Schwab Faces Cash Sweeps Suit Alleging Elder Financial Abuse

By Dinah Wisenberg Brin

What You Need To Know

• The spread between client and Schwab's interest rates boosted firm profits, the suit contends.
• Schwab breached its loyalty duty to customers, the complaint alleges.
• Schwab says its sweeps program is compliant and transparent.

A proposed class action lawsuit against Charles Schwab over the interest paid in its cash sweeps program accuses the firm of elder care financial abuse in addition to breach of fiduciary duty, fraudulent inducement and other violations.

In the lawsuit, recently transferred to U.S. District Court for the Central District of California in Los Angeles, Elizabeth L. Bueno and Abraham Atachbarian also accuse the financial services giant of unjust enrichment, breach of contract and violations of California business and professional codes.

The complaint addresses Schwab’s alleged actions with respect to programs in which it automatically swept customers’ uninvested cash in their non-advisory brokerage accounts into high-interest-bearing deposit accounts at its affiliated banks while paying them “unduly low interest on this money.”

The court posted a notice Monday encouraging the parties to pursue alternative dispute resolution and indicating that it would later issue an order referring them to mediation.

Customers have filed multiple lawsuits nationally accusing Schwab and other asset managers of paying unreasonably low interest rates on balances in cash sweep programs and placing their own profits over clients’ best interests, contending that clients could have earned significantly higher interest elsewhere.

From November 2021 to May 2025, “Schwab never paid more than .45% interest to its customers in its Cash Sweeps Programs. Since December of 2024, the rate has dropped as low as .05%,” the complaint alleges.

“By doing so, in a conflict of interest and in breach of its duty of loyalty to its customers … Schwab was able to earn significant undisclosed interest on the interest rate spread and fees for itself, while paying its customers … less than the contractually required reasonable or prevailing rates of interest, depending on the type of account they maintained,” it contends.

The suit alleges that “Schwab intentionally failed to disclose the enormous spread that it was earning between the low rates of interest it paid to customers as compared to the rates that Schwab and its Program Banks were earning with customers’ uninvested monies," although the rates were published in a separate disclosure.

This earned interest helped fuel Schwab’s profits and finance its transaction with TD Bank, the lawsuit contends — apparently a reference to its TD Ameritrade acquisition.

“Schwab paid customers depressed rates of interest, in a high-interest rate environment rather than ‘reasonable’ rates or rates of interest that were consistent with prevailing market and business conditions, as required,” the plaintiffs allege.

The proposed class comprises all California residents who held non-advisory brokerage and/or retirement accounts with Schwab and had cash deposits from those retirement accounts invested in cash sweep programs during the relevant period. A subclass includes Californians 65 or older who had cash deposits in their retirement accounts subject to cash sweep programs, according to the complaint.

The case, moved from California Superior Court, appears to be a refiling or amended complaint from one filed earlier in the year.

"Our cash sweep program is transparent, fully disclosed, and operates in compliance with all applicable regulations. We stand firmly behind our program which aligns cash management options to our clients’ financial needs and goals," a Schwab spokesperson told ThinkAdvisor by email.

"We offer extensive support and flexibility, enabling clients to manage their cash in a way that best fits their individual financial needs. Whether they seek more accessible cash for daily use or prefer investments aimed at higher returns, the choice is theirs to make," added the spokesperson. 

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Schwab Faces Cash Sweeps Suit Alleging Elder Financial Abuse 

Families object to settlement amounts in class action lawsuit against disgraced nursing home owner

Story by Shay O'Connor

On Thursday, a Jefferson Parish judge announced that families involved in a class action suit against disgraced nursing home owner Bob Dean would receive final payments soon.

This, as some plaintiffs appeared in court and pleaded for more money.

Hundreds sued Dean for transporting their older family members to a warehouse in Tangipahoa Parish during Hurricane Ida.

About a dozen people died at the site.

Mitchell Harris is the son of Debra Whiltberger.

"We didn't get justice through Bob Dean. He's living in a nice, beautiful mansion. We are here with nothing," Harris said.

Harris said his mom was 60 years old when she died just weeks after enduring horrid conditions at a warehouse in Independence in the wake of Hurricane Ida.

"She was bedridden. She had had several strokes. Couldn't walk or eat by herself. Had no water, during that time, no nothing. Just laid there. I don't know how she did it," Harris said.

Harris said his family was allocated $10,000 in an initial settlement, and he has to pay attorney fees out of that amount.

It's why he went before the judge to object.

"I'd rather take a loss and fight it than someone offer me an insult on what they think my mom's life was worth," Harris said.

He is not alone. Jeanette Triplette said her mom is still dealing with the latest effects from the terrible experience.

"You can't put a price on someone's life. You can't put a price on someone's quality of life," Triplette said.

More than 400 patients or their living family members are to split under $9 million in Bob Dean's insurance proceedings. Each of the families who participated in the class action lawsuit received allocation letters based on how much officials believed they are owed.

People received different amounts.

These requests come as attorneys said they feel the process has been smooth, given the circumstances.

"Watching from the outside, it seems like it's been longer. But inside the legal system, it has moved very quickly," said attorney Rob Couhig Jr.

Attorneys said most should have received at least two payments. The biggest lump sum is expected to go out to families. Another payment could follow based on what is left after that.

WDSU spoke with at least one family who said they received their allocation letter, but so far, no payments.

"None whatsoever. They sent like $1,000 and $1,700 out. We never got none of that," said Rachael Ayo, daughter of Ella May Alario.

Dean was sentenced to three years' probation last July and ordered to pay $2 million in restitution. There is expected to be another hearing to address the plaintiff's request.

The judge also said if he agrees to the objection it will slow the process for those families who objected. But he will look into the matter.

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Families object to settlement amounts in class action lawsuit against disgraced nursing home owner

See Also:
Bob Dean

Class action lawsuit alleges Alaska mishandled public guardianship duties

By Iris Samuels 

Former guardian Tom McDuffie at a public fitness review hearing for his private guardianship nonprofit, Cache Integrity Services, at the Nesbett Courthouse on Wednesday, Feb. 14, 2024. (Bill Roth / ADN)

Several disabled Alaskans have filed a class action lawsuit against the state of Alaska over its mishandling of the guardianship services it was required under law to provide.

The lawsuit stems from the Alaska Office of Public Advocacy’s decision two years ago to request that dozens of public guardianship clients — all disabled and vulnerable adult residents of Alaska — be transferred from the care of the state to the care of a private guardian who proved incapable of ensuring their basic needs were met.

Under a 2022 court order, private guardian Thomas McDuffie took over dozens of cases from the Office of Public Advocacy even before McDuffie formally received his guardianship license. What followed were reports of neglect and abuse that led some wards to lose property, incur massive debt and suffer from declining health.

According to the lawsuit, which was filed on behalf of 10 named plaintiffs by Anchorage civil rights attorney Caitlin Shortell, Alaska’s Adult Protective Services agency received multiple complaints about McDuffie’s misconduct and negligence, but the agency failed to respond to the complaints and investigate the wrongdoing as required by law.

McDuffie is facing numerous lawsuits over his alleged misconduct in neglecting and mishandling his duties to care for around 122 guardianship and conservatorship wards between 2021 and 2023. No criminal charges have been filed against him.

This is the first lawsuit that names the state of Alaska and heads of public agencies as partially responsible for the damage suffered by McDuffie’s former wards.

Alongside McDuffie and his private guardianship agency, Cache Integrity Services, the lawsuit filed in July names as plaintiffs Beth Goldstein, the deputy director of the Office of Public Advocacy, and Anthony Newman, the director of Adult Protective Services within the Alaska Department of Health.

The plaintiffs, who belong to a group of around 122 guardianship and conservatorship wards that were transferred from the care of the Office of Public Advocacy to McDuffie’s agency, are seeking compensation from the defendants on account of their misconduct.

According to the lawsuit, the actions of Newman and Goldstein resulted in “egregious neglect, abuse, and loss of real and personal property, money and benefits.” The lawsuit states that Newman and Goldstein “knew or should have known that they were obligated to protect plaintiffs but were deliberately indifferent to their duties.”

The state of Alaska has not yet formally responded to the lawsuit, and has several weeks to do so.

“As a general matter, we can all agree that the actions of Cache Integrity are tragic, and OPA and the Department of Law have been working diligently on solutions,” Alaska Department of Law spokesperson Sam Curtis said by email. “Our focus remains on how to improve the situation and ensure Cache Integrity can do no more harm. It is unfortunate that the State has been included in this lawsuit when the responsibility lies with those that caused the injury.”

Individuals placed under a court-appointed guardianship are adults who rely on their guardian to ensure they are housed and their most basic needs are met. The guardian is also responsible for ensuring wards receive public benefits, on which wards typically depend.

According to the lawsuit, Goldstein “recommended, transferred and referred” Alaskans who had been wards of the state to McDuffie’s agency but did not verify that McDuffie met the requirements of a private guardian.

The Adult Protective Services agency, overseen by director Newman, then “received numerous complaints” regarding neglect of the plaintiffs by McDuffie and his agency “but inexcusably failed to direct staff to investigate those reports of harm, prolonging and compounding the harms” to the plaintiffs in the case, according to the lawsuit.

After McDuffie and his agency proved incapable of caring for their guardianship and conservatorship clients, the individuals were transferred back to the responsibility of the Office of Public Advocacy in 2023, and Goldstein was appointed “special investigative conservator” by Anchorage Superior Court Judge Eric Aarseth.

Since then, McDuffie’s former wards “have been unable to recover lost property and funds” and have lost access to public benefits, leaving some of them unable to pay for room and board, and causing some to be evicted from their housing, according to the lawsuit.

Goldstein and the Office of Public Advocacy “failed to remedy the harms caused by McDuffie and Cache Integrity Services,” according to the lawsuit. The state did not hire a forensic accountant as ordered by the Superior Court, and the plaintiffs’ funds were not released to their new guardians and conservators.

“We had hoped that Goldstein and the State of Alaska would act, but their ongoing negligence and failure to protect Plaintiffs has necessitated the filing of this class action complaint,” Shortell said in a written statement. “We are seeking damages and injunctive relief for Plaintiffs and all 122 former wards of Thomas McDuffie and Cache Integrity Services.”

Between August 2022 and November 2023, Adult Protective Services, an agency within the Alaska Department of Health charged with investigating potential mistreatment of adults, received several complaints alleging that McDuffie and his agency were neglecting the wards assigned to the agency.

Complaints submitted to Adult Protective Services are not made public until investigations are complete.

The complaints included allegations from assisted living homes that McDuffie was not submitting payment for wards’ housing, according to the lawsuit. They also included reports from care coordinators that McDuffie did not respond to requests for signatures on needed documents to authorize Medicaid services. Family members of wards reported that McDuffie and his agency had breached their conservatorship or guardianship duties.

In one case, McDuffie left one of his wards in the hospital for more than a year when hospitalization was not necessary, incurring a hospital bill of more than $615,000, according to the court filing.

In another case, McDuffie failed to file and pay taxes on behalf of a ward, until the IRS seized the ward’s property and froze the bank accounts of the ward’s daughter.

Adult Protective Services is required by statute to “promptly initiate an investigation to determine whether the vulnerable adult who is the subject of the report suffers from abandonment, exploitation, abuse, neglect, or self neglect.” According to the lawsuit, Adult Protective Services did not conduct the required investigation and take action to protect the wards from neglect and abuse.

The plaintiffs are requesting financial compensation. They are also asking the court to prohibit Goldstein from serving as special investigative conservator, and to ensure that a forensic accountant is hired to unwind the finances of the plaintiffs and return their property to them. Aarseth, the judge assigned to oversee McDuffie’s former wards, previously declined requests to appoint an independent investigator.

[Judge rejects call for independent investigation of state-endorsed private guardian who neglected dozens of clients]

If the court certifies the class described in the lawsuit, including all of wards that had been transferred from the state to McDuffie’s agency, then every one of those wards could be entitled to compensation, rather than just the 10 named plaintiffs in the lawsuit.

William Earnhart, an attorney representing Cache Integrity Services, has filed a motion to consolidate the six separate lawsuits targeting McDuffie and his agency that have been filed in recent months.

According to the motion, Cache Integrity Services “is for all practical purposes bankrupt.” The agency has a $1 million general liability policy that could cover some of the damages requested by the plaintiffs, Earnhart wrote in the motion.

Full Article & Source:
Class action lawsuit alleges Alaska mishandled public guardianship duties

Class Action Targets Insurer for Forcing Seniors from Nursing Homes

by Sara E. Teller

UnitedHealthcare is accused of illegally using artificial intelligence (AI) to override human decisions.

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In a groundbreaking legal move, a potential class action lawsuit has been filed against the nation’s largest insurer, accusing it of illegally leveraging artificial intelligence (AI) programs to override medical professionals’ decisions. In doing so, the defendant is allegedly forcing seniors from nursing homes.

The case alleges that UnitedHealthcare, the defendant in question, used its nH Predict AI Model to terminate post-acute care coverage for Medicare Advantage beneficiaries, leading to a potential class that could include tens of thousands of plaintiffs with damages claims reaching billions of dollars.

The lawsuit, brought by the estates of Gene B. Lokken and Dale Henry Tetzloff, sheds light on the abrupt termination of their skilled nursing care coverage just days into their stays. Despite doctors advocating for further in-patient services, both appeals were denied, compelling the families to cover months of continued care out-of-pocket until the seniors’ unfortunate demise earlier this year.

According to court documents filed in the US District Court in Minnesota, the attorneys argue that UnitedHealthcare’s use of AI to determine coverage needs constitutes a breach of fiduciary duties, including good faith and fair dealing. The lawsuit contends that the insurer allowed its AI model to wholly determine coverage requirements, prioritizing its economic interests over those of the insureds.

Photo by Andrea Piacquadio from Pexels

This legal action comes amid growing scrutiny of insurers employing AI in decision-making processes. Congress has addressed denial patterns, with STAT News unveiling investigations into the issue. Former UnitedHealthcare employees cited algorithm-based calculations influencing claims denials, even in cases involving seriously ill patients.

The Centers for Medicare & Medicaid Services (CMS) has taken steps to limit how Medicare Advantage (MA) insurers deny care, but these changes won’t take effect until January 1. Critics remain uncertain about the efficacy of the updated MA rule in prompting real change.

The recent lawsuit seeks to impact UnitedHealthcare financially, alleging a fraudulent scheme that benefits the insurer while prematurely displacing elderly individuals from care facilities or forcing them to deplete family savings to continue necessary medical care.

The legal document argues that the insurer’s AI model, by disagreeing with real-life doctors’ determinations, provides a financial windfall for UnitedHealthcare. This occurs through policy premiums without the corresponding fulfillment of promised care.

The plaintiffs’ lawyers emphasize that the elderly are bearing the brunt of this alleged fraudulent scheme, experiencing premature discharges from care facilities or exhausting savings due to the insurer’s reliance on an AI model that overrides medical professionals’ decisions.

The lawsuit accuses UnitedHealthcare of systematically denying claims using its AI model, knowing that a majority of policy holders won’t be appealing their denied claims. It was argued by the plaintiffs that most of these policy holders will bear out-of-pocket costs or sacrifice the remainder of their prescribed post-acute care due to impaired conditions, lack of knowledge, and limited resources to contest the AI-powered decisions.

UnitedHealthcare, with health insurance plans covering 52.9 million Americans, has yet to respond to the latest legal action concerning forcing seniors from nursing homes, maintaining its previous stance that the case lacks merit. The outcome of this lawsuit could have far-reaching implications, potentially reshaping the use of AI in insurance decision-making and its impact on vulnerable populations.

Sources:

AI-shortened nursing home stays drive potential class action suit against insurer

HHS Finalizes Rule to Strengthen Medicare, Improve Access to Affordable Prescription Drug Coverage, and Hold Private Insurance Companies Accountable to Delivering Quality Health Care for America’s Seniors and People with Disabilities 

Drawbacks of Artificial Intelligence and Their Potential Solutions in the Healthcare Sector

Full Article & Source:
Class Action Targets Insurer for Forcing Seniors from Nursing Homes

UnitedHealth sued for allegedly using AI to deny elderly patients care

A lawsuit says UnitedHealth used an artificial intelligence algorithm to systematically deny patients the care they needed.

By Alex Arger 

UnitedHealth Group is being sued for allegedly using an artificial intelligence algorithm to systematically deny elderly patients rehabilitative care.

The class action lawsuit, filed Tuesday in Minnesota district court, says the defendants — UnitedHealth Group, UnitedHealthCare and NaviHealth — illegally used an AI model called nH Predict in place of medical professionals despite knowing it had a 90% error rate. This helped the group continuously deny Medicare Advantage Plan patients the care their doctors said was necessary, such as nursing facility stays, by "predicting" what a patient "should" require instead of what they actually do, the lawsuit states.

It also says the defendants intentionally limited "their employees' discretion to deviate" from nH Predict, forcing them to meet dedicated targets of use or be disciplined and terminated.

More than 90% of patients who appealed the nH Predict's claim denial had the decision overturned, according to the lawsuit.

But the plaintiffs claim the health care companies knew only a tiny group of policyholders would appeal the denied claims and that most would either pay out-of-pocket for the care or forgo it altogether. This would create higher profit for the company while patients deplete their savings to continue care "all because an AI model 'disagrees' with their real live doctors' determinations," it states.

"Defendants bank on the patients' impaired conditions, lack of knowledge and lack of resources to appeal the erroneous AI-powered decisions," the lawsuit says.

UnitedHealth Group is the largest insurance company in the U.S. with more than 52.9 million customers. 

Two of those customers are the plaintiffs: Gene Lokken and Dale Henry Tetzloff, who are now both deceased.

Both plaintiffs were covered by a Medicare Advantage Plan provided by the defendants. This plan is supposed to cover post-acute care, which is medically necessary care for patients recovering from serious illnesses and injuries. This could include skilled care, therapy and other home health services, skilled nursing facilities, inpatient rehabilitation facilities and long-term care facilities.

But the plaintiffs say they were forced to pay out-of-pocket for the post-acute care their doctors deemed necessary for their health, prompting the lawsuit that seeks to stop the practice with a court order and award patients damages.

Their attorneys are pushing to represent tens of thousands of people who have similar stories, according to Reuters, which could amount to damage claims reaching billions of dollars.

UnitedHealth denied all claims that nH Predict is used for coverage determinations, according to HealthCare Drive.

Full Article & Source:
UnitedHealth sued for allegedly using AI to deny elderly patients care

Understaffing is driving force behind lawsuits against senior living communities, legal experts say

by Kimberly Bonvissuto

Broken promises about service and care levels, attributed to “grossly understaffed” at senior living communities and skilled nursing facilities, are the driving force behind a surge in class-action lawsuits against such providers, according to two legal experts.

The Long Term Care Community Coalition hosted a webinar Tuesday that included AARP Foundation Litigation, a charitable nonprofit arm of the AARP that focuses on civil rights cases, abuse and neglect in senior living communities and skilled nursing facilities. The group advocates for systemic change in federal and state courts to “change the circumstances that give rise to poor care,” AARP Foundation Litigation Vice President Kelly Bagby said.

Benjamin Davis, AARP Foundation Litigation senior attorney, said an issue arises when operators promise to provide a sufficient level of staffing but residents and their families mistakenly believe that that promise means that their loved ones will receive individualized care. The dynamics of senior living communities and skilled nursing facilities, he said, mean that staff members are devoted to all residents, not individuals.

The result, Davis said, is that providers make promises to attract residents but then don’t meet resident needs or effectively reassess residents to determine their changing needs.

Davis highlighted a current case against Chancellor Senior Management, a Columbus, OH-based organization that manages four assisted living communities in the state. The lawsuit alleges that Chancellor used a formula to determine the hours of care that each resident needed based on their individual conditions but only applied that formula for billing purposes, not to determine staffing levels. The lawsuit further alleges that staffing decisions are made at the corporate headquarters rather than at the community level.

The Supreme Court of Appeals of West Virginia opened the door for the case to move to a class action lawsuit, Davis said. The court also further declared that the provider’s arbitration agreements in resident admission contracts were unenforceable because they were part of a larger contract rather than a stand-alone agreement. The American Health Law Association requirements incorporated into those agreements call for them to be stand-alone agreements. 

Bagby referenced a federal class action case against Brookdale Senior Living filed in 2020. The lawsuit accuses the country’s largest senior living company, based in Brentwood, TN, of “chronically insufficient staffing” at its communities, allegedly to meet financial benchmarks. The lawsuit also accuses Brookdale of misleading residents and families and of failing to provide care and services.

“Our cases are about how to force companies to change their practices around adequate staffing,” Bagby said, adding that attorneys are focusing on violations of the consumer protection statutes that allow residents to recover damages for injuries when companies do not deliver on their promises. “In every assisted living and nursing facility, the residency agreement lays out those promises to residents,” she said.

Bagby said that it is critical for providers to be transparent about their practices and to not lie about their staffing levels. 

Class action staffing lawsuits not unprecedented

Class action lawsuits against senior living providers related to staffing levels are not a recent phenomenon.

In 2021, for example, Aegis Living of Bellevue, WA, settled two class action lawsuits for a combined $16.25 million. The lawsuits alleged that Aegis based staffing levels on predetermined staffing budgets rather than on resident care needs and in doing so violated elder abuse and consumer protection laws.

Similar legal action against other senior living companies also resulted in settlements.

For instance, the former Emeritus Corp., which merged with Brookdale in 2014, settled a class action lawsuit in 2016 for $13.5 million. The suit alleged that Emeritus misled assisted living residents about the use of a computerized system to evaluate residents and determine sufficient staffing and care levels. 

Atria Senior Living settled a similar lawsuit for $6.4 million that same year, and Oakmont Senior Living settled a class action lawsuit for $9 million earlier this year. A similar lawsuit against Sunrise Senior Living is pending.

Last fall, Argentum, the American Seniors Housing Association and the California Assisted Living Association filed an amicus brief in the Sunrise case, arguing that class actions are “unnecessary and counterproductive” because assisted living communities are highly motivated to provide quality care to residents. The brief also argued that the expense and disruption of defending class action suits diverts resources from care provision.

Full Article & Source:
Understaffing is driving force behind lawsuits against senior living communities, legal experts say

Circling the alleged ‘claims sharks': Veterans' lawsuit accuses disability claims consultant of breaking federal law

The lawsuit also accuses the company of practicing law without a license

By Lucy Bustamante, Noreen O'Donnell and Lucia Walinchus

U.S. war veterans filed a class action lawsuit alleging that the help they received to file federal disability benefits is part of an illegal predatory business, according to one of their lawyers.

The two veterans accused Veterans Guardian VA Claim Consulting, LLC, of Pinehurst, North Carolina, of being a “claims shark” that charged them fees beyond what is permitted by federal law.

Their lawsuit, filed on Aug. 23, also accuses Veterans Guardian of practicing law without a license. The veterans alleged that the company provided verbal or written discussions of legal issues and procedures, even as it acknowledged that it was not a law firm, did not have a lawyer on staff and was not licensed to practice law.

“As soon as you go on the internet and Google for VA disability increase what's really going to jump out at you is the breadth of the volume of these claim sharks,” said Jon D. Pels of The Pels Law Firm of Bethesda, Maryland. 

The veterans are asking that their legal action be certified as a class action lawsuit covering the thousands of veterans who were Veterans Guardian clients.

One of the largest parts of the federal discretionary budget, funding for the Department of Veterans Affairs ballooned in recent years from $201.4 billion in 2019 to $308.5 billion in 2023. In 2024 the agency asked for $325.1 billion, a 61% increase from five years prior. With the growth in the budget has come the growth of so-called “claim sharks,” companies charging more than lawyers and others are legally allowed to charge for preparing the same documents, and who do not complete the VA’s legally required training.

The companies maintain that they are legally providing education services, and that their veteran customers are paying to learn how to fill out their forms.

“We believe the recent litigation contains false accusations and we are confident that we will be vindicated by a court ruling,” Veterans Guardian said in a statement to NBC.

“In the meantime, we remain dedicated to providing valuable services to the veteran community and continue to advocate for meaningful VA accreditation reform in Congress that confirms veterans’ right to select the assistance they want in submitting benefit claims while holding bad actors accountable and providing guardrails to protect veterans from those with negative intentions,” it said.

Fees beyond what's allowed

Abigayle Patterson, an Army veteran living in El Paso, Texas, and Navy veteran Brian Otters of Southaven, Mississippi, say they got assistance from Veterans Guardian to successfully revise their disability assessment by the Department of Veterans Affairs.

The company estimated that Patterson’s disability rating increased from 60% to 80%, resulting in an additional $664.40 in her monthly payments. Otters’ increased from 70% to 90%, and his payments rose by $599.33.

Both were billed five times the increase for consulting. That came to a total of $2,988 for Patterson, taking into account a 10% discount for a lump sum payment, and $2,990 for Otters, to be paid in five monthly installments.

Veterans Guardian is not accredited by the VA as required to provide veterans with assistance filing applications for disability benefits, the lawsuit says. The fees charged were above what the VA allows accredited individuals.

“They say two different things,” said Pels, who is representing Patterson. 

“They say, one, Veterans Guardian does not assist a client in the preparation, presentation and prosecution of claims for VA benefits. That's not true. That's false. They clearly assist the client, the disabled veteran. The reason they put that in there is because they say, therefore, we're not bound by the the rules that protect all the other veterans who use accredited attorneys.” 

“In another document, they then say, ‘Our team can assist with the process of developing appropriate evidence for your claim.’” Pels said. “So on one document, they say they're not assisting,”  “On the very next document, they say they can assist.”

In a response posted on its website, Veterans Guardian maintains that the attorneys who filed the lawsuit are benefitting from a broken VA and a clogged benefits system.

“Contrary to the baseless claims of wrongdoing, Veterans Guardian provides ethical and transparent assistance that veterans can choose to use to obtain benefits to which they are entitled, but often have difficulty accessing through other available means due to a complicated and bureaucratic process,” the company said on its website. “The named plaintiffs in the suit received an increase in their benefits by choosing to hire Veterans Guardian to help them.”

Today, the VA and other federal agencies are limited in their ability to enforce the law as Congress took away penalties for unaccredited assistance in 2004. Four representatives in the U.S. House have introduced bipartisan legislation to reinstate criminal penalties for unaccredited representatives who charge unauthorized fees while helping veterans file a claim.

“Unfortunately, unaccredited, for-profit companies are scamming veterans of their earned benefits under the guise of helping them, and they must be stopped and held accountable,” Rep. Chris Pappas, Democrat of New Hampshire, said in a statement in February introducing the legislation.

According to the Bureau of Labor Statistics in August 2022, 4.9 million veterans had a service-connected disability. That is 27% of all veterans.

The number of veterans making claims has surged with the passage of the PACT Act, or Promise to Address Comprehensive Toxics Act.

Signed into law in the summer of 2022, the PACT Act expands VA health care and benefits to cover exposure to toxic substances such as Agent Orange and from open-air burn pits used mostly in Afghanistan and Iraq to dispose of everything from trash to munitions and human waste, according to the American Cancer Society. The pits were typically lit by jet fuel.

A year after its passage, the VA said it had distributed more than $1.85 billion in benefits to veterans and their survivors. It had processed 1.65 million claims in the fiscal year, among them 458,659 PACT Act claims. That’s 16% more year-to-date than the previous all-time high, according to the VA.

“For too long, heinous actors have taken advantage of and preyed upon veterans in need of assistance, without consequences, and this practice must end,” Republican Rep. Brian Fitzpatrick of Pennsylvania said.

At the local level, New Jersey passed legislation last month establishing standard requirements that must be followed by anyone being paid for providing assistance or advice on veterans' benefits. The law provides for penalties for violations.

Trauma nurse in Baghdad

Patterson and Otters’ lawsuit, filed in Superior Court of North Carolina in Moore County, accuses Veterans Guardian of charging veterans millions of dollars in fees that are “far in excess of what accredited service providers are authorized to charge by the VA.”

A captain in the Army, Patterson served in Baghdad’s Green Zone as an emergency room trauma nurse at the Ibn Sina Hospital.

A friend and roommate, Captain Maria Ortiz, was killed when the Green Zone was attacked in 2008. Patterson was 27 at the time.

Today she is a nurse practitioner in El Paso and works as a third-party contractor for the VA as a VA disability examiner.

Patterson told NBC through her lawyer that she filed her own disability claim before she left military service. She said she has a variety of service-connected conditions but did not specify what they were.

She found out about Veterans Guardian through another veteran whom she knew. At first she had no plans to sue, she said, but was disappointed in its practices. As she learned more, she realized Veterans Guardian was a predatory company, she said.

“I was stationed overseas and was unaware that there was anyone that could assist me with the process,” she wrote.

The lawsuit alleges that Veterans Guardian tries to disguise the services it provides to bypass VA regulations. Its officers — Scott Chaim Greenblatt, who served for 25 years in the U.S. Army, and William Cooper Taylor, Jr., an officer for 23 years with the U.S. Army — are aware that charging veterans fees to assist in submitting claims by unaccredited organizations is illegal and “so contort the language on their website to make it seem that they are not assisting veterans charging illegal fees,” the lawsuit says.

According to its website, Veterans Guardian can: “make recommendations based on your specific medical history,” “validate” and/or “support your claim,” “identify a list of potential conditions you may not have known about or have been underrated for,” “develop and assemble all of the evidence to support your claim,” including “developing the right medical evidence to support your disability benefits,” “help with documentation,” and “strengthen your claim” by “gather[ing] and present[ing] the information and evidence needed for the VA to make a favorable claim decision.”

The lawsuit notes that in “cease and desist” letters sent by the VA to companies like Veterans Guardian, it states: “[I]t appears that you may be attempting to draw a legal distinction between providing advice to veterans about the information needed to substantiate their claims and filing the claim under your own name. However, this is a distinction without a difference as both types of work are considered to be in furtherance of the preparation and presentation of VA benefit claims, and thus, prohibited without first achieving VA accreditation.”

Pels said he believed a half dozen to a dozen cease and desist letters had been sent to Veterans Guardians and to almost every other company that qualifies as a claims shark.

“There have been all kinds of administrative rulings expressly saying, ‘What you're doing is illegal’ and it just has gone largely ignored,” he said. 

"They’ve been admonished numerous times by numerous authorities,” he said.

A Veterans Guardian brochure printed in April 2022 - and included in the lawsuit - says the company has assisted veterans with at least 29,000 disability claims. That included veterans in Texas, North Carolina, Florida, California and Georgia.

Otters is represented Andrew L. Fitzgerald of Fitzgerald Hanna & Sullivan of Raleigh, North Carolina.

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Circling the alleged ‘claims sharks': Veterans' lawsuit accuses disability claims consultant of breaking federal law

Plaintiffs win class action lawsuit against Bob Dean over Hurricane Ida nursing home evacuations

In advance of the Hurricane Ida, 843 nursing home residents from Orleans, Jefferson, Lafourche, and Terrebonne parishes were packed into a warehouse in Independence.

NEW ORLEANS — After hearing dueling legal arguments from high-powered local plaintiffs’ attorneys, a Jefferson Parish judge ruled Monday in favor of a class-action settlement against nursing home owner Bob Dean stemming from his ill-fated evacuation of 843 of his patients during Hurricane Ida.

Judge Michael Mentz approved the settlement that would divvy up Dean’s insurance coverage – about $15 million – with 22.5 percent of that covering legal fees for Couhig Partners, LLC, the law firm that pushed for the quick resolution.

Early estimates peg the amount going to individual plaintiffs at less than $10,000 each, although the amounts will be higher or lower depending on hardships suffered by each patient.

Several patients died and others had to be hospitalized after they were rescued by state officials from Dean’s warehouse in Tangipahoa. WWL-TV was the first to report on the unsanitary conditions at the shelter, including lack of food, water and bathroom facilities.

The settlement agreement was far from unanimous, with other attorneys led by well-known accident attorney Morris Bart objecting, saying the agreement lets Dean personally off the hook. However, Couhig Partners, LLC, which negotiated the settlement said time is of the essence for the aging plaintiffs.

Don Massey, of the Couhig firm, applauded the judge’s ruling to go forward with the settlement.

“We’re pleased that the judge took into account the important facts of our clients’ age and how much they suffered already and the need to give folks some closure,” Massey said after the hearing. “We’re pleased that the judge recognized the obvious, that Mr. Dean no longer has any assets, he’s under criminal prosecution, he’s under a guardianship.”

But other attorneys with lawsuits believe that Dean has not fully disclosed all of his assets, which had included everything from an antique car collection to several houses across the country.

Well-known New Orleans accident attorney Morris Bart, who represents more than 100 plaintiffs, was among those who unsuccessfully argued to spend more time investigating Dean’s assets.

“This class-action settlement is very unfair,” Bart said outside of the courthouse. “We have fought for our clients and despite the judge’s ruling today, we are going to continue to fight for our clients to get them the compensation they deserve for this horrible travesty that they have been through.”

Bart said his firm will appeal Mentz’s ruling.

“We will 100 percent appeal this,” he said. “This judgment allows Bob Dean to walk away without paying one dollar for his actions. Not one dollar for what he did. We think that’s unfair. We presented evidence that Bob Dean is worth $15 to $20 million dollars and right now today continues to live as a king in his estate in Georgia.”

Mentz acknowledged the different positions taken by the attorneys, but said that after hearings last week, he was not convinced that Dean’s assets exceeded the amount of his debts.

“Every day that the settlement is delayed, the amount of debt against Mr. Dean continues to grow,” Mentz said in his ruling from the bench. “And every day, more plaintiffs die.”

In the end, Mentz said he was faced with a “lose, lose, lose situation” in which Dean has lost his nursing home empire while his patients and their families suffered greatly during the storm and, as a result of Dean’s crumbling fortunes, “they lost the ability to be fully compensated.”

Dean, who lives in Georgia, still faces felony criminal charges in Louisiana, including cruelty to the infirm and Medicaid fraud.

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Plaintiffs win class action lawsuit against Bob Dean over Hurricane Ida nursing home evacuations

Class action lawsuit filed on behalf of families of nursing home residents placed in warehouse

NEW ORLEANS —

A class-action lawsuit has been filed on behalf of families whose loved ones were evacuated to a warehouse in Tangipahoa Parish and left in deplorable conditions.

The lawsuit was filed Monday against Bob Dean, the owner of seven facilities at the center of an investigation.

The lawsuit was filed in Jefferson Parish by Nancy Anderson, on behalf of her mother-in-law, Mrs. Leona Anderson; Joy Manguno, on behalf of her husband, Joseph T. Manguno; Jayme Songy, as curator for Malvina Songy; and Janice Verdin, as a responsible party for Catherine Roussell, according to the lawsuit.

The seven nursing homes evacuated more than 800 residents to Waterbury Cos. warehouse in Tangipahoa Parish ahead of Hurricane Ida, and had their licenses revoked, the Louisiana Department of Health announced Tuesday. The facilities' Medicaid provider agreements have also been terminated, the agency said.

The seven nursing homes are:

• River Palms Nursing and Rehab, Orleans Parish
• South Lafourche Nursing and Rehab, Lafourche Parish
• Maison Orleans Healthcare Center, Orleans Parish
• Park Place Healthcare Nursing Home, Jefferson Parish
• West Jefferson Health Care Center, Jefferson Parish
• Maison De Ville Nursing Home, Terrebonne Parish
• Maison Deville Nursing Home of Harvey, Jefferson Parish

The announcement comes after seven nursing homes residents taken to the Waterbury Cos. warehouse died. State health officials were turned away when they went to inspect the facility the day after the storm, having received reports that conditions inside had worsened.

The lawsuit alleges that Dean denied the defendants their dignity, accusing him of abuse.

The lawsuit seeks damages and a jury trial.

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Class action lawsuit filed on behalf of families of nursing home residents placed in warehouse

New Jersey Nursing Homes Operator Counting on Protocol to Dismiss Lawsuit

By Jane Mundy

 

New Jersey nursing home operator is counting on protocol to dismiss a proposed class action lawsuit claiming poor treatment of residents before and during the COVID-19 pandemic.

 

Lafayette, NJThe Andover nursing homes operator is facing a proposed class action lawsuit claiming poor treatment of residents before and during the COVID-19 pandemic. He argued in federal court to dismiss the nursing home abuse complaint based on state and federal law virus protocol.

Andover Nursing Home Operators

The Andover Subacute Rehabilitation Center I and II are co-owned by Chaim "Mutty" Scheinbaum and Louis Schwartz, according to federal records. NBC News reported (April 2020) that 17 bodies were found in the Andover Subacute Facility I and II morgue. Scheinbaum said the facility was grappling with the pandemic.

In a statement, Scheinbaum said "The owners, administrators and our heroic healthcare staff of nurses and nurse aides have been working relentlessly to contain the virus and safeguard our residents and staff…The health and safety of our residents and staff is our utmost priority and responsibility.“ But Schwartz’s murky history indicates otherwise. He was vice president at Skyline Healthcare, a defunct nursing home chain plagued by allegations of neglect and mismanagement and now involved in at least 12 lawsuits. As well, former employees filed lawsuits accusing the company's owners of stealing their insurance premiums.

Scheinbaum co-owns four facilities that were cited over 25 times for health-related deficiencies during inspections in 2019 and 2020. According to Asbury Park Press, the Andover facilities received average and low marks from federal health care rankings published by the U.S. Centers for Medicare & Medicaid Services.

"Government must limit ownership and management of nursing homes to only those people that demonstrate commitment and capacity to provide the best care possible to residents,” Toby Edelman, senior policy attorney with the nonprofit Center for Medicare Advocacy, told the newspaper.

Proposed Nursing Home Abuse Class Action

Last December Michael Emerson, a resident of Andover since 2019, along with relatives of Albert C. Roberts and Michele Desbiens, filed a willful misconduct complaint against the Andover Subacute Rehabilitation Center I and Andover Subacute Rehabilitation Center II, claiming patients were treated with "a lack of dignity and respect."

Emerson claims he was subjected to "repeated physical and mental abuse." He contracted the coronavirus in March 2020 and says the defendants denied numerous requests by his guardian/attorney-in-fact for his medical records.

Michele Desbiens had been an Andover II resident since 2016. Her son, Paul Desbiens said the facility refused his repeated requests to get his mother treatment for skin cancer in her arm and to have a ureteral stent removed. She contracted the coronavirus in March and died in May, according to the complaint.

Roberts was also an Andover II resident, until he died one month after contracting COVID-19 in April 2020. Brian Roberts, his nephew and administrator of his estate, claimed he only learned of his uncle's death several weeks later, after numerous unsuccessful attempts to reach anyone at the facility for an update, reported Law360.

The plaintiffs pointed out that inspections—since 2015— by Centers for Medicaid & Medicare Services "repeatedly found each of the facilities to be grossly deficient in many aspects" regarding their duty to residents. The CMS' assessment ratings for the facilities are three stars, which is classified as "average," for Andover I, and one star, the lowest possible rating, for Andover II. And in April 2020, a CMS inspection report from April investigating the coronavirus outbreak at Andover II in late March 2020 concluded “the facility was not following infection control safety practices and guidance recommended by CMS and CDC during a COVID-19 pandemic.”

Defendants Relying on COVID-19 Protocol

The Defendants are counting on the Public Readiness and Emergency Preparedness Act  (PREP Act) and the New Jersey COVID-19 immunity law to toss the class action.

 

In a February 10, 2021 ruling (the “Garcia Ruling”) the Central District of California Court held that the PREP Act provides senior living facilities with an exemption from civil liability for actions taken by such facilities to protect facility residents from COVID-19.

According to the National Law Review, “In the Garcia Ruling, the CDCA Court considered whether the PREP Act’s liability immunity extended to, and completely insulates, senior living facilities/communities for imperfect countermeasures taken by such facilities in response to COVID-19. In evaluating the impact of its decision, the CDCA Court noted that the presumption of complete immunity for providers under the PREP Act is a tough one to overcome once a federal court decides to weigh in on the issue.”

The case is Michael Emerson et al. v. Andover Subacute Rehabilitation Center I et al., case number 2:20-cv-20066 in the U.S. District Court for the District of New Jersey.

 

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New Jersey Nursing Homes Operator Counting on Protocol to Dismiss Lawsuit

Hospice care company accused of pressuring employees to make in-person sales calls amid pandemic

Click to Watch Video

Who counts as "essential" in the pandemic?

4:48 A proposed class action lawsuit against the nation's largest hospice care provider is raising questions about who exactly is considered "essential" during the pandemic. The suit claims sales employees at VITAS Healthcare were encouraged to make in-person sales calls to medical facilities, even with strict no-visitor policies. It also claims the sales employees were not an "essential" part of the company's services, and that they were encouraged to practice behavior that put lives at risk in search of boosting profits during the pandemic. Anna Werner reports. Air Date: Jul 28, 2020

Source:
Hospice care company accused of pressuring employees to make in-person sales calls amid pandemic

CLASS ACTION LAWSUIT INVESTIGATION FOR EXPLOITATION OF ELDERLY LOVED ONES BY MASSACHUSETTS PROBATE COURT-APPOINTED OFFICIALS

Belanger Law is investigating a potential class action law suit on behalf of family members whose elderly loved ones have been placed under court appointed guardianship and/or conservatorship by a Probate Court in any county of Massachusetts.

THIS ALERT AFFECTS:

Husbands, wives, adult children and other close relatives of an elderly person declared to be incapacitated by a Probate Court of this Commonwealth who have and/or are enduring a Probate Court appointing a third-party known as a “guardian” and/or “conservator” to make personal and financial decisions for the elder as a “ward” of the Commonwealth.

WHAT’S THE ISSUE:

Appointment of a third-party guardian and/or conservator by a Probate Court judge of the Commonwealth declaring an elder to be incapable of making his or her own personal and financial affairs means the elder has lost ALL right to make these decisions of their own accord-such as: medical decisions, rights of association, where to reside, estate planning, voting, etc.

REDFLAGS OF PROBATE COURT EXPLOITATION OF ELDERLY WARDS:

• • Guardian and/or Conservator disregards prior executed written durable power of attorney, health care proxy, and other advance directive instruments.
  • Guardian and/or Conservator exclude existing family members from decision making.
  • Guardian and/or Conservator refuse to keep family members informed about decisions made.
  • Guardian and/or Conservator refuse to provide financial information about expenses, billing for services, etc.
  • Unusual activity regarding Medicare/Medicaid.
  • Facilitation of elder being prescribed antipsychotic drugs such as: Seroquel, Risperdal, Zyprexa and the like.
  • Guardian and/or Conservator changes a financial instrument ownership to his or her own name.
  • Guardian controlling who can speak with and visit the elder.
  • Guardian taking steps to have elder isolated from family members and friends.
  • Guardian and/or Conservator defaming family members.
  • Guardian and/or Conservator inciting or causing friction amongst family members.
  • Guardian and/or Conservator intimidating family members for questioning or challenging actions of guardian and/or conservator.
  • Guardian removing elder from home to a nursing home or other permanent facility.

WHAT YOU CAN DO ABOUT IT

The purpose of this investigation is to determine the viability of a class action lawsuit to seek redress for exploitation of elders by Probate Court officials on behalf of Massachusetts citizens who have encountered this type of exploitation. To reiterate, this is strictly an investigation because Belanger Law first needs to hear from people who have experienced these issues to determine whether a class action is possible.  Any information provided may help getting a law suit filed—so please reach out and share your story by providing the following information:  (Click to Continue)

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CLASS ACTION LAWSUIT INVESTIGATION FOR EXPLOITATION OF ELDERLY LOVED ONES BY MASSACHUSETTS PROBATE COURT-APPOINTED OFFICIALS

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.

Full Article & Source:
Brookdale Senior Living residents join class action lawsuit

Largest Assisted Living Chain In U.S. Sued For Poor Care Of Elderly

Twenty residents of an assisted living complex in Palm Springs, Calif., missed their medications in a single day because no medical technician was on duty. A woman in a Paso Robles home for seniors pushed her emergency call button after falling in her room and waited 22 hours on the floor with broken bones until staff members responded.

A class-action lawsuit filed last month in a federal district court in Northern California details those incidents and other similar ones, which allegedly occurred in facilities owned by Brookdale Senior Living, the nation’s largest assisted living provider.

The complaint alleges that inadequate staffing, poor worker training and rising fees are part of a “callous and profit-driven approach” that has had “devastating” consequences for Californians living in Brookdale assisted living homes. Residents, it claims, “are left without assistance for hours after falling, they are given the wrong medications, they are denied clean clothing, showers, and nutritious food, and they are left in their own waste for long periods of time.”

Relatives of the seniors involved in the lawsuit declined to comment. The California Assisted Living Association, an industry group, also declined to comment.

Brookdale spokeswoman Heather Hunter said in an email that the lawsuit is “without merit” and the company will defend itself “vigorously.”

Tennessee-based Brookdale, which operates 1,121 facilities serving about 100,000 patients in 47 states, has encountered similar complaints elsewhere in the country. A class-action lawsuit filed earlier this year in federal court in Fort Lauderdale, Fla., alleges that the company does not adequately staff its assisted living facilities and is not providing the care it promises residents.

The plaintiff in that lawsuit, Gloria Runton, claimed the Brookdale home where she lives had assured her she would get personal care services based on an assessment of her individual needs, but that as those needs grew over time, the level of her care did not increase. At the same time, Brookdale nearly tripled her fees, she alleges.

The California lawsuit, believed to be the first class-action claim against an assisted living company under the Americans with Disabilities Act (ADA), was filed on behalf of four people currently residing in assisted living homes that Brookdale operates in the state. If the judge certifies the case as a class-action suit, the outcome could affect all residents of Brookdale assisted living facilities in California.

The lawsuit cites not only the federal disabilities law but also several California statutes, including ones that protect against unfair business practices and financial abuse of elders.

Because the goal is to win the case, good lawyers often file a number of claims, said Stephen Rosenbaum, a lecturer at the University of California-Berkeley’s law school and a directing attorney for California Rural Legal Assistance, which is not involved in the lawsuit. “Whether the ADA is the strongest claim is unclear from a strategic standpoint,” he said.

Rosenbaum said case law has not established exactly how the federal disability law applies to assisted living facilities. It is “ironic” that the attorneys in this case are using the disability law to sue Brookdale, given that the company by definition serves people with some kind of disability, he said.

The California lawsuit alleges that some of Brookdale’s facilities don’t meet federal and state accessibility standards. Some of their bathrooms can’t accommodate wheelchairs, and the company doesn’t have an evacuation or emergency plan for disabled residents, the suit claims. Of the four plaintiffs named in the complaint, three require wheelchairs.

If the case is certified as a class-action lawsuit under the ADA, that would be “big news,” said William Goren, a Decatur, Ga.-based attorney and consultant who helps clients comply with the law. That’s because of the nature of the law itself, he said.

The ADA is designed to address the disabled as individuals whose disabilities can be accommodated in different ways, Goren said. But a class-action lawsuit requires the “class” of plaintiffs to show that they’ve been injured in the same way.

“It’s very, very unusual that you could go in and get a class-action certified under the ADA,” Goren said. “It can happen, but not often.”

In California, Brookdale Senior Living runs 89 homes and serves up to 5,000 patients, offering various combinations of independent living, assisted living and skilled nursing.

In 2014, the company acquired another large assisted living provider, Emeritus, which expanded its presence in California. But the $2.8 billion deal left publicly traded Brookdale with significant staff turnover, declining occupancy and a shaky stock price. A Chinese real estate conglomerate’s recent bid to buy the company reportedly has stalled, creating more uncertainty for Brookdale and the people living in its senior homes.

Residents of Brookdale’s assisted living facilities don’t require the kind of specialized medical care provided in skilled nursing facilities, but they may need help bathing, using the toilet, taking medications, eating or walking. Some residents need walkers or wheelchairs, while others have mild cognitive impairments or dementia. Seniors who require less care and can cook their own meals often choose independent living homes, which Brookdale also operates.

Like many assisted living companies, Brookdale typically charges monthly room and board fees, plus separate charges for additional care, such as help with medications. Its average monthly rate for assisted living, including rent, food and some personal care services, is about $4,000, according to the company’s website.

Both the California and Florida lawsuits claim that to keep its occupancy levels up, Brookdale accepted assisted living residents who might have required higher levels of care, then failed to provide enough staff to meet their needs.

The consequences of leaving residents unsupervised can be severe. In one case, a wheelchair-bound resident of the Brookdale assisted living facility in Elk Grove, Calif., rolled herself out an open door and fell off a curb, breaking her neck, according to an investigation by the California Department of Social Services, which regulates assisted living facilities. The April 2 incident merited a civil penalty, still to be determined, according to the agency’s investigator. That episode was not mentioned in the lawsuit.

Tony Chicotel, a staff attorney at California Advocates for Nursing Home Reform, which is not involved in the suit, said inadequate staffing is a problem at many assisted living facilities.

Assisted living salespeople tell seniors they can meet all their current and future needs, Chicotel said. “But … the facility will only staff based on revenue they’re getting … at least at the big facilities.” The bottom line, he said, is that residents “don’t get the care they need.”

Full Article & Source:
Largest Assisted Living Chain In U.S. Sued For Poor Care Of Elderly