Plaintiffs claim they were not given their medicines, staff ignored calls for assistance
A new class-action lawsuit brought against the Citadel Salisbury nursing home claims that chronic understaffing endangered the health and safety of its residents. The Citadel Salisbury was the site of the largest COVID-19 outbreak in a North Carolina congregant care facility early in the pandemic.
New owners started running the Citadel Salisbury on Feb. 1, 2020. The lawsuit says that the owners failed to correct existing problems at the facility when they bought it, and some services got worse. Limited liability corporations that hold the license for and operate the nursing home are named as defendants in the federal suit, as are Simcha Hyman and Naftali Zanziper, the LLC’s owners.
The lawsuit was brought on behalf of residents and family members who said residents were not given their medicines, had to cope with ignored calls for assistance and “terrible food” – far from the “five-star” service residents and family members were promised by Accordius Health. Zanziper and Hyman control Accordius Health, a limited liability company that manages the nursing home.
“What the families say is, we understand that in the end our Medicaid dollar can get so much care, but at least be honest with us, be truthful with us,” said John Hughes, an attorney with Wallace & Graham, who brought the suit. The lawsuit claims breach of contract, unfair and deceptive trade practices, breach of fiduciary duty, and infliction of severe emotional distress.
One of the plaintiffs in the Citadel Salisbury litigation, Sybil Rummage, did not regularly receive medications she needed for her heart and for pain and, after she tested positive for COVID-19, had trouble getting the proper medication to treat it, according to court documents.
Court documents filed in a 2020 suit against the facility include quotes from the deposition of a Citadel Salisbury administrator in which she agreed there were times when Rummage did not get the correct doses of her heart medication at the right time.
In February 2020, Rummage’s daughter said that her mother was not getting the right size pull-up brief she needed, according to claims in this year’s suit, and that Rummage saw residents walking around with no undergarments. Rummage developed a bedsore because she was wearing the wrong type and size of undergarment.
Rummage’s care is paid for by Medicaid; facilities and undergarments are covered under Medicaid reimbursement. But Rummage’s daughter had to reach into her own pocket to purchase the right product for her mother, the lawsuit says.
A spotty performance record
In 2008, the federal Centers for Medicare and Medicaid Services established a 5-star rating system that the public can access at www.medicare.gov/care-compare/ to compare nursing homes. The Citadel Salisbury has no rating because it is part of a special program for facilities with “a history of serious quality issues,” that require more frequent inspections.
Citadel Salisbury has been inspected six times since January 2020, according to the investigative news site ProPublica, and was fined twice last year.
Limited liability corporations that Hyman and Zanziper control operate 36 nursing homes in North Carolina. The Citadel Salisbury is on the list of nursing homes that have a history of “severe problems,” according to Medicare. Deficiencies noted in inspection reports dropped from 15 in September 2020 to three in February 2021, but the nursing home remains on the most recent Medicare list of homes that have not improved.
Two other North Carolina nursing homes run by Zanziper and Hyman limited liability companies are on the special focus list or are poised to be added.
Accordius Health at Clemmons is a “special focus facility” that has shown improvement, according to Medicare. The Ivy at Gastonia is a candidate for the list. The Medicare website gives the Gastonia nursing home a 1-star or “much below average” rating.
Most of the nursing homes run by Zanziper and Hyman companies have either one or two stars on the Medicare compare list. Medicare uses reports from health inspections, reports on staffing – nursing hours per resident per day – and quality of resident care to calculate its ratings.
Twenty-seven of those nursing homes were rated with one or two stars for staffing, meaning they were below or far below state or national averages. Six of the nursing homes received three or four stars for staffing.
The lawsuit includes an exhibit using staffing data the company must send to the federal government. Those data show that nurse staffing hours at the Citadel Salisbury met minimum federal requirements on only 10 of 275 days, from April 2020 through December 2020. For 152 days, the nursing home reported no registered nurse work hours.
A shoestring business model?
The nursing home owners’ business model depends on cutting employee expenses, the lawsuit said.
The investment firm that Hyman and Zanziper run known as the Portopiccolo Group was the subject of a Washington Post article last December because it bought more than 20 nursing homes in several states during the pandemic. The article says that while Portopiccolo was buying three North Carolina nursing homes in 2019, it stated in a mortgage loan contract that the company would save $360,000 by lowering employee benefit and insurance costs and another $410,000 by cutting equipment and transportation costs.
The current lawsuit references the mortgage contract.
Michael Phillips of HAT Law, an attorney representing the nursing home defendants, said in an email that the claims about understaffing are wrong, and that lawyers at Wallace & Graham, the Salisbury firm that filed the suit, know it. Further, the claims about cost-cutting in the mortgage contract “have absolutely no merit,” the email said.
Wallace & Graham filed a lawsuit against the nursing home last year that ended in March 2021 with a consent agreement. The nursing home said it had been, and would continue to abide by the nursing home patient “Bill of Rights.”
Wallace & Graham is known for its representing people sickened by asbestos and for suing Smithfield Foods/Murphy-Brown on behalf of residents dealing with odors and noise from industrialized swine farms.
“Through discovery done in their prior, dry-run lawsuit, Plaintiff’s counsel was furnished with written documentation of actual nurse hours worked at the Citadel Salisbury, which clearly showed the facility staffed at a significantly higher rate than what was falsely asserted in the present lawsuit,” said Phillips. “The Plaintiff’s lawyers also deposed witnesses who testified consistent with the written documentation that the Citadel Salisbury appropriately staffed at a significantly higher rate than what has been claimed.”
The court file for the lawsuit brought last year includes documents that are in a manila envelope marked “Confidential – Attorney’s Eyes Only.” Hughes said in an interview that he could not discuss the information contained therein because the company wants it to be confidential.
The lawsuit relies on data the company sends to the federal government, which the company tells the government is accurate, Hughes said. “If that data is inaccurate, probably that company shouldn’t be in business. The government relies on it being accurate, and so did we. If the data is so wrong it makes a difference in our allegations, I think we will be adding another claim.”
Hughes said that as part of the lawsuit brought last year, Accordius Health COO Kim Morrow agreed on the first day of her deposition that the public data on staffing was accurate; but on the second day of the deposition she said it was incomplete, and “there is other data showing how more staffing was occurring and somehow it didn’t get into her data.”
The lawsuit puts responsibility for operations at the Citadel Salisbury on the limited liability companies, rather than the local administrator who is supposed to manage the nursing home. The lawsuit claims that Portopiccolo, Hyman, and Zanziper exclusively control the negotiation of vendor contracts, wages and pay scales, hires of contract labor, accounting, and instructions for the nursing home chain.
“Portopiccolo was directly and materially involved in making and implementing the staffing and supply decisions that gave rise to this action,” the suit says.
In depositions last year, the local administrator did not know what the facility’s budget or that her boss owned the staffing agency, Hughes said.
“She couldn’t say, ‘buy more masks,’” Hughes said. “She had no power to do that.”
Phillips did not address the claims about medications or pre-pandemic supply problems, but said in the email that it was hard for all nursing homes to get supplies during the pandemic.
It was extremely difficult to find “PPE, toilet paper, hand sanitizer, and other supplies for many months after the pandemic was declared,” he wrote. “Finding supplies was just as challenging for nursing homes. When there were shortages, it was never due to cost control concerns.”
A state report on COVID-19 outbreaks from June 23, 2020, said that the Citadel Salisbury had 168 COVID-19 cases, 114 of those among residents, and 18 COVID-19-related resident deaths.
One of the lawsuit plaintiff’s Betty Deal, tested positive for COVID-19 last April. Her daughter-in-law, Donna, had a hard time finding out the test result, according to the suit. Under the new nursing home owners Betty Deal did not receive her medications for Parkinson’s disease on schedule, the lawsuit claims. Deal also went without a hearing aid for weeks because it sat undelivered on a nursing cart, the lawsuit said. On August 2, Donna called the nursing home and was told there was only one certified nursing assistant in the building.
Using a company’s own reports to show chronic understaffing would be a first for a North Carolina lawsuit, Hughes said.
A bigger question is whether for-profit companies should own nursing homes.
“Should this kind of care be managed by a remote central office?” he asked.
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