Reports of neglect at top nursing home point to failures in state oversight

Frank G. Runyeon
Hebrew Home is a top-rated nursing home in the Bronx.

Reports of neglect at top nursing home point to failures in state oversight

Reports of neglect at top nursing home point to failures in state oversight
May 30, 2016

Editor’s note: This article is the third in a three-part series examining how and why New York’s nursing homes too often fail to keep their residents safe. Read the first part here and the second part here.

Nestled among stately colonial houses and hemmed in by rambling stone walls, the Hebrew Home at Riverdale sits on 32 acres of well-manicured land in the tony Bronx neighborhood of North Riverdale. The nonprofit nursing home holds a coveted 5-star rating from the Centers for Medicare and Medicaid Services and wins perennial mentions in U.S. News and World Report’s list of best nursing homes.

But this idyllic campus is the subject of worrying reports from former residents who say they were neglected and suffered under Hebrew Home doctors and nurses who failed to provide adequate care. City & State examined dozens of lawsuits brought against the nursing home as well as other reports of neglect from former residents, their family members and lawyers.

Since 2010, over two dozen lawsuits were filed against Hebrew Home alleging medical malpractice or neglect that led to serious injuries or wrongful death – a red flag that may call into question its 5-star ratings.

Hebrew Home declined repeated interview requests from City & State.

When asked to explain the allegations of neglect, the nursing home responded in a statement: “We cannot and will not comment on litigation in which the Hebrew Home is a party.” The statement also noted that Hebrew Home has a resident council where complaints are discussed and that administrators do “respond directly to any and all resident and family concerns that warrant attention at that level.”

“The Hebrew Home at Riverdale is proud of its near century history of providing the highest quality of care and compassion to countless older adults and their families,” the statement read.

City & State identified and reviewed 26 lawsuits against Hebrew Home. Most of them are ongoing. Six have been settled – most for undisclosed sums. Just one case was dismissed based on the evidence.

City & State did find that two other large nursing homes in the Bronx had similarly high numbers of neglect lawsuits, but resident advocates and industry representatives differ on what that might indicate. Industry representatives see elder abuse attorneys attacking an easy target in a litigation-friendly borough, while resident advocates see a sign of a systemic problem with neglect.

Industry experts, advocates, and lawyers interviewed by City & State said Hebrew Home may still be one of the best nursing homes in the state – but considering the quality of nursing home care in New York, bad things can happen even at the best facility. Ultimately, they said, the numerous reports of neglect and abuse at Hebrew Home, one of New York’s top-rated nursing homes, is an indication of failed state oversight.

“What we're seeing is that even in a supposedly good nursing home the care is generally not very good,” said Richard Mollot, executive director of The Long Term Care Community Coalition, a leading advocacy group for nursing home residents. “I think it's very significant.”

What’s more, inconsistencies between reports of neglect and official CMS star ratings, as seen at Hebrew Home, undermine the credibility of the nursing home ratings system, advocates argued.

Living in a nursing home “that is purportedly a 5-star facility doesn't mean that you are necessarily safe,” Mollot said. "It's possible to have significant problems and still be highly rated, because of the problems in oversight and monitoring.”

Reports of abuse and neglect in New York nursing homes have spiked over the last few years, as understaffed regulators struggle to function effectively. As City & State previously reported, the quality of New York nursing home care ranks among the worst in the nation, with the state attorney general’s office indicating that the state needs more manpower to police the problem.

A recent state comptroller report noted short-staffing at the state Department of Health as a serious issue that led to delays of up to 6 years in fining nursing homes for violations after investigators identified problems. The state Health Department, which acts as the primary regulator of nursing homes, said the problems were being addressed.

But other research suggests that health officials often fail to identify violations even when they are looking for them.

“In recent years we've seen a significant decrease in the state holding nursing homes accountable,” Mollot said. “I would say we have widespread failure to meet or exceed the minimum standards.”

The state Health Department has laws and enforcement methods at its disposal that allow it to crack down on nursing homes that are abusing or neglecting their residents. But advocates complain that the department has not been taking full advantage of these tools.

LTCCC issued a report last year noting that the state Health Department rarely cites nursing homesfor pressure ulcers. At the same time, the report found that nearly 9 percent of nursing home residents have a pressure ulcer. The sores are a commonly used measure of neglect in nursing homes because they are easily preventable with proper care. In other words, the wounds are an observable indicator of neglect.

"We have 9,000 people in New York nursing homes that have pressure ulcers," Mollot said. “That is insane.”

The report also found that the state Health Department rarely cites nursing homes for staffing shortages even though New York is recognized as having low staffing rates. On average, the department issued just 13 citations for insufficient nursing staff each year to the over 600 nursing homes in the state, according to the report.

In 2005, LTCCC reported that federal inspectors identified more than four times the number of health violations than New York state inspectors did in the same nursing homes.

Still, the state Health Department stressed they have a thorough process to investigate complaints. When it finds deficiencies, nursing homes are given citations and fines.

“DOH is committed to protecting the health and safety of New York’s nursing home residents,” an agency spokesperson said. “Whether or not there is abuse or neglect, any time a facility violates a regulation it must submit a plan of correction that is acceptable to the Department and correct the deficient practice. All complaints and incidents received about nursing homes are reviewed by the Department through the Centralized Complaint Intake Unit with appropriate action taken. In cases where the Department determines a nursing home violates regulation, the Department will issue a citation to the nursing home.”

For advocates, all the evidence points to a broken regulatory system that leaves nursing homes largely unaccountable and elderly residents vulnerable to neglect.

“Essentially, the federal and state agencies were given a powerful tool to carry out their respective mandates to hold providers accountable for protecting residents, which they chose to ignore in favor of activities that were much more amenable to the (nursing home) industry,” said Mollot.

"It is infuriating and heart-breaking," he said.

The state Department of Health is the principal regulatory oversight agency in New York, but the federally-mandated Long Term Care Ombudsman program also plays a role in monitoring abuse and neglect in nursing homes.

Although they have no direct authority over nursing homes, ombudsmen are charged with investigating complaints and seeking to resolve them by assisting residents in reporting complaints to the Health Department, the attorney general’s office, or the police.

Since funding is sparse and the workforce is almost entirely volunteer, there’s only so much they can do.

In New York City, the regional ombudsman program oversees roughly half of the state’s residents in nursing homes – around 50,000 people in 174 nursing homes. If the program were fully funded, there would be 24 paid staff members – instead, they have six. They manage an unpaid volunteer corps of 90 ombudsmen who work an average of 4 to 6 hours a week. But more than half of the city’s nursing homes do not have an ombudsman assigned to check in on them.

In recent years, formal reports from the ombudsmen dropped precipitously across the state because the New York ombudsmen instituted new reporting methods that were far more labor-intensive for the volunteers. A policy change required them to fill out several pages of paperwork, instead of filing a single-page complaint.

“The number of cases or complaints in New York state absolutely plummeted almost to zero – and it wasn't because there weren't complaints,” said Richard Danford, the ombudsman coordinator for New York City. “It was because the methodology they were using was problematic and the volunteer ombudsmen in the field stopped reporting.”

As a result, Danford said, the figures that New York’s Long Term Care Ombudsman submits to the federal ombudsman office are inaccurate.

“I would really caution you – anybody – against using this number as a measure of really anything reliable,” Danford said. “I hate to tell you that.”

There are plans to revise the reporting practices and improve the data in the future, Danford said.

With a state regulator that sparsely cites nursing homes and is slow to fine them, and an ombudsman program that is poorly funded, understaffed, and has largely stopped reporting complaints, nursing home residents and their families told City & State they feel they have no other recourse but to file a lawsuit.

Now, even that avenue may be shutting down.

Many nursing homes include forced arbitration clauses in their admission agreements, in which residents waive their right to a trial when they sign the paperwork admitting them to the facility. Any future dispute must then be mediated by a private contractor. A New York Times investigation last year found that arbitrators tend to favor repeat clients, like nursing homes.

An appellate court decision last summerin the case Friedman v. The Hebrew Home for the Aged at Riverdale denied the Hebrew Home resident a civil trial, because an admission agreement with a forced arbitration clause was signed. Even though New York health law forbids such arbitration clauses, the judge echoed a U.S. Supreme Court ruling that the Federal Arbitration Act supersedes state law. Lawyers are appealing the decision.

Richard Abend, who represents the resident in that case, said that if the decision is upheld, “it will result in the denial of justice to nursing home residents that have been the victims of negligence” and will remove “a powerful incentive” for nursing homes to provide quality nursing care.

The view of the New York City skyline from Hebrew Home's campus. (Frank G. Runyeon) 

Both in court filings and interviews, former residents and their families said chronic understaffing at Hebrew Home was a key problem that led to neglect. They described inattentive or absentee nursing assistants and nurses or doctors who acted too late to identify and treat basic medical conditions that ultimately led to unnecessary suffering, injury or death.

“Ironic, isn't it, that they seem to lavish more care on the trees than on the humans inside?” Samantha Shubert posted online. She told City & State that her mother, Sherlee, then 84 years old, was neglected during a stay at the Hebrew Home’s sub-acute rehabilitation unit in July and August of 2013.

Sherlee Shubert developed pressure ulcers – open wounds resulting from a lack of movement that state regulations say should never happen – while under the nursing home’s care, according to Sherlee and Samantha, her daughter. Shortly after moving in, her mother called her at night weeping in pain, saying the nursing staff were ignoring her cries for help, Shubert said. Although the Hebrew Home is among the most expensive nursing homes in the country – with beds costing between $459 and $872 a day, or up to $318,280 a year, according to data provided to Caregiverlist by Hebrew Home – the family paid an outside nursing agency to come into the nursing home to care for her mother at night. The agency that provided the care for the Shuberts and other families described the practiceas a common way families cope with inadequate care at understaffed nursing homes.

Rebecca Rosenzweig, owner of TrueCare Home Health Care, the nursing agency that cared for Sherlee Shubert said there's more elder abuse by way of neglect in nursing homes. “You can get all sorts of infections because somebody wasn't paying attention,” she said.

Hebrew Home acknowledged that residents hire outside nursing agencies, but stressed that “such personnel are prohibited by law from providing any nursing care, which can only be done by Hebrew Home staff.”

For nearly a year after Sherlee Shubert left Hebrew Home, she remained bedridden because of the pressure sores which doctors feared may require amputation. In at least two other instances reviewed by City & State, a patient did have to have an amputation.

Other reports are even grimmer.

Among the 26 lawsuits reviewed by City & State, 13 plaintiffs alleged Hebrew Home residents died a wrongful death as the result of negligence or medical malpractice.

One court filing describes Concepcion Elias, a 102-year-old woman in “stable condition” who entered Hebrew Home to take advantage of its well-reputed physical therapy services. But after she was placed in a room with no heat in late winter of 2013, she fell ill with a respiratory condition that doctors failed to treat. Her grandson Carlos Elias tried to bring in a space heater, but the staff wouldn’t allow it. At nurses’ request, he brought in blankets and sweaters for his grandmother to insulate her from the large drafty window next to her hospital bed.

But in less than three weeks, Concepcion Elias developed a “temperature” and was pronounced dead of “natural causes,” according to nursing home records and her death certificate.

“They could have said, ‘Listen, take her home,’” Elias said. “I’m not going to live in peace for the rest of my life. It’s my fault – I trusted them.”

Carlos Elias believes the nursing staff and doctors covered up what really happened to his grandmother. After her death, no one at Hebrew Home would speak with him, he said, and the state Health Department failed to discipline the nursing home. Now, he is bringing a lawsuit against the nursing home.

“I am not looking for money,” he said. “I’m looking for justice.”

Although Hebrew Home officials would not comment on pending litigation, they appear to disagree with Carlos Elias on the purpose of neglect lawsuits against nursing homes, according to a copy of presentation slides co-authored by senior officials at Hebrew Home and their law firm, Wilson Elser Moskowitz Edelman & Dicker.

In the May 2013 presentation, titled “Good Practices to Avoid Litigation in Nursing Homes,” an early slide asks: “What’s it all about?” The answer: “MONEY!! NOT JUSTICE.”

Jim Clyne, CEO of LeadingAge, whose organization represents nonprofit New York nursing homes and health care providers, holds a similarly dim view of former residents or their families suing nursing homes.

Plaintiffs lawyers in these cases are capitalizing on aggrieved New Yorkers, he said.

“They are the ambulance chasers of the nursing home world,” Clyne said. “For whatever reason – they would say for good reasons, we would say probably not,” there’s a whole segment of lawyers who “actively solicit business for nursing home residents,” he said.

Clyne said that Bronx County, where Hebrew Home is located, is known to be a good place to find sympathetic jurors for lawsuits. And with potentially thousands of residents cycling through larger nursing homes like Hebrew Home, which has 555 CMS-certified beds, the chances for litigation are increased.

“Listen, no one is justifying if there really is a wrongful death or an injury. That's a bad mistake,” Clyne said, adding that facilities should be held accountable. But, he said, nursing homes are vulnerable to lawsuits because they work with the sick and elderly. As a result, Clyne said, “Everybody knows there's going to be litigation.” According to his logic, these factors help explain why there have been two dozen lawsuits against Hebrew Home since 2010.

But research indicates the number of claims brought against Hebrew Home may be unusually high compared to the national average. Although City & State could not find any comprehensive figures on lawsuits filed against nursing homes in New York, a 2011 study, published in the New England Journal of Medicine, analyzing the relationship between quality of care and negligence litigation in nursing homes, found that between 1998 and 2010 U.S. nursing homes generally received about one claim every two years.

By contrast, Hebrew Home averaged more than four lawsuits every year – or about 8 times the national average for a single nursing home. But even if adjusted for the relatively large size of Hebrew Home, the nursing home still had 43 percent more negligence claims against it than the national average – at least. In computing the national average, the 2011 study included claims settled in arbitration. City & State was unable to include any arbitration claims in its tally of Hebrew Home cases. The nursing home did not provide that information on request.

While researchers who conducted the study said the two dozen lawsuits against Hebrew Home seemed high, they cautioned that there are a variety of factors that may be influencing the number of lawsuits, including the litigation climate, as industry representatives noted.

However, the sheer quantity of claims begs serious questions, researchers said.

“It raises red flags,” said David Stevenson, associate professor of health policy at Vanderbilt University and a co-author on the study. "Part of what I'd want to know is: How is this a 5-star facility, if it has this many allegations of abuse and neglect? And this many litigation claims against it?"

In particular, Stevenson said, it calls into question the nursing home’s 5-star health inspection ratings from the state Health Department. “That’s a little puzzling to me,” he said, noting later that he was “baffled” that a nursing home with that volume of lawsuits against it had not been cited for any deficiencies from those incidents.

Two other Bronx nursing homes, Workmen’s Circle Multicare Center and Kings Harbor Multicare Center, that also have 5-star overall CMS ratings and are comparable in size to Hebrew Home (but charge 30-40 percent less than their top-ranked neighbor) appeared to have similarly high numbers of negligence lawsuits filed against them.

In a statement, Workmen’s Circle touted its 5-star rating and explained that “lawsuits are an inherent part of this industry.” The administrator for Kings Harbor, Alex Stern, said that both the large size of his nursing home and the high turnover of its sub-acute rehabilitation unit help explain the numerous lawsuits. However, he said he takes the lawsuits very seriously. “Even one lawsuit is too many,” Stern said.

CMS data also shows that Hebrew Home only has a 2-star rating for nursing staffing, widely considered the most important indicator of quality care. In fact, the nursing home provided 18 percent fewer nursing hours per resident than the national average, or 3 hours and 24 minutes of nursing care per resident per day. This is based on information the nursing home itself submits to regulators.

“I think that's pretty disturbing that the facility itself is saying that they only have a two-star rating for staffing,” said Deborah Truhowsky, president of the board for LTCCC, the advocacy group for nursing home residents.

A Hebrew Home spokesperson insisted that the nursing home “exceeds government measures,” contending that the CMS rating excluded some staff. The ratings are widely seen as imperfect, but are considered the standard way to compare nursing homes.

“Many Hebrew Home staff members who play critical roles in the quality of life of our residents are not included in government staffing measures,” the spokesperson said. On-site physicians, therapists, “barbers and beauticians, wait staff, wellness center and aquatic therapy personnel, and the dozens of nursing students who are employed by or rotate in the Hebrew Home, are not included in government staffing measures, yet provide significant additional care to our residents.”

Nevertheless, advocates said that it is the direct nursing care that matters most.

“Things like bed sores, falls, and malnutrition potentially can happen as a result of inadequacies in daily caregivers. So not enough (nursing staff) to turn and position people or change (diapers on) people, then that is what's most relevant,” Truhowsky said. “If there's not enough staff for direct care, then residents are going to suffer."

On a gusty hilltop overlooking the Hudson River one afternoon this spring, a public relations officer toured a City & State reporter around the Hebrew Home at Riverdale.

Inside the main complex, she pointed out the Derfner Judaica Museum, an art studio, fish tanks, a friendly therapy dog, and walked through an impressive physical therapy space with a heated pool, ending at the Weinberg Center for Elder Abuse Prevention – touted as “the nation’s first comprehensive shelter for victims of elder abuse.”

For all outward appearances, the residents were lucky to live in what many consider to be New York’s most elite nursing home. But what was most notable about the tour were the stories not told – stories of mistreatment suffered inside the nursing home’s walls, and even stories of those who wandered away unnoticed.

According to eyewitness accounts, police reports, and Health Department records, it appears that since 2010, several residents have left Hebrew Home undetected, which is called elopement. (According to the state Department of Health, elopement occurs when “a resident leaves the Nursing Home building undetected or fails to return from a (preauthorized) pass.”) This can be a serious violation of nursing home regulations, carrying high risks  – after 24 hours, research shows that one in four eloped residents will be found dead.

On Aug. 7, 2010, a 75-year-old female resident at Hebrew Home “left the residence by walking out of the main gate,” according to New York City Police Department records. The woman was not found until the next day, state Health Department officials said. The agency cited Hebrew Home for a violation, but stopped short of issuing a fine. Health officials explained that “a fine was not imposed in this instance because, based on the Department’s investigation, the incident was isolated, the resident was not injured, and the facility had policies and procedures in place to prevent elopements.”

But there have been at least two other cases of nursing home residents who went missing from Hebrew Home since then.

On July 4, 2015, a 71-year-old Hebrew Home resident with dementia named Sandra Dawson, wandered out Hebrew Home’s main gate alone, according to her and her husband, Tom Dawson. Tom was shocked to find her in their Manhattan apartment that afternoon. Because of her dementia diagnosis, Tom said, Hebrew Home had placed Sandra in the Alzheimer’s unit, but then decided to move her into a less secure area. Taking the route she described, she appears to have walked at least two miles along Bronx roads before taking the subway into Manhattan.

After her return to Hebrew Home that night, Tom never reported the incident to management for fear of losing a coveted spot at the facility. That evening, however, he did post about his experience on Yelp, the user review website, to warn others about the facility’s lack of security.

In another incident early this year, on a frigid Feb. 7, New York City Police officials say a 53-year-old Hebrew Home resident was reported missing from the nursing home’s campus – police note only that he was found.

When asked about elopements from the facility, Hebrew Home issued a statement that “there have been no cases of elopement from the Hebrew Home for at least the last five years.”

After City & State provided details of these events, Hebrew Home acknowledged the 2010 elopement but disputed the other incidents in a statement. The nursing home also said that it seeks to balance having a “secure environment” with residents’ right to “leave the campus if they wish” and to “move freely and safely.”

But Hebrew Home refused to elaborate on the specific incidents beyond its statement, which noted it could not legally discuss details regarding the individuals. “However,” it read, “the facts as you have described them are patently incorrect. We reiterate that there have been no elopements from the Hebrew Home in the last five years, which includes these cases.”

Tom and Sandra Dawson disagree, of course – Sandra told Tom she “escaped” more than once.

After the incident, Tom looked into other nursing homes. But for now, he cares for Sandra himself.

“Some of these places I wouldn’t take my dog to,” Tom said. But after visiting about 10 other facilities in the area, he conceded that Hebrew Home was, quite simply, “the best of a bad lot.”

Correction: An earlier version of this post incorrectly said that the patient in the Friedman v. Hebrew Home case no longer lives at the nursing home. In fact, she remains a Hebrew Home resident.


Frank Runyeon
Frank G. Runyeon
is a freelance investigative reporter in New York City.