Nursing homes targeted by the action had argued the attorney general couldn’t do this because:
- Only the state Department of Health had the authority to investigate or pursue litigation regarding staffing levels;
- Her office had hired a private law firm to conduct the investigation – a law firm that had contributed money to the attorney general’s campaign finances.
But now, a seven-judge panel has ruled in favor of Attorney General Kathleen Kane. The judges stated that while it was true the DOH has the authority to enforce regulations and set minimum standards for staffing levels at skilled nursing facilities, they weren’t the only agency with the authority to investigate. While the DOH may be concerned with such matters as it relates to the health, safety and adequacy of each facility, it has no authority or capacity to investigate or correct the consumer marketing or billing practices of these facilities. That is properly within the realm of the state attorney general.
The state attorney general is suing a total of 14 nursing homes in the state for failing to provide basic service to the elderly and vulnerable residents. Kane alleges these facilities deceived consumers with its marketing. Essentially, these centers were promising that elderly loved ones would receive the best possible care, when in fact, these centers were severely short-staffed – and they weren’t doing anything to fix this.
Brochures and other marketing materials indicated residents would be kept clean and comfortable and that they would receive food and water at any time of the day or night. In reality, due to understaffing, patients were regularly thirsty, hungry, dirty and sometimes unable to get anyone to come help them with even basic needs, such as using the bathroom. Incontinent residents were often left in diapers that were soiled and those who couldn’t move were at high risk of bed sores because they weren’t moved every two hours, as required. They weren’t receiving regular showers and they were being awoken sometimes at 5 a.m. or earlier to be washed and dressed for the day. They often weren’t dressed in time for meals, which meant they either wouldn’t be escorted to the dining hall (so they would eat alone) or else they wouldn’t eat at all. Staffers were reportedly directed to falsify records to indicate residents had received certain care and services when in fact they didn’t.
Kane further alleges the nursing homes falsified records documenting patient care. And when state inspectors came to these sites, Kane said, the nursing home operators “willfully deceived” them.
But the nursing home operators fought back. They hired their own legal team and filed a lawsuit against the attorney general’s office, alleging Kane could not file the action and also, her hiring of the private law firm gave her a financial stake in the action.
The state court disagreed, finding the attorney general’s actions were proper because she sought to address the issue of staffing as it relates to improper advertisements, representations and promises to consumers.
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Pa. court rules state AG’s office can use private counsel to pursue consumer protection lawsuits against nursing homes, Jan. 27, 2106, By Jessica Karmasek, Legal Newsline
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