By Bill Wichert

Law360 (September 8, 2020, 9:41 PM EDT) -- Two long-term care facilities were slammed Tuesday with a proposed class action in New Jersey state court alleging they misled consumers about the quality of their services and failed to protect residents and patients from contracting the novel coronavirus, leading to more than seven dozen COVID-19 deaths on their watch.

Plaintiff Brian Roberts says his uncle, Albert C. Roberts, was among at least 94 individuals who died from the disease at the Andover Subacute Rehabilitation Center II and a sister facility after the entities "failed to take reasonable or adequate precautions to protect their residents and/or patients against the potential spread of COVID-19."

Ten days after his uncle died at Andover II, Roberts says, the Andover Police Department was asked on April 11 to deliver 25 body bags to the facilities. The next day, police officers found five "dead bodies being stored in a small holding room in Andover II," Roberts says.

Following "an anonymous tip that a body was being stored in a shed," the officers returned the following day and discovered another 12 bodies in the room, Roberts says. None of those 17 resident deaths were "reported to relevant authorities, family members, authorized representatives, and/or insurance companies prior to the police's discovery," Roberts says.

"It has been widely reported that, at or around that time, many family members and other authorized representatives of residents were unable to get in contact with staff or personnel of the facilities; in many cases, family members went multiple weeks without receiving any update as to the status of their loved ones," according to the complaint.

In an investigation of the COVID-19 outbreak at Andover II, an April 21 inspection report from the Centers for Medicare & Medicaid Services concluded that the facility was "'not following infection control safety practices and guidance recommended by CMS and the Centers for Disease Control and Prevention (CDC), during a COVID-19 pandemic,'" the complaint says.

Among other problems, the CMS report found that the facility did not ensure "'appropriate transmission based precautions were ordered and implemented (immediate isolation from asymptomatic roommates) for suspected COVID-19 residents,'" or that "'staff properly used personal protective equipment (PPE) when caring for COVID-19 positive or COVID-19 suspected residents,'" the complaint says.

The complaint was brought against the two facilities and related parties, including owners Louis Schwartz and Chaim Scheinbaum, asserting violations of state and federal nursing home laws and the New Jersey Consumer Fraud Act.

Roberts, who is the administrator of his uncle's estate, is seeking to represent a class of "residents and/or patients of Andover Subacute Rehabilitation I or Andover Subacute Rehabilitation II, during the applicable statute of limitations period," the complaint says.

In the years before the COVID-19 pandemic, CMS inspections "uncovered a litany of systemic issues" at each facility, the complaint says. One of the repeat findings was that the facilities did not meet "the requisite safety and sanitary standards needed to protect against the spread of infection and communicable disease among its residents and patients," the complaint says.

The agency directed the facilities numerous times to "implement adequate infection prevention and control programs," but they failed to do so, the complaint says.

"Despite the extensive history of regulatory violations and poor assessment ratings, defendants attempted to mislead consumers by holding out the facilities as high-quality, regulatory-compliant facilities with adequate systems and protections in place to provide proper care for its residents," the complaint says.

Roberts, his uncle and the proposed class members chose the facilities based on such misrepresentations, the complaint says.

Roberts' attorney Alina Habba of Habba Madaio & Associates LLP told Law360 on Tuesday in an email, "This is a class action in which families relied on representations made by the Andover Subacute Rehabilitation Centers in selecting the facility to care for their loved ones which were misleading and in violation of several consumer protection statutes. That is the core of this case and we hope to have some accountability by the defendants named."

In a statement provided to Law360 on Tuesday, Scheinbaum said that, in the early days of the outbreak, Andover II "healthcare professionals took proactive steps to prepare for the crisis, ranging from increasing social distancing and separating sick patients, addressing staffing issues, ensuring adequate medication for ill patients, etc."

"Despite all our efforts, the virus made its way into our facility, as it did in the majority of long-term care facilities across New Jersey. We took every possible step to handle this crisis internally while simultaneously making dozens of outreaches to local, state, and federal agencies for help," Scheinbaum said. "Our healthcare professionals and staff worked around the clock providing quality care to our residents in the face of extraordinary challenges."

Over the past several months, Andover II "has made a strong recovery since the height of the pandemic," Scheinbaum said, noting its investments in acquiring adequate PPE, "increased staffing, bonus and hazard pay for our front line staff who worked tirelessly during this national emergency."

On June 2, CMS found that the facility was "in substantial compliance with all applicable standards of care," Scheinbaum said. Andover II also "has not had a single COVID symptomatic resident since May 12, 2020, and the facility remains COVID-free today," he said.

Christopher Porrino of Lowenstein Sandler LLP, a former state attorney general who represents the facilities, said Tuesday in a statement, "As will be demonstrated in court, Andover Subacute acted appropriately, transparently and in the best interest of its patients and staff while managing the unprecedented medical tragedy that hit state-run and private nursing home facilities during the height of the pandemic."

Roberts is represented by Alina Habba of Habba Madaio & Associates LLP and Joseph Lipari of The Sultzer Law Group PC.

Counsel information for the defendants was not immediately available.

The case is Estate of Albert C. Roberts By Brian Roberts, Administrator Ad Prosequendum v. Andover Subacute Rehabilitation Center I et al., case number L-358-20, in the Superior Court of New Jersey, County of Sussex.

--Editing by Abbie Sarfo.

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