Analysis

Trump Admin. Stonewalling Attys' Probes Into Elder Abuse

Law360 (May 18, 2018, 5:47 PM EDT) -- The Trump administration is hindering plaintiffs attorneys who investigate abuse and neglect of seniors by heavily redacting nursing home records and charging tens of thousands of dollars to produce such records, according to interviews, government correspondence and newly filed lawsuits.

The administration's efforts, which have triggered a spate of recent legal challenges, represent a sharp break with the policies of the Centers for Medicare & Medicaid Services during the Obama administration, according to plaintiffs lawyers.

"They took data that they'd produced in its entirety free of charge prior to the [2016] election, and then started charging a thousand dollars to search for the data, and then would send us a letter saying they've redacted portions of the data that made the data unusable for our purposes," Jonathan Steele of The Steele Law Firm LLC, who last month filed a lawsuit challenging CMS' disclosure policies, told Law360.

The resistance by the Trump administration to disclosure could make it harder for plaintiffs lawyers to win cases alleging abuse or neglect. Without certain records, attorneys must rely primarily on eyewitness testimony.

The resistance follows CMS' abandonment last year of the Obama administration's effort to give nursing home residents greater litigation rights, as opposed to being forced to arbitrate disputes over quality of care. The federal agency defended its about-face at the time, saying that arbitration agreements "allow for the expeditious resolution of claims without the costs and expense of litigation."

At least four lawsuits have been filed in federal courts since early April accusing CMS of wrongly impeding access to various records. The allegations include improper redactions and charging of excessive fees in violation of the Freedom of Information Act.

Stephen Hornbuckle of The Hornbuckle Firm, who filed suit last month to access notes taken by nursing home inspectors, told Law360 that he presumes the policy change reflects the administration's political prerogatives.

"I suspect it's political. Because the access to these notes is political," Hornbuckle said. "So it is a litigation advantage to the plaintiff to get more information about the case. And they're denying access to [that] now."

Abuse and neglect in the nation's 16,000 nursing homes is a widely recognized problem. Two years ago, the U.S. Department of Justice launched 10 task forces targeting "grossly substandard care" in nursing homes. Last year, a federal watchdog urged CMS to take "immediate action" to address the underreporting of physical and sexual abuse in the nation's nursing homes.

Some of the recent litigation brought by plaintiffs attorneys is aimed at gathering evidence of the administration's motivations. In a lawsuit filed last month, two plaintiffs attorneys — Ernest Tosh of Tosh Law Firm PLLC and David Marks of Marks Balette Giessel & Young PLLC — sought any communications between CMS and third parties concerning the disclosure of nursing home records.

The attorneys want those communications in order to determine "whether CMS' reversal of its prior policy regarding disclosure ... resulted from, or was influenced by, pressure from nursing home industry representatives or others acting at their behest," according to the suit.

Maria LoPiccolo, a CMS spokeswoman, declined to comment Friday, citing the pending litigation.

Also Friday, Law360 sent the lawsuit filed by Tosh and Marks to the American Health Care Association, the main lobbying group for nursing homes, and asked whether the group has advocated for more restrictions on disclosure of nursing home records. 

Carly Moore Sfregola, a spokeswoman for the AHCA, offered a brief reply: "This is the first we have heard of this lawsuit, and our comments to CMS are all public."

It is difficult to say precisely how CMS has changed its policies on disclosure. The extent to which disclosure is permitted or subject to large fees can vary widely, depending on the scope and technical wording of FOIA requests.

That said, it does appear that the administration has become more aggressive about limiting the access. Lesley Ann Clement of Clement & Associates, a firm specializing in elder abuse cases, provided Law360 with several government responses to recent requests for nursing home records, and an uptick in fees was apparent.

For example, in March 2017 — two months into the Trump administration — CMS fulfilled a request for records from one nursing home at a cost of less than $800. But in January 2018, the agency demanded far more money after Clement filed separate requests for records from two nursing homes — $22,000 to fulfill one of the requests and $38,500 to fulfill the other request.

"Literally the cost for them to do this is de minimis. All they have to do is download this stuff," Clement said. "So why all of a sudden did it go from a few hundred dollars to tens of thousands of dollars for the same material?"

Tosh also provided Law360 with a recent response from the agency regarding a FOIA request. The response, which it sent last month, said that CMS would charge almost $53,000 for roughly 2,000 hours of work to fulfill a request for five years of "cost statements" filed by all U.S. nursing homes.

That sort of charge departs dramatically from fees charged during the Obama administration, according to Tosh.

"They were sending it to us for free. ... It was easy to get stuff then," he said. "Now, you can't get anything from them."

For lawyers in some states, hefty fees can make it financially impractical to file suit. In California, for example, noneconomic damages in medical malpractice cases are typically capped at $250,000. The cap can deter lawyers from investing sizable sums of money in cases with inherently uncertain outcomes.

"Who's going to take that risk?" Clement said.

Another lawsuit that Tosh and Marks filed last month accuses CMS of excessively redacting nursing home records. According to the suit, the federal agency in July 2017 demanded $9,000 to produce records, and so Tosh requested a sample of the records to ensure that they would be worth the money.

"The redactions included in the sample provided to Tosh indicate that any records [CMS] does eventually produce will be unlawfully redacted and functionally useless," the lawsuit says.

Steele's lawsuit is aimed at forcing CMS to certify its own estimates of appropriate staffing levels in nursing homes. CMS employees usually cannot be subpoenaed to testify about the accuracy of those estimates, and so certifications are essential to using the estimates as evidence that nursing homes were understaffed when patients suffered harm.

"It's literally the only way we can use this in court cases," Steele said.

As of Friday evening, the agency had not yet filed court responses in any of the four cases. That means attorneys for the time being are left to speculate about any justifications or motivations behind its new restrictions.

"I think there absolutely was some sort of directive that came down ... to cut off the spigot of data," Steele said. "Because this data's getting used effectively to hold these nursing homes responsible for the way that they're treating their residents."

The cases are Johnson v. Centers for Medicare & Medicaid Services, case number 2:18-cv-00590, in the U.S. District Court for the Western District of Washington, The Steele Law Firm LLC v. U.S. Department of Health and Human Services et al., case number 4:18-cv-00275, in the U.S. District Court for the Western District of Missouri, and Tosh et al. v. U.S. Centers for Medicare & Medicaid Services et al., case numbers 1:18-cv-00915 and 1:18-cv-00949, in the U.S. District Court for the District of Columbia.

--Editing by Dipti Coorg.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

The Steele Law Firm, LLC v. United States Department of Health and Human Services et al


Case Number

4:18-cv-00275

Court

Missouri Western

Nature of Suit

Freedom of Information Act

Judge

Gary A. Fenner

Date Filed

April 11, 2018


Case Title

TOSH, et al. v. UNITED STATES CENTERS FOR MEDICARE & MEDICAID SERVICES, et al.


Case Number

1:18-cv-00915

Court

District Of Columbia

Nature of Suit

Freedom of Information Act

Judge

Tanya S. Chutkan

Date Filed

April 18, 2018


Case Title

Johnson v. Centers for Medicare & Medicaid Services


Case Number

2:18-cv-00590

Court

Washington Western

Nature of Suit

Freedom of Information Act

Judge

Robert S. Lasnik

Date Filed

April 20, 2018


Case Title

TOSH et al v. U.S. CENTERS FOR MEDICARE AND MEDICAID SERVICES et al


Case Number

1:18-cv-00949

Court

District Of Columbia

Nature of Suit

Freedom of Information Act

Judge

Trevor N. McFadden

Date Filed

April 23, 2018

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