As Montefiore faces federal fines of $316,980 stemming from falsified COVID-19 testing in October 2020, a criminal investigation is underway, the Cleveland Jewish News has learned.
The Ohio Attorney General’s Office has started the criminal investigation, according to a motion filed April 23 in a civil lawsuit in Cuyahoga County Court of Common Pleas. The target or targets of the investigation were not identified. Three other state agencies are also investigating the falsification of testing that occurred on Oct. 13, 2020. They are Ohio Department of Health, Ohio Board of Nursing and Ohio Board of Long-Term Services & Supports.
Menorah Park President and CEO James Newbrough Jr. identified Tina Renee King, then-director of nursing, and Marie Gelle, then-assistant director of nursing, as responsible for the falsification. He also said that Ariel Hyman, then-administrator, “failed to oversee the situation appropriately,” in an Oct. 29, 2020 email to residents and their families. Hyman, King and Gelle were all three terminated that day.
“We will not be making any comments regarding ongoing litigation or investigations,” Beth Silver, director of public relations and marketing at Menorah Park, wrote in an April 28 email to the CJN.
Montefiore will not appeal, according to Silver.
“This is part of due process with the Ohio Department of Health and Centers for Medicare and Medicaid Services,” Silver wrote. “In this case, the penalties are based on what we self-reported last October involving testing and three individuals. While we do not agree that we deserved the citation, we accept the decision and we are not appealing it. We are focused on moving forward.”Attorney Robert C. Pivonka of Rolf Goffman Martin Lang LLP in Pepper Pike is defending Montefiore and its affiliate, Menorah Park, and individual defendants, in a civil lawsuit filed by the former two top nurses at Montefiore, who are plaintiffs in the lawsuit.
“Each of these agencies has initiated and is conducting its own investigations,” Pivonka wrote.
Thirty-three cases of COVID-19 were identified on a single unit at Montefiore in October 2020. Montefiore and individual defendants are additionally facing the first of what is expected to be a series of wrongful death lawsuits following the testing falsification by the former nurses. Marsha Mockabee, whose husband James F. Mockabee had been a resident of Montefiore and died of COVID-19 Oct. 22, 2020, filed suit Dec. 15, 2020. Defendants in that lawsuit included Montefiore, the Montefiore Foundation, the Montefiore Home, the Montefiore Housing Corp., Menorah Park Foundation, Hyman, King and Gelle.
In their Dec. 9, 2020, lawsuit, King and Gelle allege wrongful termination, tortious interference with their business relationships and defamation of character. Named defendants in King and Gelle’s lawsuit include the Montefiore Home, Menorah Park Center for Senior Living Bet Moshav Zekenim Hadati, Newbrough, Richard Schwalberg, COO of Menorah Park, and John Does I-X.
In an April 14 filing, King and Gelle dropped some defendants initially named in the lawsuit because they were “uninvolved” in the daily operations of Montefiore: Menorah Park Foundation, the Montefiore Foundation, Menorah Park at Home, LLC, and Menorah Park Men’s & Women’s Association.
On April 12, Montefiore filed a countersuit against King and Gelle.
Pivonka’s motion for a stay on all proceedings and a protective order relates to a motion for discovery – or the production of evidence – by King and Gelle through their lawyer, Steven A. Sindell of Sindell & Sindell, LLP of Beachwood.
Schwalberg, COO of Menorah Park, was told not to disclose information about the attorney general’s investigation by a representative of the attorney general’s office. He provided a signed affidavit regarding this.
“I have been directed to not interfere with the (Ohio attorney general’s) investigation of the October 2020 incident,” Schwalberg wrote in the April 23 affidavit. “Specifically, I was directed that Montefiore should not conduct its own independent investigation of the October 2020 incident while the OAG’s investigation is ongoing including seeking out or interviewing additional witnesses. I also was directed that I should not discuss or disclose information relating to the OAG’s investigation of the October 2020 incident. I have also personally observed OAG personnel providing similar instruction to other witnesses that they interviewed. I have been advised that the OAG has reiterated these instructions on multiple occasions.”
Pivonka specified the nature of the Ohio attorney general’s investigation in his motion in the King and Gelle lawsuit.
“The issues in this case and in the other investigations – most notably the OAG’s criminal investigation – are virtually identical,” wrote Pivonka. “The question of whether (King and Gelle) did, in fact, submit falsified samples for COVID-19 testing is the central issue of the investigations…
“Information sought in discovery will necessarily overlap the information being sought in the (attorney general’s) criminal investigation,” Pivonka wrote. “Provision of information in discovery almost certainly will provide non-public information to (King and Gelle) who are potential targets of the (attorney general’s) and other investigations.”
In a Feb. 3, 2021, letter addressed to Montefiore’s administrator, Beth A. Karpiak, long-term care branch manager for the Center for Medicare and Medicaid Services Chicago operations group, listed findings following the falsification of COVID-19 testing and based on other deficiencies at Montefiore, including abuse and neglect.
The CJN previously reported Montefiore was ordered to file two plans of correction in November and December. In addition the Ohio Department of Health applied a discretionary denial of payment for new Medicare and Medicaid admissions effective Dec. 2 through Dec. 29, 2020.
The fines of $316,980 issued to Montefiore were calculated at a level of $16,305 per day for 18 days from Oct. 13, 2020, to Oct. 30, 2020, totaling $293,490, as well as $435 per day for 60 days from Oct. 31 to Dec. 29, 2020, totaling $26,100.
Montefiore and Menorah Park, which affiliated July 1, 2020, had the right to appeal the fines. Waiving their right to appeal, as Silver told the CJN on April 28, they intend to do, would result in a 35% reduction in fines.
In addition, Karpiak’s letter stated that Montefiore was prohibited from approval of nurse aide training programs and competency evaluation programs from Dec. 2, 2020, because of the imposition of penalties.
ProPublica lists fines of nursing homes in Ohio and across the country from April 2019 through January 2021. As of that date, one Columbus nursing home, Bella Terrace Rehabilitation and Nursing Center, had total fines of $398,556. Of Ohio’s 953 nursing homes, 750 had infection-related deficiencies, according to ProPublica. ProPublica also logged $6.77 million in penalties to Ohio nursing homes in that timespan.
Holly Fischer, chief legal counsel at the Ohio Board of Nursing, said she could not confirm an investigation into Montefiore.
“Under Ohio law, the board is not authorized to release information confirming or denying the existence of an investigation,” Fischer wrote in an April 27 email to the CJN.
Deborah Veley, executive director of the Ohio Board of Long-Term Services and Supports, said she could not comment on the investigation in an April 27 email to the CJN. Veley confirmed that her agency’s investigation is ongoing. That agency is investigating Hyman, the former administrator.
“BELTSS has no further comment at this time,” Veley wrote in an April 28 email to the CJN.
A spokeswoman for the Ohio Department of Health referred the CJN to the surveys it conducts in an April 28 email.
“The Ohio Department of Health cannot confirm nor deny whether we are investigating any allegations or complaints at the Montefiore Home as all surveys are unannounced in accordance with the Code of Federal Regulations,” wrote Alicia Shoults of the Ohio Department of Health’s office of public affairs and communications.
Lucas Sullivan, deputy press secretary at the Ohio attorney general’s office, said he could not provide any information in an April 27 email to the CJN.
“We cannot comment on nor confirm any investigations being conducted by our office,” Sullivan wrote. “Thanks for understanding.”
Sindell, King and Gelle’s lawyer, had no comment when reached April 27.
The CJN filed a public records request April 27 relating to Montefiore’s response to Karpiak’s Feb. 3 letter.
This is a developing story.