questioning our standard advice which, among other things, usually includes a recommendation to stay put until a safe and appropriate discharge plan is in place,” Chicotel said. “We get calls about unsafe and inappropriate discharges with some frequency. … Maybe we would have to update our fact sheet with a warning that patients could be sued if they overstay their welcome.”

Providence Operations LLC lost in court to the family of Bettye Patterson, which filed against the provider for negligence and wrongful death. The $5.5. million is the largest verdict against a nursing home in Illinois. 

Patterson entered Providence Palos Heights and Rest Haven Illiana Christian Convalescent Home in the Chicago suburbs in 2016. The 80-year-old woman was suffering from “various medical conditions,” and doctors estimated at the time that she had a life expectancy of three to six months. She was receiving supplemental oxygen through a nasal cannula 24/7, per a release issued by the family’s attorneys. 

During a visit on Oct. 16, 2016, Patterson’s daughters noticed the power in her mother’s room was out and Patterson was not receiving the supplemental oxygen. The release claimed that the daughters were unable to locate any trained nursing staff. 

“After struggling to breathe for twenty minutes without supplemental oxygen, [Patterson] passed away,” the release stated. “Medical experts, Robert Schoene, MD, and Sabine von Preyss-Freidman, MD, said the last 20 minutes of Bettye’s life were agonizingly painful, and physiologically the experience would be equivalent to drowning.”

Palos Heights is no longer in operation. Parent company Providence Operations did not return a call from McKnight’s Long-Term Care News on Friday.

Information posted on Healthcare Compare that was last updated in 2019 indicates that the facility had 155 residents and 193 certified beds. The nursing home had a 5-star rating.

The Arizona Court of Appeals ruled recently that a 2021 law shielding the providers from COVID liability claims violated a provision in the state constitution that prohibits lawmakers from revoking citizen’s right to recover damages for injuries. The case was remanded to a lower court.

“This is greatly concerning to the providers in Arizona, as it could impact all assisted living and skilled nursing facilities in the state,” Arizona Health Care Association CEO David Voepel told McKnight’s. “We are watching it very closely, especially if it makes its way up to the Supreme Court.”

Voepel added that Arizona has a statute of limitations on claims, adding a further complication to the ruling and its potential effects on the skilled nursing sector.

Alleged negligence

The complaint arose after Robin Roebuck filed a medical negligence suit against the Mayo Clinic in Arizona in January 2021 after having an adverse side effect from a test that was administered to evaluate and treat COVID-19.

Roebuck, who previously had undergone a heart transplant, had been hospitalized with COVID-19 in April 2020. After an echocardiogram ruled out any heart-related concerns, doctors ordered an arterial blood gas test to measure his oxygen levels. The test showed that Roebuck had very low oxygen blood levels, warranting monoclonal antibody treatment. 

The next day, Roebuck developed complications from the test and underwent emergency surgery that left him with diminished strength and the use of his right hand and arm, as well as significant scarring.

The case originally was thrown out based on the 2021 law, which was retroactive to March 11, 2009, when then-Gov. Doug Ducey (R) declared a state of emergency due to the pandemic. The law covered providers through March 30, 2022, when the public emergency in the state was lifted.

The Mayo Clinic was granted summary judgment by the Superior Court, which Roebuck appealed. The appellate court reversed the finding of summary judgment and remanded the case to the Superior Court.

The law in question shielded providers from ordinary negligence claims relating to the pandemic-related medical treatment they provided. It also required claims to show “clear and convincing evidence” that a provider acted with “willful misconduct or gross negligence.”

The court noted the statute did not merely raise the burden of proof for medical malpractice claims; it barred all claims for ordinary negligence arising out of COVID-related medical treatment, a violation of the Arizona constitution. The court found that the legislature left “no reasonable alternatives or choices” for bringing negligence claims against providers.

The decision also addressed the Mayo Clinic’s claims that the lawsuit was barred by the Public Readiness and Emergency Preparedness Act, or PREP, Act, a federal statute providing immunity to covered persons engaged in the administration of covered countermeasures. The appellate court decision stated that the medical treatment administered was not related to the pandemic and did not qualify as a covered countermeasure.

Cases wind through courts

Providers that used countermeasures made available through the public health emergency use authorizations could receive liability protection under the PREP Act, which preempts state law liability claims. But several cases winding their way through the courts are challenging those protections.

According to the National Conference of State Legislatures, 22 states passed liability legislation related to COVID-19 in 2020 alone. Most protections tied liability protections to the duration of the state of emergency by the state rather than the federal government, creating varying provisions and timelines on when protections end.

The 9th District Court in late June remanded almost two dozen COVID cases involving long-term care facilities to state courts, following the Supreme court’s refusal to hear a case that could have determined whether such lawsuits should be heard by federal or state juries.

The US Equal Employment Opportunity Commission asked the 7th Circuit Court of Appeals Wednesday to reinstate the claims of 15 individuals that it said were improperly removed from the case against The Village at Hamilton Pointe in Newburgh, IN. Government attorney Gail Coleman told the three-judge panel that there should be a new trial for six workers whom a jury ruled against in 2022, saying the judge in that case used “misleading verdict forms,” according to Courthouse News Service. 

“If the verdict forms had been correct, that would have eliminated any confusion,” Coleman said during arguments. “As it was, it truly was impossible for the jury to rule on the totality of circumstances.”

An attorney for the facility, which offers a range of senior and aging services, told the judges that the forms did not prevent the jury from considering any evidence presented and that they were “virtually the same form” recommended by the EEOC.

The EEOC originally filed the case in 2017 on behalf of seven employees whom it said were subjected to a racist environment for at least two years of which the management company, Tender Loving Care Management (TLC), was aware. TLC handles management, finances and HR functions for the nursing home. 

A spokesman for TLC declined to comment Friday when contacted by McKnight’s Long-Term Care News, citing the ongoing case, which court observers said could last into early 2024. 

The EEOC identified Black Hamilton Pointe workers’ experiences of this allegedly racist environment into at least 2015, and initially filed a federal lawsuit on behalf of seven of them in September 2017. Besides Hamilton Pointe itself, the complaint also named as a defendant Tender Loving Care Management. By 2018, the EEOC had identified 52 workers facing similar experiences under Hamilton Pointe and TLC Management, but it voluntarily removed five of them from the suit.

In August 2022, a jury ruled against the EEOC in all but one case — an employee whom the court awarded $45,000 for his racial harassment claim, according to Courthouse News Services. Prior to the trial, a US District Judge ruled TLC was not responsible for any of the allegedly racist resident behaviors and also halted the cases of seven Black workers who had filed harassment claims. 

The EEOC has been focused on racial harassment claims involving residents, winning a preliminary decision in July against a Vermont nursing home that will face a commission lawsuit alleging the facility failed to take appropriate measures to stop physical assaults and racial slurs from residents toward Black staff members.

The Department of Justice Civil Rights Division and the US Attorney’s Office District of New Jersey issued a joint report Thursday with findings of their investigation into the Veterans Memorial Homes at Menlo Park and Paramus. The 40-page report details “those early days [of COVID] and how the initial chaos decreased but did not end,” eventually leading to a conclusion that the facilities violated residents’ 14^thAmendment rights. 

“Even by the standards of the pandemic’s difficult early days, the facilities were unprepared to keep their residents safe,” the agencies concluded. “A systemic inability to implement clinical care policy, poor communication between management and staff and a failure to ensure basic staff competency let the virus spread virtually unchecked throughout the facilities.”

While the investigation and report primarily focus on widespread failures to keep residents and staff safe during the pandemic and the facilities’ failures to report correctly the number of COVID cases and deaths, the agencies also described dangers to residents through inadequate wound and pressure ulcer care, and failures of basic care, including fall prevention protocols.

Officials’ findings read like a “how not to” manual for skilled nursing operators.

The report describes a pervasive lack of communication between the facilities’ leadership and staffs, which led to an environment in which neither trusted the other.

A non-clinical staff member at the Menlo Park facility told investigators of a situation in which a resident with a high fever was “screaming and ripping out his oxygen tube.”

“When she reported the incident to another nurse on the unit, the nurse responded that she should mind her own business because the nurse was finishing her shift,” the report said. 

In another incident at Menlo Park, investigators from the Centers for Medicare & Medicaid Services “observed a serious failure to ensure nursing competency.” The investigators learned that a registered nurse who had never removed a catheter improperly used scissors to cut the device, “causing the remaining catheter to retract into the bladder and sending the resident to the hospital.” The nursing staff also failed to read the hospital’s directions and did not administer the prescribed antibiotics for 15 days, resulting in the resident undergoing extended antibiotic treatment for additional infections, including MRSA.

Infection control, cleaning severely lacking

The Department of Justice notified the New Jersey Department of Justice on Oct. 27, 2020, that it would be opening an investigation into the two facilities under the Civil Rights of Institutionalized Persons Act. Infection control and long-term care medical experts assisted with the investigation.

What they found were environments that continually exposed residents and staff to significant harm. The report noted that the homes had the first- and fourth-highest numbers of publicly-reported COVID deaths, but “the actual number of COVID deaths was likely much higher.”

“Due to limited testing and a failure to systemically track probable COVID deaths, it is impossible to determine the exact number of Veterans Homes residents who died of COVID during the pandemic’s first wave in 2020,” the investigators said. “But it is clear that the number of deaths during COVID’s early months was substantially higher than the numbers publicly disclosed, and substantially higher than at other facilities.”

Although the New Jersey Department of Health ordered universal masking for all nursing home staff on March 30, 2020, neither facility “successfully implemented that policy,” the report noted. US Veterans Affairs employees saw staff members at both homes either not wearing or wearing masks incorrectly, not changing PPE when moving between resident rooms, entering COVID-positive rooms without gowns, and delivering food without wearing masks and gloves. 

Days after a directive went out about hand washing, there remained “broad deficiencies in handwashing” at both facilities, according to the report. Housekeeping staff at Paramus were also not properly trained on how to disinfect resident areas, including the “terminal cleaning” of rooms from which COVID-positive residents were discharged or transferred. 

“In Menlo Park, the nursing stations were dirty and there was no cleaning of common areas; one U.S. Veterans Affairs staffer reported ‘ants/bugs everywhere,’” the report noted. 

Fear of retribution

The report also outlines staff members’ “inadequate” cooperation from both state and facility officials with the federal investigation along with “widespread dissatisfaction and low morale among the staff.” Employees said that complaints about resident care, poor communication between leadership, supervisors and employees, and “inadequate mental health support” were ignored. 

Staff attorneys and facility management tracked the movements of federal investigators as they moved through the homes, the report said. They interrupted witness interviews, asked witnesses afterward what was discussed, and directed staffers not to speak with investigators. Following the first site visit to Paramus, the CEO and at least one supervisor told department heads and staff that, “DOJ can shut us down, staff should be mindful of what they say.” Staffers reported being fearful of retaliatory actions if they spoke with investigators, the report noted. 

The report also stated the federal subpoenas were “delayed, incomplete, contained numerous wholly non-responsive documents, and regularly consisted of thousands of documents with little to no organization and in no discernible order.” 

“Resident medical records were particularly disorganized, with documents regularly out of order. Some charts contained records related to other residents. These production problems caused substantial delays and impeded the Department’s ability to effectively and expeditiously investigate potential CRIPA violations,” the report said. 

The Attorney General for New Jersey has 49 days after issuing the report to file a lawsuit under the Civil Rights Act if the problems raised in the report are not “satisfactorily addressed,” the report said.