throbber
Case 2:20-cv-20066-JXN-AME Document 55 Filed 08/19/24 Page 1 of 34 PageID: 1170
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
`
`
`
`MICHAEL EMERSON, ESTATE OF ALBERT
`C. ROBERTS BY BRIAN ROBERTS,
`ADMINISTRATOR AD PROSEQUENDUM,
`AND ESTATE OF MICHELE DESBIENS BY
`PAUL DESBIENS, ADMINISTRATOR AD
`PROSEQUENDUM, individually on behalf of
`themselves and all others similarly situated,
`
`
`
`
`
`
`
`
`Plaintiffs,
`
`
`
`CIVIL ACTION NO.: 2:20-cv-20066
`
`SECOND AMENDED CLASS
`ACTION COMPLAINT
`
`
`
`
`
`
`
`
`
`
`
`v.
`
`ANDOVER SUBACUTE REHABILITATION
`CENTER
`I,
`ANDOVER
`SUBACUTE
`REHABILITATION CENTER II, ALTITUDE
`INVESTMENTS,
`LTD,
`ALLIANCE
`HEALTHCARE, HEALTHCARE SERVICES
`GROUP, JOHN DOES 1 through 100, said names
`being fictitious and unknown persons, and ABC
`CORPORATIONS 1 through 100, said names
`being fictious and unknown entities,
`
`
`
`
`
`
`
`
`
`Defendants.
`
`This action is commenced by Plaintiffs, MICHAEL EMERSON, ESTATE OF ALBERT
`
`C. ROBERTS BY BRIAN ROBERTS, ADMINISTRATOR AD PROSEQUENDUM, and
`
`ESTATE OF MICHELE DESBIENS BY PAUL DESBIENS, ADMINISTRATOR AD
`
`PROSEQUENDUM (collectively, “Plaintiffs”) individually and on behalf of all others similarly
`
`situated, by and through their undersigned attorneys, alleges as follows:
`
`PARTIES
`
`1.
`
`Michael Emerson (“Emerson”) is a resident of the state of New Jersey and, at all
`
`relevant times herein, a resident patient at Andover Subacute Rehabilitation Center I and
`
`Andover Subacute Rehabilitation Center II.
`
`
`
`1
`
`

`

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`2.
`
`Brian Roberts (“B. Roberts”) is a resident of the State of New Jersey and the
`
`nephew of decedent, Albert C. Roberts (“A. Roberts”), who was, at all relevant times herein, a
`
`resident patient at Andover Subacute Rehabilitation Center II. B. Roberts is the administrator ad
`
`prosquendum for A. Robert’s estate.
`
`3.
`
`Paul Desbiens (“P. Desbiens”) is a resident of the State of New Jersey and the son
`
`of decedent, Michele Desbiens, (“M. Desbiens”), who was, at all relevant times herein, a resident
`
`patient at Andover Subacute Rehabilitation Center I and Andover Subacute Rehabilitation Center
`
`II. P. Desbiens is the administrator ad prosquendum for M. Desbien’s estate.
`
`4.
`
`The plaintiffs, Michael Emerson, Estate of Albert C. Roberts by Brian Roberts,
`
`administrator ad prosequendum, and Estate of Michele Desbiens by Paul Desbiens, administrator
`
`ad prosequendum (collectively, “Plaintiffs”), bring this action on behalf of themselves and/or
`
`their respective estates and on behalf of all others similarly situated (the “Class”) including
`
`decedents, administrators, next of kin, heirs, etc.
`
`5.
`
`Defendant, Andover Subacute Rehabilitation Center I (“Andover I”) is a New
`
`Jersey domiciled long-term care facility doing business at 1 Obrien Lane, Lafayette Township,
`
`New Jersey 07848.
`
`6.
`
`Defendant Andover I is a “nursing facility” within the meaning of 42 U.S.C. §
`
`1396r and obligated to comply with requirements set forth under the 1987 Omnibus
`
`Reconciliation Act (OBRA), the Federal Nursing Home Reform Amendments, 42 U.S.C. §
`
`1396r, and implementing regulations thereunder.
`
`7.
`
`Defendant, Andover Subacute Rehabilitation Center II (“Andover II”) was a New
`
`Jersey domiciled long-term care facility doing business at 99 Mulford Road, Lafayette
`
`Township, New Jersey 07848.
`
`
`
`2
`
`

`

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`8.
`
`Defendant Andover II was a “nursing facility” within the meaning of 42 U.S.C. §
`
`1396r and obligated to comply with requirements set forth under the 1987 Omnibus
`
`Reconciliation Act (OBRA), the Federal Nursing Home Reform Amendments, 42 U.S.C. §
`
`1396r, and implementing regulations thereunder.
`
`9.
`
`Defendant, Altitude Investments, LTD (“Altitude”), is an entity doing busines in
`
`the State of New Jersey and the owner of Andover I and Andover II and/or the lessor of the
`
`building where the facilities are located, with a business address of 2201 Main Street, Evanston,
`
`Illinois 60202.
`
`10.
`
`Defendant, Alliance Healthcare (“Alliance”), is a New Jersey business entity
`
`which oversees and/or manages the operations of Andover I and Andover II, with a business
`
`address of 1382 Lanes Mill Road, Lakewood, New Jersey 08701.
`
`11.
`
`Defendant, Healthcare Services Group (“HSG”), is a New Jersey business entity
`
`with a business address of 261 Terhune Drive, Wayne, New Jersey 07470.
`
`12.
`
`Defendants, John Does 1 through 100, are individuals whose identities are
`
`unknown to the plaintiffs, including, but not limited to, licensed health care professionals,
`
`employees, agents, administrators, aides, officers, managers, sanitation workers, orderlies,
`
`security officers and/or other duly authorized individuals who caused, contributed to, or are
`
`otherwise liable for the damages which are the subject of this action.
`
`13.
`
`Defendants, ABC Corporations 1 through 100, are corporate entities are currently
`
`unknown to the plaintiffs, including, but not limited to, healthcare facilities, management
`
`companies, owners, operators and/or other entities that caused, contributed to, or are otherwise
`
`liable for the damages which are the subject of this action.
`
`
`
`3
`
`

`

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`14.
`
`Upon information and belief, at all times material hereto, Defendants received
`
`Medicare funding from the federal government Medicaid funding from the state of New Jersey,
`
`and as such were acting under color of state law.
`
`JURISDICTION AND VENUE
`
`15.
`
`This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. §
`
`1332 of the Class Action Fairness Act of 2005 because: (1) there are 100 or more proposed Class
`
`Members, (ii) the aggregate amount in controversy exceeds $5,000,000.00, exclusive of interest
`
`and costs, and (iii) there is minimal diversity because a substantial number of Plaintiff and
`
`Defendants are citizens of different states.
`
`16.
`
`This Court has personal jurisdiction over Defendants because they are registered
`
`with the Secretary of State to do business in the State of New Jersey, and the wrongful acts
`
`alleged in this Complaint were committed in the State of New Jersey.
`
`17.
`
`Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) because at
`
`least one Plaintiff resides in this District and a substantial part of the events or omissions giving
`
`rise to the Plaintiffs’ claims occurred in this District.
`
`FACTS COMMON TO ALL COUNTS
`
`As set forth below, Defendants consistently provided their residents with an
`
`18.
`
`inadequate, improper, and substandard level of care caused them to suffer serious physical harm
`
`and emotional distress. As a direct result, Defendants wrongfully deprived Plaintiffs and
`
`members of the Class of their rights under the Nursing Home Reform Act, 42 U.S.C. § 1396r et
`
`seq., and regulations promulgated thereunder.
`
`Plaintiffs Were Harmed by Defendants’ Failure to bide by Federal and State Nursing
`
`Home Regulations
`
`
`
`4
`
`

`

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`19.
`
`The facts relevant to Plaintiff, Emerson, are as follows:
`
`a. Since 2019, Emerson was, at different times, a resident of both Andover I
`
`and Andover II. At the present time, Emerson is a resident of Andover II.
`
`b. In or around early March 2020, Emerson sustained multiple bruises and a
`
`black eye while in the sole custody of an Andover II staff member. The
`
`physical injuries suffered by Emerson had no relation whatsoever to COVID-
`
`19 but were instead caused by the negligent training and negligent
`
`supervision on the part of Andover II. If properly trained and supervised,
`
`those entrusted with the care and supervision of Emerson would not have
`
`allowed him to sustain multiple bruises and a black eye.
`
`c. In or around late March 2020, Emerson contracted COVID-19 while under
`
`the sole custody and care of Defendants Emerson contracted COVID-19
`
`because Defendants failed to employ any available measures, strategies or
`
`tactics to stop the spread of COVID-19.
`
`d. Thereafter, Emerson’s guardian ad litem and attorney-in-fact, Mary Jernick
`
`(“Jernick”), has made numerous attempts to obtain Emerson’s medical
`
`records but Defendants have consistently denied her requests.
`
`20.
`
`Andover I and Andover II have violated Emerson’s rights as set forth under
`
`N.J.S.A. 30:13-5, including, but not limited to, N.J.S.A. 30:15-5(j) by denying him a “safe and
`
`decent living environment and considerate and respectful care that recognizes the dignity and
`
`individuality of the resident…”
`
`
`
`5
`
`

`

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`21.
`
`Andover I and Andover II have violated Emerson’s rights as set forth under
`
`N.J.A.C. 8:39-4.1, including, but not limited to, his right to “be free from physical and mental
`
`abuse and/or neglect,” under N.J.A.C. 8:39-4.1(a)(5).
`
`22.
`
`The facts relevant to Plaintiff, M. Desbiens, are as follows:
`
`a. Beginning in 2016, M. Desbiens was a resident of Andover II.
`
`b. In early 2018, M. Desbiens began displaying symptoms of skin cancer on her
`
`left arm, including a large and visible growth protruding from her skin.
`
`c. At or around that time, M. Desbien’s legal guardian and attorney-in-fact, P.
`
`Desbiens, made multiple requests that Defendants tend to M. Desbien’s
`
`condition and administer proper treatment.
`
`d. Despite the apparent serious and life-threating nature of the ailment,
`
`Defendants refused P. Desbien’s requests and continued to neglect M.
`
`Desbien’s injuries.
`
`e. In early 2020, a staff member advised P. Desbiens that M. Desbien’s
`
`condition had worsened to such a degree that any treatment would require
`
`amputation of her left arm.
`
`f. In or around late 2018, M. Desbiens underwent an unrelated surgical
`
`procedure at an outpatient facility and had a ureteral stent inserted into her
`
`body.
`
`g. The surgeon instructed Defendants to have M. Desbiens return within six
`
`months to have the ureteral stent removed.
`
`
`
`6
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`

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`h. In or around mid-2019, P. Desbiens made numerous requests that Defendants
`
`bring M. Desbiens to the out-patient facility to have the ureteral stent
`
`removed.
`
`i. Despite P. Desbiens insistence, Defendants refused to take any action to have
`
`the ureteral stent removed.
`
`j. P. Desbiens was advised by a staff member of Andover II that the stent
`
`would only need to be removed if it became infected.
`
`k. In or around late May 2020, Desbiens contracted COVID-19 while under the
`
`sole custody and care of Defendants. Emerson contracted COVID-19
`
`because Defendants failed to employ any available measures, strategies or
`
`tactics to stop the spread of COVID-19.
`
`l. M. Desbiens died on May 11, 2020 due to complications from COVID-19.
`
`At the time of her death, M. Desbien’ skin cancer remained entirely
`
`untreated, and the ureteral stent remained in her body.
`
`23.
`
`Andover I and Andover II violated Desbiens’ rights as set forth under N.J.S.A.
`
`30:13-5, including, but not limited to, her right to “participate in the planning of her total care
`
`and medical treatment” and her right to “a safe and decent living environment and considerate
`
`and respectful care that recognizes the dignity and individuality of the resident, including the
`
`right to expect and receive appropriate assessment, management and treatment of pain . . .”.
`
`24.
`
`Andover I and Andover II violated Desbiens’s rights as set forth under N.J.A.C.
`
`8:39-4.1, including, but not limited to, her right to “participate, to the fullest extent that the
`
`resident is able, in planning his or her own medical treatment and care,” under N.J.A.C. 8:39-
`
`4.1(a)(3) and to “live in safe, decent, and clean conditions in a nursing home that does not admit
`
`
`
`7
`
`

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`more residents than it can safely accommodate while providing adequate nursing care,” under
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`N.J.A.C. 8:39-4.1(a)(11).
`
`25.
`
`The facts relevant to Plaintiff, A. Roberts, are as follows:
`
`a. At all relevant times herein, A. Roberts was a resident of Andover II.
`
`b. In or around March 2020, Roberts contracted COVID-19 while in the sole
`
`custody and care of Defendants. Roberts contracted COVID-19 because
`
`Defendants failed to employ any available measures, strategies or tactics to
`
`stop the spread of COVID-19.
`
`c. On April 1, 2020, A. Roberts died while in Defendants’ care.
`
`d. After A. Roberts’ death, his nephew, B. Roberts, made numerous attempts to
`
`contact Andover II in an attempt to receive an update on A. Roberts’ status
`
`but was unable to reach anyone at the facility. B. Roberts was not informed
`
`of A. Roberts’ death until several weeks later.
`
`Defendants’ Breaches Were Widespread Throughout the Class Period
`
`26.
`
`The harm suffered by Plaintiffs as a direct result of Defendants’ failure to comply
`
`with the applicable federal and state nursing home regulations, taken as a whole, is consistent
`
`with, and representative of, the harms suffered by the members of the Class as evidenced by the
`
`results of numerous inspections by the Department of Health and Human Services, Centers for
`
`Medicare & Medicaid Services (“CMS”).
`
`27.
`
`Since 2015, CMS which is responsible for overseeing, monitoring, and reporting
`
`long-term care facilities’ compliance with federal and state nursing home regulations, has
`
`performed numerous inspections of Andover I and Andover II (collectively, the “Facilities”) and
`
`has repeatedly found each of the Facilities to be grossly deficient in many aspects.
`
`
`
`8
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`

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`28.
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`In assessing Andover I, CMS has performed fourteen (14) inspections since 2015
`
`and has noted its failure to comply to comply with at least twenty-five (25) distinct federal and
`
`state regulations on at least thirty-two (32) separate occasions.
`
`29.
`
`In particular, within this five-year period, Andover I was found to have failed to
`
`comply with numerous provisions of the Requirements for States and Long-Term Care Facilities
`
`established by CMS and set forth in 42 C.F.R. § 483 (the “Federal Regulations”), including
`
`without limitation:
`
`a. 42 C.F.R. § 483.10(i)(1) (Andover I’s duty to provide a safe, clean
`
`comfortable and homelike environment);
`
`b. 42 C.F.R. § 483.151 (Andover I’s duty to provide immediate access to any
`
`resident by any representative of the State);
`
`c. 42 C.F.R. § 483.20(g) (Andover I’s duty to provide assessments that
`
`accurately reflect the residents’ status);
`
`d. 42 C.F.R. § 483.21(a)(1)2 (Andover I’s duty to develop and implement a
`
`baseline care plan for each resident);
`
`e. 42 C.F.R. § 483.21(b) (Andover I’s duty to develop and implement a baseline
`
`care plan for each resident that includes measurable objectives and
`
`timeframes
`
`to meet a resident's medical, nursing, and mental and
`
`psychosocial needs that are identified in the comprehensive assessment);
`
`f. 42 C.F.R. § 483.25 (Andover I’s obligation to ensure that the members of the
`
`Class and Plaintiffs received “treatment and care in accordance with
`
`
`1 Citation issued by CMS under prior version of statute, C.F.R. § 483.10(e).
`2 Citation issued by CMS under prior version of statute, C.F.R. § 483.20(k)(3)(i).
`9
`
`
`
`

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`professional standards of practice, the comprehensive person-centered care
`
`plan, and the resident’s choices”);
`
`g. 42 C.F.R. § 483.25(d) (Andover I’s obligation to ensure that the resident
`
`environment remains as free of accident hazards as is possible and that each
`
`resident receive adequate supervision to prevent accidents);
`
`h. 42 C.F.R. § 483.30 (Andover I’s duty to ensure that each resident remain
`
`under the care of a physician, and that each physician must provide orders for
`
`the resident’s immediate care and needs);
`
`i. 42 C.F.R. § 483.60(d)(5)3 (Andover I’s obligation to provide appealing
`
`options of similar nutritive value to residents who choose not to eat food that
`
`is initially served or who request a different meal choice);
`
`j. 42 C.F.R. § 483.60(i)4 (Andover I’s duty to procure food from sources
`
`approved or considered satisfactory by federal, state, or local authorities);
`
`k. 42 C.F.R. § 483.45 (Andover I’s obligation to provide routine and emergency
`
`drugs and biologicals to its residents);
`
`l. 42 C.F.R. § 483.60(a);
`
`m. 42 C.F.R. § 483.60(i); and
`
`n. 42 (C.F.R. § 483.60(d)5 (Andover I’s duty to provide each resident with food
`
`prepared by methods that conserve nutritive value, flavor, appearance, and
`
`that meets individual needs)
`
`30.
`
`In addition, during the same period, Andover I was cited for its failure to comply
`
`with the Standards for Licensure of Long-Term Care Facilities established by the New Jersey
`
`3 Citation issued by CMS under prior version of statute, C.F.R. § 483.35(d).
`4 Citations issued by CMS under prior version of statute, C.F.R. § 483.35(i); violations cited on 8/25/15 and 9/27/16.
`5 Violations cited on 8/25/15, 9/27/16, 10/28/17 and 1/19/19.
`10
`
`
`
`

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`Department of Health and Senior Services, as set forth in N.J.A.C. § 8:39 (the “State
`
`Regulations”) on numerous occasions, including without limitation:
`
`a. N.J.A.C. § 8:39-4.1(a)(12) (Andover I’s obligation to treat residents with
`
`“courtesy, consideration, and respect for their dignity and individuality”);
`
`b. N.J.A.C. § 8:39-11.1 (Andover I’s duty to ensure that nursing staff assess the
`
`nursing needs of each resident and provide each resident with an
`
`interdisciplinary care plan);
`
`c. N.J.A.C. § 8:39-11.26 (Andover I’s obligation to ensure that a physician
`
`provide a comprehensive assessment for each resident and implement care
`
`plans, as enumerated in N.J.A.C. § 8:39-11.2(a)-(i);
`
`d. N.J.A.C. § 8:39-17.2(g)7 (Andover I’s duty to ensure that all food service
`
`facilities operate with safe food handling practices);
`
`e. N.J.A.C. § 8:39-17.4(a) (Andover I’s duty to ensure that all residents receive
`
`a diet which corresponds to the physician’s order, is served in the proper
`
`consistency, and provides nutrients and calories based upon current
`
`recommended dietary allowances of the National Academy of Sciences);
`
`f. N.J.A.C. § 8:39-21.1(d) (Andover 1’s obligation to ensure that clean laundry
`
`shall be protected from contamination during processing, storage, and
`
`transportation within Andover I’s facility);
`
`g. N.J.A.C. § 8:39-21.2 (Andover I’s duty to properly maintain its laundry
`
`facilities);
`
`
`6 Violations cited on 1/18/19 and 1/27/20.
`7 Violations cited on 8/24/15 and 10/27/17.
`
`
`
`11
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`

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`h. N.J.A.C. 8:39-27.18 (Andover I’s duty to ensure that each resident receives
`
`all care and services needed to maintain the highest practicable level of
`
`physical emotional and social well-being);
`
`i. N.J.A.C. § 8:39-29.2(d) (Andover I’s obligation to comply with mandatory
`
`drug administration policies and procedures, as enumerated in N.J.A.C. §
`
`8:39-29.2(a)-(d);
`
`j. N.J.A.C. § 8:39-31.4(a) (Andover I’s duty to provide and maintain a safe,
`
`clean, and orderly environment for residents); and
`
`k. N.J.A.C. § 8:39-31.2(e) (Andover I’s obligation to ensure that the facility
`
`shall be kept in good repair and maintained without harm or jeopardy to
`
`residents).
`
`31.
`
`As for Andover II, CMS has performed twenty-eight (28) inspections since 2015
`
`and has cited the facility for fifty (50) regulatory violations. In addition, CMS graded the “scope
`
`and severity” of Andover II’s deficiencies as level ‘K,’ the second-worst rating on a scale of A-
`
`L, which is indicative of a “pattern” of deficiencies that creates an “[i]mmediate jeopardy to
`
`resident health or safety.”
`
`32. Within said five-year period, Andover II was similarly found to have numerous,
`
`repeated violations of the Federal Regulations, including without limitation:
`
`a. 42 C.F.R. § 483.10(g)(14)9 (Andover II’s duty to notify the resident, and the
`
`resident’s representative, when there is a significant change in the resident’s
`
`physical, mental, or psychosocial status, as enumerated in C.F.R. §
`
`483.10(g)(14)(i)-(iv);
`
`
`8 Violations cited on 8/24/15 and 1/31/19.
`9 Violations cited on 11/26/19 and 4/21/20.
`
`
`
`12
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`

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`b. C.F.R. § 483.10(g)(15)10 (Andover II’s obligation to disclose in its admission
`
`agreement its physical configuration and must specify the policies that apply
`
`to room changes between its different locations);
`
`c. C.F.R. § 483.10(i)11 (Andover II’s duty to provide each resident with a safe,
`
`clean, comfortable, and homelike environment);
`
`d. C.F.R. § 483.10(i)(7) (Andover II’s obligation to maintain comfortable sound
`
`levels within each resident’s environment);
`
`e. C.F.R. § 483.12(c) (Andover II’s duty to ensure that all alleged violations
`
`involving abuse, neglect, exploitation or mistreatment, including injuries of
`
`unknown source and misappropriation of resident property, are reported
`
`immediately);
`
`f. C.F.R. § 483.12(c)(2) (Andover II’s duty to have evidence that all alleged
`
`violations are thoroughly investigated);
`
`g. C.F.R. § 483.12(c)(3) (Andover II’s obligation to prevent further potential
`
`abuse, neglect, exploitation, or mistreatment while the investigation is in
`
`progress);
`
`h. C.F.R. § 483.12(c)(4) (Andover II’s duty to report the results of all
`
`investigations to the administrator or his or her designated representative and
`
`to other officials within 5 working days of the incident);
`
`i. C.F.R. § 483.10(i)12 (Andover II’s duty to establish and implement an
`
`admissions policy consistent with the requirements set forth in C.F.R. §
`
`483.15(a)-(e));
`
`
`10 Violations cited on 11/26/19 and 4/21/20.
`11 Violations cited on 11/26/19, 3/5/20, and 4/21/20.
`
`
`
`13
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`j. C.F.R. § 483.20(f)(1) (Andover II’s duty to encode data for each resident
`
`following the completion of a resident’s assessment, as enumerated in §
`
`483.20(f)(1)(i)-(vi));
`
`k. C.F.R. § 483.20(f)(2) (Andover II’s duty to ensure that it is capable of
`
`transmitting to the CMS System information for each resident contained in
`
`the MDS in a format that conforms to standard record layouts and data
`
`dictionaries, and that passes standardized edits defined by CMS and the
`
`State);
`
`l. C.F.R. § 483.20(f)(3) (Andover II’s obligation to electronically transmit
`
`encoded, accurate, and complete MDS data to the CMS System);
`
`m. 42 C.F.R. § 483.20(f)(4) (Andover II’s duty to transmit data in the format
`
`specified by CMS or, for a State which has an alternate RAI approved by
`
`CMS, in the format specified by the State and approved by CMS);
`
`n. C.F.R. § 483.20(g)13 (Andover II’s duty to ensure that each assessment
`
`generated accurate reflect the resident’s status);
`
`o. C.F.R. § 483.20(h)14 (Andover II’s duty to ensure that a registered nurse
`
`conduct each assessment with the appropriate participation of health
`
`professionals);
`
`p. C.F.R. § 483.20(i)15 (Andover II’s duty to ensure that registered nurses sign
`
`and certify assessments when completed);
`
`12 Citation issued by CMS under prior version of statute, C.F.R. § 483.15(i).
`13 Violations cited on 9/28/15 and 11/29/16.
`14 Violations cited on 9/28/15 and 11/29/16.
`15 Violations cited on 9/28/15 and 11/29/16.
`
`
`
`14
`
`
`
`

`

`Case 2:20-cv-20066-JXN-AME Document 55 Filed 08/19/24 Page 15 of 34 PageID: 1184
`
`q. C.F.R. § 483.20(j)16 (Andover II is subject to a civil money penalty, as staff
`
`certified material and false statements in a resident assessment, and/or caused
`
`another individual to certify a material and false statement in a resident
`
`assessment);
`
`r. C.F.R. § 483.20(l) (Andover II’s duty to ensure that a notice of transfer or
`
`discharge must be made by the facility at least 30 days before the resident is
`
`transferred or discharged);
`
`s. C.F.R. § 483.21(b);
`
`t. C.F.R. § 483.25(b)(3)17;
`
`u. C.F.R. § 483.25(d)(1)18;
`
`v. C.F.R. § 483.25(d)(2)19;
`
`w. C.F.R. § 483.25(i);
`
`x. C.F.R. § 483.45(f);
`
`y. 42 C.F.R. § 483.45(f)(1);
`
`z. 42 C.F.R. § 483.60(b);
`
`aa. 42 C.F.R. § 483.73(a);
`
`bb. 42 C.F.R. § 483.80(a)(1)20;
`
`cc. 42 C.F.R. § 483.80(a)(2)21;
`
`dd. 42 C.F.R. § 483.80(a)(4)22;
`
`ee. 42 C.F.R.§ 483.80(e)23; and
`
`
`16 Violations cited on 9/28/15 and 11/29/16.
`17 Violations cited on 11/14/17, 10/29/18, 11/26/19, 3/5/20, and 3/13/20.
`18 Violations cited on 11/14/17 and 1/30/19.
`19 Violations cited on 11/14/17 and 1/30/19.
`20 Violations cited on 10/29/18, 3/5/20, and 4/19/20.
`21 Violations cited on 10/29/18, 3/5/20, and 4/19/20
`22 Violations cited on 10/29/18, 3/5/20, and 4/19/20
`
`
`
`15
`
`

`

`Case 2:20-cv-20066-JXN-AME Document 55 Filed 08/19/24 Page 16 of 34 PageID: 1185
`
`ff. 42 C.F.R. § 483.80(f)24.
`
`33.
`
`In addition, during the same period, Andover II was consistently cited for its
`
`repeated failures to comply with the State Regulations, including without limitation:
`
`a. N.J.A.C. § 8:39-4.1(a)(5) (Andover II’s duty to ensure that residents be free
`
`from physical and mental abuse and/or neglect N.J.A.C. § 8:39-4.1(a)(5;
`
`b. ); N.J.A.C. § 8:39-11.2(b)25 (Andover II’s duty to ensure that each physician
`
`or advanced practice nurse order shall be executed by the nursing, dietary,
`
`social work, activities, rehabilitation or pharmacy service, as appropriate in
`
`accordance with professional standards of practice);
`
`c. N.J.A.C. § 8:39-11.2(e) (Andover II’s obligation
`
`to ensure
`
`that a
`
`comprehensive assessment shall be completed for each resident within 14
`
`days of admission);
`
`d. N.J.A.C. § 8:39-19.4(a)(1)26 (Andover II’s obligation to develop and
`
`implement written policies and procedures regarding infection procedures,
`
`which include Guidelines for handwashing and hospital environmental
`
`control);
`
`e. N.J.A.C. § 8:39-19.4(a)(2)27 (Andover II’s obligation to develop and
`
`implement written policies and procedures regarding infection prevention
`
`and control procedures which include guidelines for isolation precautions in
`
`hospitals);
`
`23 Violations cited on 10/29/18, 3/5/20, and 4/19/20
`24 Violations cited on 10/29/18, 3/5/20, and 4/19/20
`25 Violations cited on 11/26/19 and 3/5/20.
`26 Violations cited on 3/5/20 and 4/19/20.
`27 Violations cited on 3/5/20 and 4/19/20.
`
`
`
`16
`
`
`
`

`

`Case 2:20-cv-20066-JXN-AME Document 55 Filed 08/19/24 Page 17 of 34 PageID: 1186
`
`f. N.J.A.C. § 8:39-19.4(a)(3) (Andover II’s obligation to develop and
`
`implement written policies and procedures regarding infection prevention
`
`and control procedures which include prevention and control of tuberculosis
`
`in facilities providing long-term care to the elderly);
`
`g. N.J.A.C. § 8:39-19.4(a)(4) (Andover II’s obligation to develop and
`
`implement written policies and procedures regarding infection prevention
`
`and control procedures which include prevention of nosocomial pneumonia);
`
`h. N.J.A.C. § 8:39-19.4(a)(5) (Andover II’s obligation to develop and
`
`implement written policies and procedures regarding infection prevention
`
`and control procedures which include prevention of catheter associated
`
`urinary tract infections);
`
`i. N.J.A.C. § 8:39-19.4(a)(6) (Andover II’s obligation to develop and
`
`implement written policies and procedures regarding infection prevention
`
`and control procedures which include prevention of intravascular infections);
`
`j. N.J.A.C. § 8:39-19.4(6)(n) (Andover II’s duty to ensure that personnel wash
`
`their hands with soap and warm water or use other effective hand sanitation
`
`techniques immediately prior to contact with residents);
`
`k. N.J.A.C. § 8:39-19.4(1); N.J.A.C. § 8:39-25.2(b)(1)28 (Andover II’s duty to
`
`provide nursing staff on the basis of the total number of residents multiplied
`
`by 2.5 hours/day);
`
`l. N.J.A.C. § 8:39-25.2(b)(2)29 )30 (Andover II’s duty to provide nursing staff
`
`on the basis of the total number of residents receiving each service that is
`
`listed under N.J.A.C. § 8:39-25.2(b)(2));
`
`28 Violations cited on 5/20/15 and 10/29/18.
`
`
`
`17
`
`

`

`Case 2:20-cv-20066-JXN-AME Document 55 Filed 08/19/24 Page 18 of 34 PageID: 1187
`
`m. N.J.A.C. § 8:39-27.1(a)31 (Andover II’s duty to ensure that each resident
`
`receives all care and services needed to maintain the highest practicable level
`
`of physical emotional and social well-being);
`
`n. N.J.A.C. § 8:39-29.2(a) (Andover II’s duty to ensure that the pharmacy and
`
`therapeutics committee establish and enforce procedures for documenting
`
`drug administrations);
`
`o. N.J.A.C. § 8:39-29.2(d) (Andover II’s duty to have a system to accurately
`
`identify recipients before any drug is administered.);
`
`p. N.J.A.C. § 8:39-29.7(c) (Andover II’s duty to store and maintain controlled
`
`substances in accordance with the Controlled Dangerous Substances Act and
`
`all other federal and state laws);
`
`q. N.J.A.C. § 8:39-31.2(a) (Andover II’s duty to ensure that personnel engaged
`
`in general maintenance activities receive orientation upon employment and
`
`education or training in principles of asepsis, cross-infection control, and safe
`
`practices);
`
`r. N.J.A.C. § 8:39-31.2(e)32 (Andover II’s duty to ensure that the facility be
`
`kept in good repair and maintained without harm or jeopardy to residents);
`
`s. N.J.A.C. § 8:39-31.4(a)33 (Andover II’s duty to provide and maintain a safe,
`
`clean, and orderly environment for residents); and
`
`29 Violations cited on 5/20/15 and 10/29/18.
`30 Violations cited on 5/20/15 and 10/29/18.
`31 Violations cited on 9/28/15, 1/7/16, 11/14/17, 10/29/18, 11/26/19, 3/5/20, 3/13/20, and 4/19/20.
`32 Violations cited on 11/29/16, 11/14/17, 3/1/19, and 3/5/20.
`33 Violations cited on 11/26/19 and 3/5/20.
`
`
`
`18
`
`
`
`

`

`Case 2:20-cv-20066-JXN-AME Document 55 Filed 08/19/24 Page 19 of 34 PageID: 1188
`
`t. N.J.A.C. § 8:39-35.2(d)(3); and N.J.A.C. § 8:39-35.2(d)(3) (Andover II’s
`
`duty to ensure that each resident’s medical record contains complete transfer
`
`information from the sending facility).
`
`34.
`
`In addition, during that time, CMS, which provides assessment ratings for long-
`
`term care facilities, rated on a scale of one to five (five being the highest score), provided scores
`
`for each of the Facilities. Andover I was given a ‘three star’ rating, which is classified as
`
`“average.” Andover II was given a ‘one star’ rating, the lowest possible score, which is classified
`
`as “much below average.”
`
`
`
`35.
`
`Further, a CMS inspection report dated April 21, 2020, investigating the COVID-
`
`19 outbreak at Andover II in late March 2020, found that the facility was “not following
`
`infection control safety practices and guidance recommended by CMS and the Centers for
`
`Disease Control and Prevention (CDC), during a COVID-19 pandemic.”
`
`36.
`
`In particular, the report found that “the facility failed to ensure: 1) appropriate
`
`transmission based precautions were ordered and implemented (immediate isolation from
`
`asymptomatic roommates) for suspected COVID-19 residents…2) a system of surveillance to
`
`prevent the spread of infection (screening, tracking, monitoring and/or reporting of fever and
`
`other signs/symptoms of COVID-19)…3) staff properly used personal protective equipment
`
`(PPE) when caring for COVID-19 positive or COVID-19 suspected residents, 4) staff were
`
`properly trained to use the infrared forehead thermometer on staff, visitors and residents, 5)
`
`implementation of hand washing practices consistent with CDC (Center for Disease Control and
`
`Prevention) guidelines to reduce the spread of infections and prevent cross-contamination during
`
`
`
`19
`
`

`

`Case 2:20-cv-20066-JXN-AME Document 55 Filed 08/19/24 Page 20 of 34 PageID: 1189
`
`the COVID-19 pandemic, and 6) posting of contact/droplet precaution signage throughout the
`
`facility.”
`
`
`
`Defendants Deceived Consumers Regarding the Quality of the Facilities
`
`37.
`
`Despite the extensive history of regulatory violations and poor assessm

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