The territory’s only nursing home filed suit against the federal government Monday to prevent it from cutting off Medicaid payments for long-term patients, closing the facility and sending the patients to facilities stateside as early as next week.
Affidavits from family members of several of the affected patients support the suit and claim relocation would be extremely injurious and possibly life-threatening to the patients.
St. Thomas Nursing Home Prime Limited Partnership, doing business as Sea View Nursing Home, “individually and on behalf of its residents” brought the action in District Court against the Centers for Medicare and Medicaid Services and the United States Department of Health and Human Services.
Sea View is seeking a temporary restraining order to keep CMS from terminating payments as of May 4, as it has signaled it will do. Sea View is also seeking an injunction and claims breach of contract.
The Virgin Islands government is not named either as plaintiff or defendant. However, the Virgin Islands Department of Human Services has had responsibility for the facility since last summer, in a settlement agreement worked out then between CMS and Sea View.
As part of the settlement, Sea View agreed to arrange for the management and sale of the facility to a qualified entity or individual. The suit claims Sea View has made good faith efforts to do so, but describes CMS as thwarting those efforts.
The suit is the latest development in a years’ long saga. More than two years ago, CMS – which covered costs for the majority of residents at the facility – warned it would decertify Sea View because of deficiencies it found in facility operations.
Last year it ceased payment for new patients at the nursing home but has continued to cover costs for existing residents. The number of clients has therefore declined. It was not immediately clear how many residents are currently at Sea View, but the suit references 16 Medicaid residents.
In an affidavit supporting the complaint, Dr. Alfred O. Heath, who co-founded Sea View and who was its medical director from 2001 to 2014, said, “I have worked diligently toward a sale of the facility in compliance with directives of CMS set forth in the Settlement Agreement and Settlement Agreement Codicil, the terms of which they dictated, and I have engaged in extensive negotiations with at least two serious prospective buyers of the facility, and two qualified providers of temporary management services.
“However, CMS’ imposition of certain onerous conditions has severely hampered such negotiations. In particular, CMS’ refusal to reconsider the denial of payment for new admissions, a requirement of a full time temporary manager, a new requirement that the individual to be full time on site be a licensed nursing home administrator (despite the absence of any such requirement under VI law,) failure to provide assurances to a potential buyer of the continuation of federal funding pending recertification, and refusal to consider a potential lease-purchase agreement for the facility, have made it impossible to execute a temporary management agreement or binding contract of sale or lease-purchase agreement.”
An affidavit from Dr. Jack J. Michel, president and board chairman of Larkin Community Hospital in Florida, supports Health’s assertions. Michel says Larkin is an operator of skilled nursing homes “with a good reputation with CMS.” It submitted a plan for corrective actions at Sea View to CMS and to Human Services and is prepared to be the temporary manager and to purchase the facility. But it needs assurances from CMS that it will continue to pay for existing patients and will allow the facility to take in new Medicaid patients – neither of which assurances CMS will agree to give.
Hayley Cotter, an attorney with Hodge and Hodge, the firm representing Sea View, filed an affidavit outlining a similar situation for another firm that negotiated with Sea View, Whittier Health Services. CMS has been unwilling to consider various proposals that would facilitate a sale, according to the complaint.
Cotter also said she was part of several telephone conferences between CMS and the V.I. Department of Human Services about CMS’s intention to relocate Sea View patients stateside by May 4, and DHS representatives repeatedly expressed concerns that some patients might not survive the move or would die soon afterward.
“In response to this concern, CMS advised that the residents’ advance directives should be brought up to date before relocation,” Cotter wrote. “CMS also indicated that the residents’ families should be made aware that CMS does not cover the cost of returning a resident’s body to the Virgin Islands if the resident passes away.”
One woman who signed an affidavit in support of the suit said her elderly mother has been living at Sea View for six years, cannot walk, has difficulty speaking, and uses a feeding tube. The woman said she visits her mother every day after work.
“Being relocated to a strange and unfamiliar environment will be confusing for her,” according to the affidavit. In the past, she has been severely traumatized by flying and would have to be heavily sedated to get on an airplane. “Physically I do not believe my mother would survive relocation.”
Another woman said her mother suffers from depression and dementia.
“I accompany my mother to medical appointments and am concerned about who would take her to appointments if she was relocated.”
This Sea View resident “is not in contact” with any family stateside, so would not have many if any visitors, and it would be “very difficult financially” for her daughter to travel to visit her.
Other family members told similar stories; some noted that their loved ones have good relationships with staff at Sea View and several worried that the move would kill their parents.
