Prosecutors in California recently brought suit against Brookdale Senior Living, Inc., the largest senior living facility operator in the United States. Based in Tennessee, Brookdale operates ten facilities in the state of California.

The lawsuit against Brookdale accuses the company of ignoring Patient safety rules upon patient discharge. It also alleges that Brookdale provided false information to the Centers for Medicaid and Medicare Services (CMS), resulting in CMS providing Brookdale with falsely inflated quality ratings.

The Claims Against Brookdale Senior Living

The claims against Brookdale fall into two major categories: misinformation regarding patient discharges and inaccuracies reported to CMS. The first category of claims focuses on Brookdale’s activities when patients were transferred to another facility or discharged from a Brookdale facility. Under law, Skilled Nursing Facilities are required to provide patients and families with notice of a transfer or discharge at least 30 days in advance, or “as soon as practicable” in cases like emergencies.

The lawsuit alleges that Brookdale failed to provide this notice to patients who were transferred or discharged. As a result, the lawsuit claims that Brookdale endangered patients’ health and caused undue stress and concern for families that had to adapt quickly to find care for family members transferred or discharged from Brookdale’s care.

Several patients were adversely affected by these transfers or discharges, according to the lawsuit. For instance, one report describes an 80-year-old patient with Alzheimer’s disease, congestive heart failure, and other medical conditions. Brookdale allegedly released the patient without proper notice or a discharge plan and the patient was admitted to a hospital a few days later. Another patient, aged 78, was released without proper notice or a care plan for pneumonia recovery. The patient still had a medication catheter upon release and the family was given no information on how to administer medication or supplemental oxygen, according to the lawsuit.

Second, the lawsuit alleges that Brookdale reported false information to CMS. The information in question directly affects CMS’s five-star rating system, which the agency uses to inform the public about the quality of care at various skilled nursing facilities.

In its case against Brookdale, California claims that the nursing home company overreported its nursing staffing hours to CMS. CMS, in turn, used this information to award Brookdale facilities four- and five-star ratings, which the agency would not have done if the nursing staffing hours had been reported accurately. California alleges that this misrepresentation violates the state’s Unfair Competition Law and its False Advertising Law.

A New Frontier for COVID-19 Claims

Early COVID-19-related claims against nursing homes focused on nursing home responses to the first waves of the disease. These lawsuits often targeted nursing home actions as the pandemic swept through facilities, claiming lives and sickening staff and residents alike.

These early claims, however, represent only the first wave of legal responses against nursing homes, skilled nursing facilities, and other care facilities to arise in the wake of the pandemic.

The case against Brookdale does not focus on the company’s behavior in the context of the pandemic specifically. Rather, it focuses on issues that endanger patients and misinform both patients and families—issues whose consequences may be exacerbated in a pandemic scenario.

Patients and families rely on skilled nursing care, for instance, because skilled nursing facilities provide specialized assistance that the family or patient cannot administer at home. When these facilities fail to follow transfer or discharge rules, they put both patients and their families at risk.

Similarly, patients and families rely on CMS ratings as an unbiased source of information about nursing home care. CMS, in turn, charges care facilities with accurately reporting data about their staffing, facilities, and other features. When information is not reported to CMS accurately, the agency cannot provide a clear comparison to families and patients between various care facilities.

Experts Who May Be Required in the Brookdale Case

Because the claims against Brookdale include cases of improper or inadequate transfer or discharge notice, counsel will likely call upon experts who can discuss what proper transfer or discharge notice and instructions would look like. For example, experts in gerontology, wound care, and other fields may be asked to opine on the likely effects of Brookdale’s actions, as well as on the standard of care for patient discharge. To address the CMS rating aspects of the case, experts on CMS compliance, as well as the agency’s use of collected data to assign ratings, may be involved.

The lawsuit against Brookdale seeks a permanent injunction against the company, as well as a $2,500 civil penalty for each violation of the California Business and Professions code proven at trial.

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