News10NBC Investigates: Complaints filed with NYS after News10NBC investigation into nursing home lawsuits |

News10NBC Investigates: Complaints filed with NYS after News10NBC investigation into nursing home lawsuits

Berkeley Brean
Updated: February 13, 2020 11:26 PM
Created: February 13, 2020 08:22 PM

ROCHESTER, N.Y. (WHEC) — In the last month, News10NBC exposed lawsuits against family and friends of nursing home residents.

Then we uncovered the practice of pressuring families to sign nursing home admission agreements. 

Now we can show you the official complaints to the state prompted, in part, by our stories. 

"When I saw your story online, I thought it would be worth exploring the idea that I think it's even worse than the lawsuits," attorney Timothy Pellittiere said. 

Pellittiere is a lawyer in Penfield who deals with estates, wills and elder law. 

He contacted me after my first story with Barbara Robinson. She was hit with a lawsuit saying she owed $21,000 to her late friend's nursing home, Monroe Community Hospital. 

Why did Robinson get sued? 

She signed her friend's nursing home admission agreement which included a provision that made her the "financial agent."

So when Monroe Community Hospital didn't get paid, they sued Robinson. 

"I feel betrayed," Robinson said. "I feel terribly stressed."

Robinson is not alone.

In the past two years, News10NBC found 79 lawsuits filed in Monroe County by nursing homes against family members and friends of nursing homes residents.

One of them is a client of Pellittere.

And now, a week after our initial story, he has filed a complaint with the New York State Department of Health. 

Pellittiere points to the admission agreement his client's family signed. It says their loved one's assets will not be "transferred, diverted, gifted or loaned."

Pellittiere says that's against the law. 

"There is a state and federal law that says these nursing facilities cannot require a person to promise not to transfer assets, a promise not to apply for Medicaid as a condition of admission," he said. 

He also filed a complaint with the New York State Attorney General's Medicaid fraud unit. 

He says his client's family paid privately for nine months. Then Medicaid started paying. The Medicaid reimbursement rate is significantly less. 

Pellittiere says the nursing home sued the family for the difference. 

Chief Investigative Reporter Berkeley Brean: "The nursing home wants the difference between what they paid when it was paid privately and what they're getting reimbursed through Medicaid."

Timothy Pellittiere, Esq., Pellittiere & Jonsson, PLLC: "That's correct."

Brean: "And that's how much money in this client's case? Thousands?"

Pellittiere: "$85,000."

Pellittiere says state law says a Medicaid payment is considered "payment in full."

The law firm suing Pellittiere's client is Underberg and Kessler and attorney David Tang. 

In a statement, Tang outlined what he called the facts of the case:

"This is a breach of contract matter. In this case, the resident's power of attorney (POA) completed a financial application and signed a fiscal agent agreement. 

The POA signed a document saying she understood the nursing home was relying on the financial information disclosed in the application, as part of the nursing home's review for purposes of determining admission. The financial application disclosed over $795,000 available for care. The fiscal agent agreed to not transfer or divert the resident's assets to other people and also promised that the resident's assets would be used to pay for the resident's care.  However, some or all of the $795,000 in assets were transferred, after the resident was admitted to the nursing home. 

The fiscal agent's attorney told my office that the fiscal agent had not transferred the assets. We have repeatedly asked for documentary proof of this but the attorney for the fiscal agent refuses to provide it.  We need to have a chance to review the documents.  

The facts in this case are: Prior to admission, the nursing home was told there were resources of more than $795,000 available to pay for the resident's care. The fiscal agent said she had access to the assets, and she signed a contract in which she promised to not transfer, use or divert assets; and then there was a transfer of the assets.  The nursing home is suing for breach of contract.  

Only the fiscal agent, who agreed to not transfer resident's assets, is named in the lawsuit.  The resident continues to receive high-quality care and life-enriching programs at the nursing home.

The transfer of assets -- after a promise by the fiscal agent that there would be no transfers -- is the reason why there is a breach of contract action against the fiscal agent."

Our work shows Underberg and Kessler is responsible for filing the 79 lawsuits we identified. Two other local law firms, Harris Beach and Pullano and Farrow, filed about a dozen over the same period of time. 

In an interview two weeks ago, David Tang said nursing homes are under financial stress. 

"There is tremendous pressure on the nursing homes right now," Tang said. "The cost of care continues to rise and reimbursement rates don't come close to covering the actual cost of care."

"Everybody who goes into a nursing home is told you can't transfer assets. You can't do this. You're going to be responsible. And it scares people," Pellittiere said. 

Pellittiere filed a motion to dismiss the case Wednesday. He asked that we not identify his client or the nursing home. The nursing home is in Monroe County. 

I checked the state's online database of lawsuits. I only found one lawsuit filed against a relative or friend since our first investigation aired on Jan. 30. And it was filed on Jan. 31. 

For answers to questions regarding nursing home lawsuits, watch our web extra.

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