A.G. Underwood Announces Guilty Pleas Of Former Focus Otsego Nursing Home Operators For Endangering Resident

News from the New York Attorney General's Office 

FOR IMMEDIATE RELEASE
September 12, 2018

Attorney General's Office Press Office / 212-416-8060
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A.G. UNDERWOOD ANNOUNCES GUILTY PLEAS OF FORMER FOCUS OTSEGO NURSING HOME OPERATORS FOR ENDANGERING RESIDENT

 

Former Owner and Former High Managerial Agent of Otsego County Nursing Home Plead Guilty to Endangering a Resident by Failing to Provide Sufficient Staffing and Care

 

Defendants and Corporation to Pay $1 Million in Restitution, Damages, and Equitable Relief to Medicaid

 

Defendants Will Not Operate or Administer Any Health Care Provider in NYS for Five Years and Will Divest of All Direct and Indirect Interests in New York State Healthcare Providers

COOPERSTOWN – Attorney General Barbara Underwood today announced the guilty pleas of Joseph Zupnik, former corporate owner and operator of Focus Rehabilitation and Nursing Center (Focus Otsego), and Daniel Herman, former Focus high managerial agent, for endangering the welfare of an incompetent or physically disabled person. Herman and Zupnik’s guilty pleas included admissions that between May 28, 2016 and June 1, 2016, they recklessly acted in a manner likely to be injurious to the physical, mental, or moral welfare of a person unable to care for themselves because of physical disability. The defendants also admitted to failing to provide sufficient staff to provide the necessary care for one Focus resident, including, but not limited to, nutrition, medications, and incontinence care.

Zupnik, Herman, and their corporation, CCRN Operator, d/b/a Focus Rehabilitation and Nursing Center (CCRN) additionally entered into an assurance of discontinuance, in which they agreed to repay the state Medicaid program $1 million for restitution, damages, and equitable relief in order to resolve the civil claims against them. The defendants also agreed to divest themselves of all direct and indirect interests in healthcare providers operating in New York State by June 30, 2019. For a period of five years, Herman and Zupnik will not operate or administer any healthcare provider in New York State and have no oversight or involvement in the financial operations nor any input whatsoever in decisions involving the delivery of health care to nursing home residents.

“Owners and operators of nursing homes have a solemn obligation to ensure that residents are appropriately cared for,” Attorney General Underwood said. “My office will hold accountable all nursing home owners, operators, and administrators who disregard their obligation to provide sufficient staffing and adequate care to the vulnerable residents.”  

Focus Rehabilitation and Nursing Center is located in Cooperstown, New York; since early 2017, the facility at that location has been operating under new ownership and management. The Attorney General’s investigation found that upon Zupnik and Herman taking control from October 2014 through December 31, 2017, Focus Otsego cut staff payroll and other necessary services and supplies needed to provide safe and adequate care and sufficient staffing levels to the approximately 174 residents. The defendants also benefited from funds paid by Medicaid for resident care at Focus Otsego through companies they owned or controlled.

The Attorney General’s investigation found that, as part of the program to cut staff payroll that led to the reduction in staffing levels and other expenditures, Zupnik and Herman failed to recruit and retain enough staff to allow adequate staff to be assigned to each shift. As a result, there were not enough workers to provide adequate care and services to the residents, nor sufficient supervision to ensure that the nursing staff were providing adequate care.

The investigation also found that Zupnik and Herman had knowledge that the staffing levels and payroll cuts they imposed were unsafe for the residents, as successive Administrators and Directors of Nursing (the senior licensed professional managers of Focus Otsego) made continuous and repeated demands for more staff. Zupnik and Herman failed to address those demands or the other numerous warnings that residents were at risk for harm including, but not limited to:

  • Five arrests of Focus Otsego staff for crimes involving healthcare offenses, including abuse or neglect of residents, in multiple incidents from August 2015 through August 2016 – including neglect of Resident M.P., as described below.
  • Official New York State Department of Health inspection surveys and reports determining that Focus Otsego was in “Immediate Jeopardy” status in July 2015 and June 2016. “Immediate Jeopardy” is the highest level category of deficiency, indicating that an event at the facility has caused or is likely to cause serious injury, harm, impairment, or death to the residents.
  • Warnings from senior managers as to the impact of defendants’ reductions in staffing levels and salaries.
  • Numerous incidents and accidents at the facility, including those documented in internal reports to Zupnik and Herman that illustrate abuse, mistreatment, and neglect of residents; numerous injuries to residents purportedly of unknown origin; and incidents where residents were found on the floor injured with no explanation and with no investigation to determine the cause of such incidents.
  • Repeated communications from Administrators and Directors of Nursing to Zupnik and Herman warning that staffing levels were low and at times unsafe and below critical levels, and that supervisors could not find sufficient numbers of willing staffers to work shifts due to pay cuts and double-shift requirements imposed by defendants.

The Attorney General’s felony complaint charged that Zupnik, Herman, and CCRN endangered a 94 year-old resident, M.P., alleging that she was left in a recliner in the common living room area of the nursing home for approximately 41 hours from May 28, 2016 at approximately 1:00 p.m. until May 30, 2016 at approximately 6:30 a.m. Staff left Resident M.P. in the recliner and failed to provide timely, consistent, safe, adequate, and appropriate services, treatment, and care. Furthermore, the resident’s care plan and medical record indicated that Resident M.P. required a two-person Hoyer lift to move the resident; turning and repositioning to avoid development of pressure sores; incontinence checks every two hours by staff; and neurological checks due to a recent fall. Despite this, multiple Certified Nurse Aides (CNAs) did not provide care pursuant to Resident M.P.’s care plan, including incontinence care and turning and repositioning. The CNAs did not provide food or drink or other required assistance with activities of daily living, or attempt to administer medications. The nursing staff did not conduct ordered neurological checks, but instead made false entries in Resident M.P.’s medical records that such checks were performed. Four Focus employees were previously prosecuted and convicted for their roles in Resident M.P.’s neglect. CNA Donna Gray pleaded guilty to disorderly conduct and was sentenced on November 9, 2016; CNA Sarah Schuyler and LPN Amanda Gus pleaded guilty to Falsifying Business Records in the Second Degree and was sentenced on December 21, 2016; LPN Lorraine Caldwell pleaded guilty to Falsifying Business Records in the Second Degree and was sentenced on February 15, 2017.

Today, Zupnik and Herman pleaded guilty to Endangering the Welfare of an incompetent or physically disabled person in the Second Degree, a Class A misdemeanor, in violation of Penal Law § 260.24., in Otsego Town Court before the Honorable Gary Kuch. Sentencing is scheduled for October 10, 2018.

The corporation, CCRN Operator d/b/a Focus Rehabilitation and Nursing Center, entered a felony plea agreement and its next appearance is scheduled for September 24, 2018 in Otsego County Court.

The nursing home is now under new ownership and known as Otsego SNF Operations Association d/b/a Cooperstown Centers. It was previously known as Otsego Manor and was owned by Otsego County until the sale in October 2014 to CCRN and Zupnik.

Persons with knowledge of Medicaid fraud, abuse, or neglect of nursing home residents – including systemic causes of abuse and neglect in nursing homes – are encouraged to provide such information by contacting the Attorney General’s Medicaid Fraud Control Unit at 800- 771-7755 or online at https://ag.ny.gov/comments-mfcu.

The investigation was conducted by Investigators Danette Benson and Michael Connelly of the Albany Medicaid Fraud Control Unit, with the assistance of Medical Analyst Stephanie Keyser, Supervising Investigator Dianne Hart, and Upstate Deputy Chief Investigator William Falk. Senior Auditor-Investigator Cheryl Kaczor and Auditor-Investigator Gregory Reinhart assisted in the case.

This case was handled by Regional Director Kathleen Boland of the Albany Medicaid Fraud Control Unit and Special Assistant Attorney General Sally Blinken. Catherine Wagner is MFCU's Chief of Criminal Investigations – Upstate. The Medicaid Fraud Control Unit is led by Director Amy Held and Assistant Deputy Attorney General Paul J. Mahoney. The Criminal Justice Division is led by Executive Deputy Attorney General Margaret Garnett.

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