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UPDATE: Nightingale CEO claims state retaliated for report of 'racially tinged' remarks

February 5, 2016

The CEO of Nightingale Home Healthcare claims the negative patient surveys that have put his company on the brink of death were part of a campaign of retaliation by state health department officials after he complained about “racially tinged” remarks allegedly left on his voicemail from a health department employee.

Dr. Dev Brar, CEO of Carmel-based Nightingale Home Healthcare, said in a federal lawsuit filed Thursday that since he complained about the alleged racial comments, the Indiana State Department of Health has conducted more frequent inspections at Nightingale facilities and issued harsher reports after those surveys.

The alleged racial comments were recorded inadvertently when a health department employee failed to hang up after leaving a message for Brar, who is Indian, the lawsuit states.

The lawsuit claims that two health department officials—Randall Snyder, the director of the division of acute care, and Kelly Hemmelgarn, a program director responsible for state inspections—retaliated against Nightingale after he reported the remarks to officials.

The lawsuit accuses Hemmelgarn of making an anonymous complaint to government officials about Brar using the title “Dr.,” since Brar is not licensed to practice medicine in Indiana. It also states Hemmelgarn sent a health department surveyor illegally “rummaging through desks, boxes and file cabinets” at a recently closed Nightingale office.

The alleged retaliation culminated in 15 days of inspections conducted in October and November, according to the lawsuit, during which health department surveyors were allegedly instructed to “find instances of immediate [patient] jeopardy that would justify” Nightingale losing its contracts with the Medicare and Medicaid programs.

“Surveyors acting under the direction of Snyder and Hemmelgarn made statements to Nightingale that ‘we are going to shut you down’ before the survey was even completed,” states the lawsuit, which was filed in U.S. District Court in Indianapolis.

The Medicare and Medicaid programs pay for 98 percent of Nightingale’s nearly 900 patients. On Dec. 10, the federal Medicare program decided to terminate its contract with Nightingale, because the state surveys claimed at least two patients had been put in “immediate jeopardy” by poor care from Nightingale.

The lawsuit names Snyder, Hemmelgarn, a health department surveyor, the Indiana State Department of Health and the U.S. Department of Health and Human Services, which oversees the Medicare and Medicaid programs.

A spokeswoman for the U.S. Department of Health & Human Services declined to comment on the lawsuit. A spokeswoman for the Indiana health department referred questions to the Indiana Attorney General’s office.

“Allegations in a civil lawsuit are the opinion of the plaintiffs’ lawyers filing them and may be refuted in court. The plaintiffs’ lawyers have the burden of proof, not the government defendants,” wrote Bryan Corbin, a spokesman for the attorney general, in an e-mail.

Nightingale, one of the state’s largest home health providers, filed for bankruptcy reorganization on Dec. 10, the same day Medicare decided to terminate reimbursements. On Jan. 25, it won a temporary injunction preventing Medicare from immediately terminating payment for its services.

According to state inspection reports, one patient, who had a urinary tract infection, received no visits from Nightingale staff for a month after his usual nurse went on medical leave, the Medicare agency said. He developed sepsis and was taken by ambulance to a hospital. He was discharged nine days later but returned to the hospital within 24 hours and died two weeks later.

A second patient was supposed to have his blood drawn for testing, but the agency said Nightingale staff members failed to show up to do so on several occasions. When staff members did show up, they often were unable to successfully draw blood, with one employee saying “she would have to have a refresher course in lab.”

The patient ended up hospitalized with a solid swelling of a blood clot in his chest and measurements of blood coagulation at critical levels.

But Brar asserts state officials have singled his company out for criticism. The suit says the state conducted “an inordinate number of surveys of Nightingale and hospice compared to similarly situated providers, with no rational basis for doing so.”

"Not only is the state playing games with my company, but they're playing games with Hoosiers lives," Brar said.

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