Suits force reform of nursing homes

Home Health Columnist / Guide · Aug 6, 2002

Posted on Sun, Aug. 04, 2002

Six years ago, an assistant U.S. attorney pioneered a legal theory, using a Civil War-era statute, to improve care that affects 4,000 beds in the area.

By Karl Stark

Inquirer Staff Writer

http://www.philly.com/mld/inquirer/business/3797362.htm

The videotape shows an 82-year-old man lying in bed in a fetal position. Gangrene has infected his left foot, and several toes have fallen off. A total of 28 open sores pucker his back, buttocks and legs. A grapefruit-size wound allows viewers to peer inside his right shoulder almost to the bone.

The tape was prime evidence in the first case that Assistant U.S. Attorney David R. Hoffman brought against a group of 18 Philadelphia-area nursing homes in 1996. The case against the Geri-Med chain, which paid a $575,000 fine and was later sold, was a harbinger of things to come.

Over the next six years, Hoffman has become the Eliot Ness of nursing homes. He has brought civil suits against six more poorly performing homes or chains, compelling them to take on experts to monitor quality and improve care. His work has affected more than 4,000 beds in Southeastern Pennsylvania.

Hoffman has pioneered a legal theory that uses a Civil War-era statute to improve the worst nursing homes. His view is if the government is paying for substandard or nonexistent care, the residents are getting ripped off. And the fraud can justify the government's imposing an independent monitor at the home's expense to oversee its improvement.

That approach has won national attention. Advocates say Hoffman has found a way to punish the worst violators and engineer their reform. "His work has really set the standard for the country," said Diane A. Menio, president of National Citizens' Coalition for Nursing Home Reform, who also reviews complaints in Philadelphia as head of the Center for Advocacy for the Rights and Interests of the Elderly.

In the last year, prosecutors using Hoffman's approach have reached settlements against nursing homes in Missouri, Louisiana and Virginia. At least 10 U.S. Attorney Offices have similar investigations under way. "In three to five years, you'll see a lot of cases in a lot of places," added Paul S. Weidenfeld, civil health-care fraud coordinator for the U.S. attorney in New Orleans, who used Hoffman's theory against a Louisiana nursing home last November.

"Anybody that gets federal or state money should think that this may be used against them if they skate too close to the edge," added Richard H. Lee, deputy secretary for quality assurance at the Pennsylvania Department of Health, which supports the prosecutor's efforts.

Hoffman's cases have made him a feared man in the Pennsylvania nursing-home industry. Several executives said the prosecutor's role was unnecessary because the government could already close homes or impose temporary management. The government "already has an enormous stick," said Alan Rosenbloom, president of the Pennsylvania Health Care Association, representing for-profit homes. "It seems unfortunate that there's another layer of government trying to pursue another vehicle of claims."

Other executives complain that U.S. attorneys are inconsistent and slow-moving enforcers; most offices do not bring these cases. And these lawsuits can take three years to develop - long after the nursing home has addressed a problem.

Mark H. Gallant, a lawyer in Philadelphia who has represented homes, lauded Hoffman for his creativity but compared his suits to a nuclear bomb. "People cave rather than resist even if they feel it doesn't apply," he said. "There's a great expense at defending it, and the exposure is enormous."

Hoffman responds that there are no gray areas in the cases he pursues. The homes typically have a long record of problems documented by state inspectors. He looks for reasons why residents are being hospitalized outside the home and whether a large number suffer from dehydration or poor nutrition. Any home that makes these quality checks and acts on them has nothing to fear from his office, Hoffman said.

In recent years, Hoffman has also varied his tough approach, requiring the facility to put more money directly into resident care.

Federal officials say his work does not duplicate the existing system. Prosecutors can deal better with poorly performing chains that sprawl across state boundaries or facilities in "yo-yo compliance," which can vary monthly in quality, said Andrew S. Penn, senior counsel and a quality expert with the U.S. Office of Inspector General, which monitors federal contracts for fraud.

Penn said the Inspector General had adopted Hoffman's tactic of requiring monitors in homes, and currently oversaw 10 monitors in facilities around the country. Hoffman has had nearly that many in the Philadelphia area alone, prompting Penn to quip: "If I have to wind up in a nursing home, I'll go to Philadelphia."

Hoffman is the youngest of three children, raised in Cheltenham, Montgomery County. His brother, Marc, is a retinal surgeon in Pittsburgh, while his oldest sibling, Andrea Hoffman Jelin, supervises adoptions and works with truants as director of Children and Youth Services at Philadelphia Family Court. "We talk about the comparison between child abuse and elder abuse," she said. "It's very similar."

David R. Hoffman, who attended undergraduate and law school at the University of Pittsburgh, was an assistant district attorney in Philadelphia before serving as chief counsel to the state Department of Aging from 1987 to 1993. He joined the U.S. Attorney's Office that year.

Hoffman does not recall how he came up with the idea of using the federal False Claims Act on nursing homes. The law was originally passed in 1863 to catch contractors fleecing the union army. It was updated in 1986, allowing whistle-blowers to share in money the government recouped.

Under civil chief James Sheehan, the U.S. Attorney's Office in Philadelphia has been a national leader in using the act to catch billing fraud. But Hoffman was the first to apply the act to poor nursing home care. Now he is putting that theory to work beyond nursing homes. In August 2001, Hoffman reached a settlement for the first time with a home for the mentally disabled, Elwyn Inc., which paid $400,000 to settle charges of poor care.

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Contact Karl Stark at 215-854-5363 or [email protected]