Brookdale Senior Living residents join class action lawsuit

Bernie Jestrabek-Hart calls her Brookdale Senior Living Scotts Valley apartment a ‘live-in art studio.’ (Dan Coyro -- Santa Cruz Sentinel)

SCOTTS VALLEY >> Two residents of Brookdale Senior Living Scotts Valley have joined a lawsuit filed in federal court in San Francisco alleging the company based in Brentwood, Tennessee, committed elder financial abuse through understaffing that makes it impossible to provide services residents were promised and have paid for.

The lawsuit, which names seven plaintiffs, seeks class action status for 5,000-plus residents in Brookdale’s 89 assisted living facilities in California and at least $45 million in damages, $9,000 for each affected resident.

The lawsuit alleges Brookdale, a publicly traded company that is the largest provider of assisted living for senior citizens in the U.S., violated the Americans with Disabilities Act by failing to make its facilities readily accessible by individuals with disabilities.

Bernie Jestrabek-Hart, 72, of Scotts Valley, is one of the plaintiffs. The other Scotts Valley plaintiff is Patricia Lindstrom, 81, whose husband Art died in February of a heart attack.

The lawsuit alleges Brookdale staffing is based on predetermined labor budgets and desired profit margins, with permission from corporate headquarters required for deviation. This creates a disincentive for executive directors at a facility to request increased staffing “because they are not eligible for bonuses unless they meet earnings targets,” according to the lawsuit. Gay Crosthwait Grunfeld of Rosen Bien Galvan & Grunfeld, one of three law firms representing plaintiffs, contends the incidents detailed in the initial lawsuit filed in July are symptoms of a systematic problem at Brookdale facilities.

Jestrabek-Hart read about the lawsuit and contacted the law firm to share her story.

Brookdale spokeswoman Heather Hunter said, “We believe this lawsuit is without merit. We are not able speak directly to specifics, but we are defending ourselves vigorously.”

In February, Brookdale Senior Living reported a net loss of $572 million for 2017 on $4.75 billion in revenue, compared with a net loss of $405 million on $4.98 billion in revenue for 2017.

STAFFING ISSUES

Brookdale Scotts Valley, licensed for 220 beds at 100 Lockwood Lane, was called Oak Tree Villa before Brookdale took over.

Jestrabek-Hart, who uses a wheelchair, came to Brookdale Scotts Valley in October 2015 and is paying $4,477 per month plus $834 per month for assistance with dressing and showering.

Fees have risen 21 percent and 11 percent respectively since she moved in, compared to the 2016 consumer price index was 3.4 percent, according to the lawsuit.

A metal sculptor for 30 years, Jestrabek-Hart overcame polio and ran an equestrian facility in Idaho. In 2012, she switched to fabric creations after surgeries to fuse her back and replace her shoulders. She’s dealt with arthritis and fractured toes on her right foot.

She expected she would get help showering four times a week as per her contract and that she would be able to take the Brookdale shuttle bus to doctor’s visits and social outings, as the company website stated.

After she moved in, she learned transportation was limited — Monday and Thursday 10 a.m. to 4 p.m. — and she was told her motorized wheelchair was too heavy — which had not been an obstacle at her prior assisted living residence in San Jose.

She said she calls Para Cruz, and pays for the service herself.

According to the lawsuit, the fees have risen due to the cost of providing services but Jestrabek-Hart said there are not enough staff.

She was one of several residents stranded on the first floor for three hours, unable to reach her room on the second floor, when the power went out. She was unable to use to her CPAP machine, prescribed for sleep apnea; there was only one generator-powered outlet in another wing, inaccessible to her.

She has waited two to three hours for a staffer to help her shower, sometimes falling asleep before assistance arrives, and she has waited 90 minutes to an hour in the morning and evening for help dressing and undressing. She’s been told only one staff member is on duty to meet the needs of 150 residents.

She once fell out of her wheelchair onto the floor of the laundry room, enclosed by a heavy hard-to-open door and lacking emergency pull cords, with no way to summon help; by chance someone walked in and assisted her.

She notified the facility, but nothing has changed.

MEALS ISSUE

Lindstrom and her husband came to Brookdale Senior Living in November 2015, attracted by “nutritious meals and snacks planned by a registered dietician,” as one of the forms said.

Her husband had diabetes, heart disease and cognitive impairment. They paid $5,900 per month for a two-bedroom unit plus $400 per month as a second-resident fee, before moving to a smaller studio for $4,295 per month plus the $400 per month second-resident fee.

Lindstrom found there was no dietician on staff and too few staff to pay attention to individual dietary needs. The menus, determined in Tennessee, were starchy, mashed potatoes, baked potatoes and root vegetables, lots of canned foods rather than fresh, and “sugar, not just in desserts,” she said.
In three months, her husband gained 20 pounds, she said.

“His blood sugar was high repeatedly,” she said. “That meant his brain didn’t work right.”

COMPLAINTS

In April 2017, the state Department of Social Services, which licenses residential care facilities for the elderly, issued a $10,000 penalty to Brookdale Senior Living Scotts Valley after an investigation into a fall by elderly man on Feb. 21, 2016 and discovered the next day.

The man was hospitalized in the intensive care unit for dehydration and rhabdomyoloysis, which is when damaged muscle issue breaks down.

The state found the man had not received food or water for 24 hours, concluding “staff failed to provide.”

Jestrabek-Hart is serving her second one-year stint as president of the resident’s council. She sent letters last fall to then-CEO Andy Smith and in March to the new CEO, Cindy Baier, describing issues such as not enough staffing, transportation problems for those with electric wheelchairs and uneven sidewalks due to tree roots creating trip hazards.

State law requires residential facilities to respond in writing within 14 days to any written concerns or recommendations submitted by a family council representing residents, but Jestrabek-Hart did not get a response to her letters.

She said the new executive director, May Sunglao, who started in August, made some improvements, such as painting the sidewalk trip hazards yellow so they are easier to see and taking care of the lawn.

“Our staff is wonderful. They work very hard trying to do what’s right,” said Jestrabek-Hart.

If the lawsuit should be successful, she would like to see more staff.

At the front desk is a notice saying seven positions are available.

Baier, who became CEO Feb. 28, told McKnight’s Senior Living that the Brookdale plans to increase total compensation costs 5.5 percent to 6 percent, improving salaries and wages to boost employee retention.

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Brookdale Senior Living residents join class action lawsuit