The 67-bed White River Junction nursing home has been closed since late November 2017, after the Centers for Medicare & Medicaid Services, known as CMS, stopped making payments to Brookside due to its failure to adequately address a series of health and safety violations.
Now the facility’s owners, Brooklyn, N.Y.-based real estate investors and nursing home operators who purchased the property from the Rice family for $3.35 million in 2015, are seeking to speed up a review of their appeal by the Vermont Human Services Board, which consists of two hearing officers who consider appeals of decisions by departments and programs within the Agency of Human Services.
“Brookside and its principals have suffered and continue to incur hundreds of thousands of dollars in damages,” Stuart Serota, the Long Island-based attorney representing Brookside’s owners, wrote in a Dec. 14 letter to Human Services Board officer Jeanne Elias. “Significant legal fees are being incurred.”
Serota’s letter is included in a federal court filing in Burlington. The federal case pertains to a portion of the review by the Human Services Board focused on the length of time — a period of several months — it has taken the state to release documents related to its decision to revoke Brookside’s license to the owners so that they might prepare for the Human Services Board review.
The delay has meant not only a financial cost for the owners, Serota wrote, but also a negative impact on Vermonters. “In addition, many employment jobs have been lost,” Serota wrote. “The services to the many Vermont citizens requiring nursing care goes unfilled.” Efforts to reach Serota by phone and email this week were not successful.
As a result of Brookside’s closing, 49 employees lost their jobs and residents had to find other places, either in New Hampshire or outside of the Upper Valley’s core towns in Vermont, to receive their care. Upper Valley hospital officials have said Brookside’s closing contributes to a difficulty they often have finding appropriate nursing home beds for patients, especially those on Medicaid.
The Brookside facility, which the Rice family opened in the 1960s, now sits empty. In late January, outdoor furniture near a gazebo, where residents would sometimes sit in nicer weather, sat covered in snow.
Brookside’s owners first appealed a decision by the Division of Licensing and Protection within the Department of Disabilities, Aging, and Independent Living (DAIL) to revoke Brookside’s license early last year. That decision was upheld by the department last March, according to the federal court filing.
Subsequently, the owners filed the appeal with the Human Services Board. But the board’s consideration of that appeal has been slow because some of the documents necessary for the review are managed by CMS, a federal agency with which the state has a contract to perform health inspections.
Pamela Cota, licensing chief for the state’s Division of Licensing and Protection, said in a Monday phone interview that DAIL’s release of documents related to Brookside “is complicated by the fact that our work there was federal.”
The release of some federal documents is subject to review by CMS. As a result, the Human Service Board’s review is “a little slower than normal,” Cota said.
The Valley News filed a public records request for DAIL’s written decision revoking Brookside’s license, but the agency declined to release it, asserting that it views the decision as exempt from public inspection under Vermont law because it is “relevant to litigation to which the public agency is a party of record.”
Elias, a member of the board, expressed her frustration with DAIL’s slow response time in an email to Serota and DAIL attorney Laura Gans in December.
“The Department’s choices are to either produce the documents by the established deadline, or risk the imposition of sanctions for failure to comply with discovery, which may include the exclusion of witnesses,” Elias wrote in the email, which is part of the federal court filing.
“This Hearing Officer has made the Department’s discovery obligations abundantly clear for months now,” Elias wrote. “The Department’s failure to obtain whatever CMS review of these documents they believed necessary during the past four months is inexplicable and unacceptable.”
The dispute about Brookside’s state license came as a surprise to Sean Londergan, the state’s long-term care ombudsman. “It’s not something I knew of,” he said.
In the meantime, it remains unclear what might happen at Brookside, even if the Human Services Board comes down on the owners’ side. The decertification from CMS is still in effect, meaning CMS still won’t make payments to Brookside. “That hasn’t changed at all,” said Aaron Smith, a spokesman for the Boston CMS office.
While there is a process the owners could go through to achieve recertification, Smith said, regulators take an “extra-hard look” at facilities that have had compliance issues in the past.
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