Pennsylvania Attorney General Josh Shapiro announced on May 12, 2020, that his office is investigating several nursing homes in the Commonwealth for neglect of patients and residents: “We will hold nursing facilities and caretakers criminally accountable if they fail to properly provide care to our loved ones … we will not tolerate those who mistreat our seniors and break the law.” Shapiro has also launched a public portal for citizens to email reports of neglect in nursing home communities. As is the case in many states, nursing home patients make up the majority of the deaths associated with COVID-19 in Pennsylvania. Just over 2,611 nursing home residents and staff have died from COVID-19 in Pennsylvania, comprising nearly 70 percent of the 3,800 total deaths reported in the Commonwealth as of the date of the press release.
Attorney General Shapiro is not alone in his effort to take a closer look at nursing home facilities and caregivers, even while lobbying groups for health care providers and nursing homes push for broad immunity from coronavirus-related lawsuits. In late April, New York Attorney General Letitia James released a statement saying that her office’s Medicaid Fraud Control Unit continues to investigate allegations of abuse and neglect in nursing homes. James’ office similarly launched a nursing home abuse hotline for residents, families, and members of the public to report alleged complaints at the facilities. Specifically, Attorney General James is investigating a Queens adult care facility that allegedly failed to protect residents from COVID-19 and misled families about its spread. Residents of that same facility are now suing in federal court over similar allegations. State attorneys general are increasingly active on this issue and will be pursuing nursing homes and long-term care facilities through various angles including Medicaid fraud, consumer protection, and false advertising.
New Jersey Attorney General Gurbir Grewal has similarly launched an investigation of nursing homes in the state due to rising levels of deaths and complaints due to COVID-19. Attorney General Grewal’s office will be investigating issues of inadequate staffing and other negligence, and he has stated that the office is considering a number of theories of liability: “It could be anything from consumer fraud to criminal homicide to criminal or civil false claims to regulatory violations.”
While Pennsylvania has taken the lead on the issue of nursing homes and the attorneys general for New York and New Jersey have been vocal on the issues in their states, many other states will be sure to follow.
Attorneys general are also scrutinizing nursing home finance administrations for seizure of stimulus payments intended for residents on Medicaid. On May 15, 2020, the Federal Trade Commission (FTC) issued an alert urging consumers to check with loved ones who receive Medicaid and live in assisted living facilities who have been required to sign their stimulus checks over to the facilities. In such cases, the FTC is urging consumers to file a complaint with their state attorney general. Florida Attorney General Ashley Moody issued a similar alert and asked Florida residents to contact her office immediately if any stimulus payments were withheld by nursing homes or assisted living facilities.
Attorneys general have long targeted nursing homes, with some states, including Pennsylvania and New Mexico, using outside counsel to litigate the facilities for alleged inadequate staffing and false advertising on adequacy of care. Some plaintiffs’ firms have gone so far as to offer various attorneys general to work “pro bono” on various claims and alleged violations during the COVID-19 crisis. While these facilities have always been targets of attorneys general, they will now be under even greater scrutiny. Attorneys general will be anxious to be seen as thought leaders on this issue and might be persuaded to let the trial bar take the reins given the deluge of fraud and abuse occurring as a result of the pandemic.