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In March 2012, Attorney General Kamala Harris, the chief law enforcement officer for the people of California, and her Bureau of Medi-Cal Fraud and Elder Abuse (BMFEA) reopened a closed criminal investigation and belatedly charged two licensed nurses, Donna Darlene Palmer and Rebecca LeAn Smith, with felony elder abuse four years after the March 2008 death of a 77-year-old woman, Johnnie Esco, in nursing home El Dorado Care Center in Placerville, California. However, Attorney General Harris and BMFEA, which is headed by its director, Mark Geiger, and its chief of prosecutions, Mark Zahner, filed elder abuse charges against the nurses, but not the nursing home, only after the Sacramento Bee’s embarrassing September 2011 exposé on the the Esco case, on the widespread falsification of patient records in California nursing homes, and on the case’s rejection by the BMFEA and El Dorado County district attorney. The Sacramento Bee’s March 16, 2012 “Nurses Face Felony Charges in Death of Cameron Park Man’s Wife,” by Marjie Lundstrom, chronicled the four-year crusade of the victim’s 81-year-old widower, Don Esco, who “made hundreds of phone calls and personal visits to local, state and federal authorities to get someone held accountable.” (Photo (right) credit: Office of Attorney General)

Attorney General Kamala Harris filed felony elder abuse and manslaughter charges against Sacramento elder caregiver

Attorney General Kamala D. Harris’ Department of Justice (DOJ) filed felony elder abuse and involuntary manslaughter charges last week against the owner of a Sacramento, California, elder care home, alleging that an 88-year-old resident died last year from severely infected, neglected bed sores, The Sacramento Bee reported. (See the February 12, 2013 “Sacramento Elder-Care Facility Operator Faces Manslaughter Charge” and the February 13, 2013 “Sacramento Caregiver Arrested in Death of 88-Year-Old,” by Sacramento Bee investigative reporter Marjie Lundstrom.)

According to a felony arrest warrant issued on February 11, 2013, by Sacramento County Superior Court Judge Laurel D. White, DOJ’s law enforcement division is charging 52-year-old Silvia Cata—the owner of residential care facility Super Home Care, at 341 Bowman Avenue in Sacramento, California—with violations of Penal Code § 368(b)(1) and Penal Code § 192(b). (See Special Agent Tina Khang’s February 11, 2013 31-page declaration in support of the arrest warrant.) Penal Code § 368(b)(1) refers to “willfully caus[ing] or permit[ting] elder/dependent adult abuse,” and Penal Code § 192(b) refers to “involuntary manslaughter – non vehicular,” the warrant states. Judge White set Cata’s bail at $300,000.

In lieu of bail, Cata was in custody at the Sacramento County Jail, The Bee said.

Elder abuse expert says disparity in AG Harris’ elder abuse prosecutions is biased against small-fry criminals, spares corporate-owned nursing homes

Elder Abuse Exposed.com member Marc B. Hankin, a Beverly Hills attorney who drafted California’s Elder Abuse and Dependent Civil Protection Act, wonders why Ms. Cata was in custody and why Judge White set bail so high. “In our legal system, law enforcement officers don’t have the authority to incarcerate a criminal suspect until a jury has convicted the person in a court of law and unless the person is a flight risk. Incarceration severely hampers a defendant’s ability to work effectively with his or her lawyer and prove innocence,” Hankin said. “In DOJ’s 2001 and 2006 exceedingly rare corporate prosecutions against Sun Healthcare Group and Pleasant Care, respectively, nobody went to jail because these large nursing home chains could employ expensive lawyers who could have kept DOJ prosecutors in their offices late at night if the prosecutors had tried to put those corporate defendants in jail. It appears from the Bee’s articles that Cata probably can’t afford private counsel for a protracted legal battle and may have to rely on a grotesquely overloaded public defender and plea to some crime to get out of jail.”

Elderly victim died from sepsis due to neglected bed sores, says Justice Department’s go-to medical consultant, Dr. Kathryn Locatell

In support of the arrest warrant, the Justice Department said the elderly victim, Georgia Holzmeister, who had lived at Cata’s elder care home since 2007, suffered great bodily injury and died on June 23, 2012, of sepsis (a severe, systemic infection that can lead to organ failure and death) due to necrotic, stage IV pressure ulcers on the victim’s buttocks. DOJ also said that Holzmeister, who suffered from dementia, died only as a result of her caregiver’s (Cata’s) “deliberate and complete reckless disregard for performing the essential duties.”

The DOJ based its decision to prosecute Cata partly on the review of Holzmeister’s medical records by DOJ’s Bureau of Medi-Cal Fraud and Elder Abuse (BMFEA) medical consultant and geriatrician Kathryn L. Locatell, M.D., according to court documents filed by DOJ. Dr. Locatell, who works for BMFEA’s Operation Guardians program (email), which sometimes does surprise inspections of neglectful nursing homes, found that Holzmeister’s neglected pressure sores “must have been present for weeks, if not longer” and caused the victim’s sepsis and death, The Bee reported in its February 13, 2013 article.

Deputy Attorney General Steve Muni, who has worked for the BMFEA in Sacramento since about August 2003, believes that Attorney General Harris’ criminal prosecution of Silvia Cata is “the first time the [California] Department of Justice has pursued a manslaughter case against a caregiver in connection with an elderly resident’s death,” The Bee said.

DOJ’s first-ever manslaughter case against elder caregiver follows AG Harris’ plan last year to crack down on elder abuse

After pointing out Governor Jerry Brown’s dismal record as an elder abuse prosecutor while he was California attorney general from 2007 to 2011, the Bee’s articles last week on the Cata prosecution referred to Attorney General Harris’ announcement in November 2012 that she would start cracking down on criminal elder abuse in nursing homes. The Bee covered Harris’ announcement in Marjie Lundstrom’s November 3, 2012 “California Attorney General’s Office to Ramp Up Elder-Abuse Investigations,” which said Harris was planning to aggressively investigate nursing home abuse and build criminal cases against administrators and employees in profit-obsessed nursing homes plagued by systemic elder abuse.

AG Harris’ bogus elder abuse “crackdown” is sham, publicity stunt, says Elder Abuse Exposed.com

Elder Abuse Exposed.com responded to Ms. Lundstrom’s November 3, 2012 article on its blog in the November 19, 2012 “Bogus ‘Crackdown’ on Elder Abuse by California Attorney General Kamala Harris.” In its November 19, 2012 article, Elder Abuse Exposed.com said, “Kamala Harris’ new campaign to ‘crack down’ on nursing home elder abuse, heralded by the Nov. 3, 2012 Sacramento Bee, is nothing but a sham and publicity stunt that will not likely lead to Harris’ first-ever criminal prosecution and conviction of a wealthy, politically connected nursing home.”

Elder Abuse Exposed.com’s statement about Attorney General Harris’ announcement is turning out to be true. Just like California’s previous attorney general, Governor Jerry Brown, Attorney General Harris has an equally dismal record as an elder abuse prosecutor and has also never prosecuted and convicted even one nursing home chain or owner for elder abuse.

AG Kamala Harris files elder abuse charges against “low-hanging fruit,” not wealthy nursing home owners

In fact, Kamala Harris has a history of filing criminal elder abuse charges against a very limited number of lower-level employees, but not wealthy, politically connected nursing home owners, but usually after media coverage of the initial failure to prosecute embarrasses the attorney general. For instance, in March 2012, Kamala Harris’ BMFEA reopened a closed criminal investigation and belatedly charged two licensed nurses, Donna Darlene Palmer and Rebecca LeAn Smith, with felony elder abuse four years after the March 2008 death of a 77-year-old woman, Johnnie Esco, in nursing home El Dorado Care Center in Placerville, California. However, Harris’ BMFEA, which is headed by its director, Mark Geiger, and its chief of prosecutions, Mark L. Zahner, filed elder abuse charges against the nurses, but not the nursing home owner, only after the Sacramento Bee’s embarrassing September 2011 exposé on the Esco case, on the widespread falsification of patient records in California nursing homes, and on the case’s rejection by the BMFEA and El Dorado County district attorney. The Sacramento Bee’s March 16, 2012 “Nurses Face Felony Charges in Death of Cameron Park Man’s Wife,” by Marjie Lundstrom, chronicled the four-year crusade of the victim’s 81-year-old widower, Don Esco, who “made hundreds of phone calls and personal visits to local, state and federal authorities to get someone held accountable.”

Defendant in AG Kamala Harris’ first-ever manslaughter case against elder caregiver is vulnerable small fry

Although Attorney General Harris proudly announced in a February 15, 2013 press release that she “charged a Sacramento-area residential care provider with manslaughter for negligence that directly led to a patient’s death,” a review of her and DOJ’s very first elder abuse and manslaughter prosecution against a victim’s caregiver reveals that Kamala Harris is continuing her predictable pattern of enforcing criminal elder abuse laws against only a very small number of non-wealthy, vulnerable small fries. In the Justice Department’s case against Silvia Cata, The Bee revealed the following about the defendant:

• Silvia Cata owns, not a large nursing home or nursing home chain, but instead a small single-family house serving as a mom-and-pop-operated residential care facility for the elderly (RCFE).

• According to Trulia.com, Silvia Cata’s elder care home is only 1,516 square feet.

• Silvia Cata, her husband, and her daughter are the elder care home’s only providers.

• Although Silvia Cata has a license to provide care to a maximum of six residents, Cata told investigators she usually takes care of only two to three residents at a time.

• Silvia Cata was still in custody at the Sacramento County Jail in lieu of $300,000 bail.

DOJ relies on its medical consultant, Dr. Kathryn Locatell, to write reports justifying criminal prosecutions against non-wealthy easy pickings

The Justice Department’s case against its easy picking, Silvia Cata, also reveals that the Bureau of Medi-Cal Fraud and Elder Abuse is continuing to rely on its go-to medical consultant, Dr. Kathryn Locatell, to review elder abuse victims’ medical records and then prepare forensic medical reports supporting those limited instances when the DOJ decides, for whatever reason, to file criminal charges against a small-fry perpetrator. For instance, in the DOJ’s case against Silvia Cata, DOJ may have decided to prosecute Cata because she is not a wealthy, politically connected corporation with an army of defense attorneys and because Kamala Harris presumably believes what she said about Cata in an email to The Bee. According to the Bee’s February 13, 2013 article, Harris’ email said that “the owner of this facility was trusted with the care of vulnerable patients and she abused that trust in a shocking way” and that “our state’s most vulnerable citizens deserve and need our protection.” Accordingly, the DOJ relied on Dr. Locatell to review Georgia Holzmeister’s medical records and prepare a forensic medical report stating that Silvia Cata’s criminal negligence caused the victim’s pressure sores that were present for some weeks and caused the victim’s deadly sepsis.

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The California Department of Public Health’s (CDPH) Licensing and Certification Program—hardly an aggressive watchdog of wealthy, politically connected nursing homes—issued a class “B” citation and monetary fine in October 2011 to a nursing home that negligently failed to administer oxygen to a fainting patient at a flow rate required by physician orders and the patient’s care plan. At that time, the unfortunate, 88-year-old victim suffered rapidly declining oxygen saturation levels, respiratory arrest, and unexpected death. In its citation, CDPH said, “The above violation had a direct relationship to the health, safety and security of Patient 1.” Despite CDPH’s findings, tantamount to obvious elder neglect, the California Department of Justice’s Bureau of Medi-Cal Fraud and Elder Abuse (BMFEA) chief of prosecutions, Mark Zahner, based his decision to file no criminal charges in the case, not on the assigned BMFEA special agent’s expert opinion, but instead on the different opinion of BMFEA medical consultant Kathryn L. Locatell, M.D. Dr. Locatell shockingly said, “There were no breaches of any applicable standards of care in the events leading to Mr. [patient’s name deleted] death. I see no indication of neglect whatsoever. . . . [W]hether or not oxygen was administered, or administered timely . . . was immaterial.”

Calif. Dept. of Justice’s Bureau of Medi-Cal Fraud and Elder Abuse failed to prosecute Sun Healthcare nursing home deaths, says victim’s daughter

Newport Beach, California, resident Deborah S. Calvert has sent Elder Abuse Exposed.com her personal story and primary source documents detailing the elder abuse and death reports she filed on behalf of her mother, Evelyn Calvert, and other neglected nursing home residents with prosecutors in the California attorney general’s Bureau of Medi-Cal Fraud and Elder Abuse (BMFEA).

In 2003, Deborah Calvert sent elder abuse reports to and spoke on the telephone with Claude W. Vanderwold, who was a deputy attorney general in the BMFEA’s office in Sacramento, California. But it is important to note that Mark Zahner has been BMFEA’s chief of prosecutions in Sacramento from at least sometime in 2003 to the present, 2013.

So this means that 10 years after Deborah Calvert first contacted Mark Zahner’s BMFEA office in Sacramento, critics are still saying that Attorney General Kamala Harris’ BMFEA and Mark Zahner are failing to file criminal elder abuse charges against the principal malefactors. These are the profit-obsessed nursing home owners who are directly responsible for understaffing and the widespread practice of patient records falsification, which predictably lead to systemic and chronic nursing home abuse.

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U.S. Supreme Court Justice Louis D. Brandeis, in the public domain. (Photo credit: Harris & Ewing Collection at the Library of Congress, Prints & Photographs Division, circa 1916)

Nursing homes misappropriated $1.5 billion from taxpayer-funded Medicare in 2009, says new HHS inspector general study

Wealthy, highly profitable nursing homes in California and throughout the United States often cry poor, claiming that taxpayer-funded Medicare and Medicaid payments to facilities are not enough to ensure that they comply with laws regarding staffing and quality of care. But a new study released this month by U.S. Department of Health and Human Services’ (HHS) Office of Inspector General (OIG) says that nursing homes ripped off $1.5 billion from U.S. taxpayers in just 2009 alone by submitting “inaccurate, medically unnecessary, and fraudulent claims” to Medicare.

HHS inspector general’s report is part of larger study of nursing homes’ ongoing Medicare fraud and deficient care

OIG’s new report, the November 2012 Inappropriate Payments to Skilled Nursing Facilities Cost Medicare More than a Billion Dollars in 2009 (OEI-02-09-00200), is the second part in OIG’s series of studies on nursing homes’ ongoing Medicare fraud, rip-off of the U.S. taxpayer, and poor quality of care.

The first part in OIG’s series of studies, the December 2010 Questionable Billing in Skilled Nursing Facilities (OEI-02-09-00202), found that from 2006 to 2008:

• Nursing homes, also known as skilled nursing facilities (SNFs), significantly increased billing for “ultrahigh therapy,” which is the highest and most expensive of five levels of physical, occupational, or speech therapy used to determine patients’ care and resource needs and, therefore, Medicare payments to SNFs.

• SNFs significantly increased billing for higher levels of assistance with activities of daily living (ADLs).

• SNFs billed Medicare at the higher, more profitable levels of therapy and assistance with ADLs, even though patients’ care and resource needs remained about the same.

• For-profit SNFs, especially those owned by large chains, were much more likely than nonprofit or government SNFs to “upcode,” i.e., wrongfully bill Medicare for higher and more expensive levels of therapy and assistance with ADLs.

OIG’s forthcoming study Medicare Requirements for Quality of Care in Skilled Nursing Facilities (OEI-02-09-00201) will examine the degree to which SNFs, which must be in “substantial compliance” with federal quality-of-care laws to receive Medicare payments, actually meet these federal requirements.

Although HHS-OIG’s reports did not name nursing homes, Washington Post said OIG was investigating North American Health Care Inc. for alleged Medicare “upcoding”

Although the Office of Inspector General did not name specific nursing home owners in its 2010 and 2012 studies on nursing homes’ major Medicare fraud, The Washington Post named two nursing home chains in a March 2010 article about OIG’s 2010 study. Besides mentioning Toledo, Ohio-based HCR ManorCare, the March 29, 2010 Washington Post article “Review Heightens Concerns over Medicare Billing,” by Scott Higham and Dan Keating, said that “a separate division” of OIG was investigating Dana Point, California-based North American Health Care Inc. (NAHC), which operates 35 facilities. According to The Post, Service Employees International Union (SEIU), which had been in a union-organizing dispute with NAHC, discovered a “pattern” of Medicare “upcoding” by NAHC. “The SEIU gave results of its NAHC examination to Rep. Pete Stark (D-Calif.), who chairs a House Ways and Means subcommittee that oversees Medicare,” said The Post. “In September, Stark asked the HHS inspector general to investigate, alleging that NAHC ‘may have overbilled Medicare more than $180 million through a system-wide pattern of ‘upcoding.’’”

The Washington Post said that its own analysis of SEIU data on North American Health Care’s Medicare billing “confirmed” SEIU’s and Representative Stark’s “upcoding” allegations. The March 29, 2010 article in The Post said:

• “The Post independently analyzed an updated version of the data and confirmed the pattern.”

• “The Post also found that NAHC operated 21 of the top 30 facilities nationally with the highest percentage of residents billed in the most expensive category.”

• “Across the chain, 64 percent of NAHC patients are billed in the highest category; the national average is 9 percent.”

• “The category covers the most extensive medical care combined with the most intensive rehabilitation.”

John L. Sorensen, North American Health Care’s president and chief executive, responded to “upcoding” allegations in Washington Post

Responding to these serious allegations of Medicare “upcoding,” John L. Sorensen, NAHC’s president and chief executive, said that he was “cooperating with the HHS inspector general’s investigation,” The Washington Post reported. Sorensen explained, according to The Post, that “residents in the highest category are recovering from major surgeries and need specialized care.” But The Post, which did not have access to specific medical records to confirm SEIU’s analysis, said the union’s analysis of the records showed that “NAHC’s residents were no sicker or in greater need of therapy than other nursing home residents.” Sorensen told The Post, “We have honest and forthright business practices in place. . . . We don’t have any need or reason to be doing any kind of upcoding. That would be completely wrong.”

SEIU’s publication of “upcoding” allegations against North American Health Care coincided with Washington Post’s exposé

When The Washington Post published its March 29, 2010 exposé on the OIG’s investigation of North American Health Care, SEIU published the following about its Medicare “upcoding” allegations against North American Health Care:

• SEIU’s March 29, 2010 press release “Major California Nursing Home Chain Allegedly Falsified Records, Overbilled Medicare $100 Million”

• SEIU’s March 30, 2010 “The Largest Medicare Fraud Ever in the Nursing Home Industry?” by Kate Thomas

• SEIU’s webpage entitled “North American Health Care (NAHC) May Be Falsifying Patient Records and Overcharging Medicare by Tens of Millions of Dollars a Year in What Could Be the Largest Nursing Home Fraud Ever”

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Sacramento Superior Court Judge Gerrit W. Wood condoned misconduct in trust administration case, says letter from decedent’s daughter

Jamie Lamborn, whose victimized elderly father set up a living trust to distribute assets after his and his wife’s deaths, has authorized Elder Abuse Exposed.com to publish in its victim stories section a scathing letter that Ms. Lamborn wrote to Sacramento County Superior Court Judge Gerrit W. Wood.

In her February 9, 2011 letter, Ms. Lamborn told Judge Wood, who was handling the trust administration case in the William R. Ridgeway Family Relations Courthouse in Sacramento, California, that he had exhibited blatant bias against her and toward an unethical and inept professional fiduciary acting as trustee of the living trust. Ms. Lamborn, who lives in the Sacramento area, said to Judge Wood that he had essentially condoned abusive and corrupt practices by the professional fiduciary and an unethical, less-than-honest attorney associated with the fiduciary. Ms. Lamborn also said that Judge Wood had failed to make fair rulings according to the wishes of the creators of the living trust.

“I have pointed out the numerous unethical and inexcusable acts committed by Carolyn Young as trustee, with attached supporting documentation, in my past filings,” Ms. Lamborn wrote Judge Wood. “You have allowed and ordered Young to stay in place,” she continued, “ignoring the facts I presented and the wishes of the creators of this trust, Mr. and Mrs. Clarence Johnson.”

Ms. Lamborn ended her letter to Judge Wood by saying:

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Mahatma Gandhi, humanitarian and civil rights leader (1869–1948), in the public domain. (Photo credit: Unknown author via Wikimedia Commons, 1940s)

UCSF study on smoke-free laws and effect on hospitalizations, deaths shows Governor Brown’s veto of nursing home smoking ban is not in public interest

Just a week after we said in our October 23, 2012 article, “Governor Jerry Brown Vetoes Smoking Ban inside California Nursing Homes,” that Governor Brown was disregarding evidence in the U.S. surgeon general’s 2006 report on the deadly health effects of secondhand smoke exposure and was continuing to disregard the rights of vulnerable nursing home residents, a new University of California, San Francisco study on smoke-free laws shows that Governor Brown’s September 27, 2012 veto of Assembly Bill 217 was not in the interest of public health.

The new study, which appears in the American Heart Association journal Circulation (October 30, 2012), is called “Association between Smoke-Free Legislation and Hospitalizations for Cardiac, Cerebrovascular, and Respiratory Diseases: A Meta-Analysis.” The authors of the study were Crystal E. Tan, M.S., and Stanton A. Glantz, Ph.D., who is a professor of medicine and the director of the Center for Tobacco Control Research and Education at UCSF.

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