Huge nursing home chain discharged patients improperly, California prosecutors allege

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By Richard Winton, Anita Chabria, Los Angeles Times, March 15 2021

California Atty. Gen. Xavier Becerra, pictured during a Sept. 5 news conference, is part of the lawsuit against Brookdale Senior Living Inc.
(Rich Pedroncelli / Associated Press)

A coalition of California prosecutors has sued the nation’s largest senior living operator, alleging it ignored laws that protect patients when they are discharged from skilled nursing facilities and that it exaggerated the level of care to the federal government’s nursing home rating system.

The lawsuit accuses Brookdale Senior Living Inc., a Tennessee-based company, of abruptly transferring or discharging residents to bring in more lucrative newcomers at 10 of its skilled nursing facilities in California. The facilities are usually paid more by Medicare than other sources, and when that coverage ends there is an incentive to discharge a resident, the lawsuit alleges.

In a first-of-its-kind move, the prosecutors also accused it of falsely advertising its level of care by giving false information to the Centers for Medicare & Medicaid information system. The Medicare rating system awards “star ratings” to skilled nursing facilities with one being the worst and five the best. That system relies on information from the nursing homes.

Brookdale, the lawsuit alleged, got undeserved high ratings in several categories to attract prospective patients and their families. The lawsuit comes as the pandemic has taken a deep and deadly toll on skilled nursing facilities across California.

“Residents of Skilled Nursing facilities are often our mothers, our fathers, and our grandparents who are facing challenging times in their lives. Rules designed to protect nursing facility residents must be followed to ensure the dignity, respect, and compassion that residents deserve,” Kern County Dist. Atty. Cynthia Zimmer, who is leading the lawsuit, said in a statement. “When companies fail to comply with these rules, they create environments that subject the most vulnerable among us to unnecessary victimization, stress, and even physical harm.”

Late Monday, a Brookdale spokesperson denied any wrongdoing by the company.

“We categorically deny that Brookdale engaged in intentional or fraudulent conduct,” the spokesperson said. “We are disappointed in the allegations against the skilled nursing industry. Publicizing unproven allegations is reckless and undermines the public’s confidence in a service necessary to the care of elderly individuals, especially during the COVID-19 pandemic.”

The lawsuit alleges that Brookdale failed to adequately notify its patients and their families of transfers and discharges. Under the law, the suit noted, skilled nursing facilities are required to give notice of transfer or discharge at least 30 days in advance, or as soon as practical.

At the Brookdale facilities, the lawsuit alleges, required notices to patients, with a copy to the local ombudsmen, were not delivered. Brookdale also is accused of failing to properly prepare its patients for transfer or discharge. The coalition of California prosecutors alleges Brookdale’s actions endangered the health of its patients and also left families scrambling to find other places for their relatives.

“Today, prosecutors up and down the state emphasize we’ll hold nursing home operators accountable for how they treat their patients, who are more vulnerable than ever during the pandemic,” Los Angeles City Atty. Mike Feuer said in announcing the litigation.

The lawsuit also alleges that Brookdale violated the Unfair Competition Law and False Advertising Law by misrepresenting the quality of its care to the public by reporting false information to the Centers for Medicare & Medicaid Services to bolster its ratings. The lawsuit alleges that Brookdale over-reported its nursing staffing hours and that move meant it awarded itself undeserved four- and five-star ratings on the five-star scale.

Even after the Centers for Medicare & Medicaid Services in 2018 cracked down on nursing home data, the prosecutors accused Brookdale of “falsifying its payroll-based journals” of time spent with residents by staff.

“We are holding Brookdale accountable for artificially increasing its profits by cutting corners when transferring or discharging its patients. It lured individuals to its facilities through false promises about providing the highest quality care,” said Atty. Gen. Xavier Becerra, who has been nominated by President Biden for secretary of Health and Human Services, which oversees the Centers for Medicare & Medicaid Services.

Mike Dark, a staff attorney for California Advocates for Nursing Home Reform, called the lawsuit a landmark in the oversight of elderly care facilities in California.

“This is really the first time we’ve seen the state take this issue head-on, and it gives us some hope that these vulnerable people are going to get some justice,” he said.

Dark said the problem outlined in the suit — of favoring higher-paying Medicare patients over Medi-Cal ones — is widespread, despite being a form of discrimination that is illegal in California. He said his organization is often contacted by patients who claim they are being forced out of their facility when Medicare funding, which typically lasts 30 days, runs out.

“The problem … is one that residents of California’s long-term care facilities have faced for decades,” he said. “It happens every day.”

Charlene Harrington, a UC San Francisco professor emeritus of social behavioral sciences and an expert in for-profit nursing homes, said the suit would have “a positive effect on the whole industry.”

Becerra, Feuer and Zimmer were joined in filing the lawsuit by the district attorneys of Alameda, San Diego and Santa Cruz counties. The lawsuit seeks civil penalties and an injunction to prevent further unlawful acts. Under California law, the company could face $2,500 per violation; because the violations are against seniors, that number can be doubled for each violation.

Changes to California law are needed to ensure that the industry does not engage in the practices outlined in the lawsuit, experts say. Dark said three bills under consideration would tighten regulations.

Assembly Bill 279 would prohibit care facilities from transferring patients or making significant changes to the nature of their services during a state of emergency, such as the pandemic.

Senate Bill 650 would require more financial transparency from providers; facilities are often owned under complex webs of limited liability companies and corporations, making it difficult to discern where profits go.

A third measure would restrict who can own and operate such facilities.