First of its Kind Lawsuit Against Brookdale Senior Living

A lawsuit filing on March 15, 2021, against the Tennessee-based Brookdale Senior Living, Inc (Brookdale) by a coalition of California District and City Attorneys and prior California Attorney General Xavier Becerra sent a shockwave through the senior living industry. The lawsuit alleges ten locations of current and former California Brookdale facilities gave false data to the Centers for Medicare & Medicaid (CMS)to garner higher “star ratings” that CMS provides to help consumers choose a quality nursing facility. Fraudulently increasing a facility’s star rating in several categories can attract more prospective patients and their families. The lawsuit also alleges these facilities did not follow legal discharge procedures that protect patient safety.

Attorney General Becerra stated, “We are holding Brookdale accountable for artificially increasing its profits by cutting corners when transferring or discharging its patients. It lured individuals to its facilities through false promises about providing the highest quality care,” further stating, “Californians have been directly impacted by Brookdale’s behavior. We will ensure that they face consequences for violating the public’s trust.”

The lawsuit is the first of its kind, accusing nursing homes of falsifying data to CMS’s rating system. The star rating method has been in practice for more than a decade to provide facilities with legitimized ratings. However, the ranking takes into account largely unaudited information provided by nursing homes, including

• Staffing– or the number of daily hours of care provided each resident on average by the nursing staff
• Quality measures– known as QMs, the rating takes into account 15 different physical and clinical measures for nursing home residents
• Health inspections– driven by the three most recent outside health inspections and investigations due to complaints

This mix of self-reporting by more than 15,000 nursing homes combined with health inspectors’ on-site examinations does not always yield accurate information. The New York Times reports that the CMS rating system provides a badly distorted depiction of care quality despite years of warnings about system flaws and calls for change. The ease of sleight-of-hand reporting offers a framework where gaming the system to increase profitability has run unabated until now. Today, for-profit US nursing homes account for about 70 percent of the nursing home market sector, with Brookdale being the largest senior living chain.

The advent of the coronavirus pandemic and resulting nursing home deaths is the likely catalyst that calls into question just how reliable the star rating system is. Of the more than 130,000 nursing home resident COVID-19 deaths, analysis shows that people at five-star facilities were about as likely to die as those in a one-star facility. The New York Times further reports that of the more than 3,500 five-star nursing homes, 2,400 were cited with patient abuse, infection control issues, or both.

The alleged rating manipulation by California Brookdale nursing homes assured these facilities of increased profitability despite substandard care for residents. Absent the falsified data provided to CMS, and these Brookdale facilities would probably have received only one or two-star ratings.

The lawsuit seeks an injunction to prevent further unlawful conduct and civil penalties under California law, allowing up to 2,500 dollars per violation. Intentionally falsifying records and misleading the public comes with a heavy price, especially considering the nation’s nursing home death rate in the age of COVID-19. Heather Hunter’s statements as a spokesperson for Brookdale strongly deny the company has “engaged in intentional or fraudulent conduct,” and Brookdale is disappointed in the allegations against the skilled nursing home industry.

As this lawsuit against Brookdale Senior Living continues through the California court system,President Biden’s nominee, California AGXavier Becerra,was confirmed by the Senate to become the Secretary for the US Department of Health and Human Services which oversees CMS. Manipulating CMS star ratings for profit through nursing home bogus data reporting will likely become part of that oversight.