A Powerful Nursing Home Owner and a Push For Medical Review Panels in Kentucky

Hazard Health & Rehabilitation Center in Hazard, Ky.

Jacob Ryan / Louisville Public Media

Hazard Health & Rehabilitation Center in Hazard, Ky.

Nestled on a hillside above Perry County Central High School, the Hazard Health & Rehabilitation Center was unlike any home Mae Campbell ever had.

There, on separate occasions in 2009, two male residents sexually abused the now 91-year-old widow and Alzheimer’s patient, once within sight of a nursing supervisor. The state said the nursing home “failed to protect” its residents from roving sexual predators in their midst. The home and its administrator were spared a criminal trial by paying a $20,000 fine.

Hazard Health & Rehab was also home for Glenda Lykins, a dementia patient who tended to wander and fell 11 times, finally breaking a hip in 2011 before she was moved out. Home it was, too, for Anna Ambrose, who died there in 2006 with a gaping pressure ulcer and bedsores.

All three cases went to court. The Campbell lawsuit, which accused the nursing home of putting profits before patient safety, was settled out-of-court for an undisclosed dollar amount. A Perry County jury awarded the Ambrose estate $300,000, including $225,000 in punitive damages for the nursing home’s “reckless disregard” of Ambrose. The judgment was upheld on appeal. Lykins’ negligence suit, filed by her daughter Leah Stone, is scheduled for trial next May.

Whether or not cases like those have legal merit, the Kentucky long-term care industry wants to create a detour for people with malpractice claims. Backed by the state Republican Party and joined by hospitals, medical associations and the Kentucky Chamber of Commerce, the industry is pushing for a law that would require claims to be vetted by ad hoc panels of three “health care providers.” And helping bankroll that push is the man who has thrown more money at Republican candidates in state elections than anyone else the last eight years, Hazard Health & Rehab Center owner Terry Forcht.

Forcht, chairman and chief executive of The Forcht Group in Lexington, is a force in politics, philanthropy and in business. A Louisville native and holder of a law degree from the University of Louisville, Forcht (pronounced fork) has given at least $143,394 for state political campaigns since 2006, heavily favoring Republicans, according to the National Institute on Money in State Politics and the Kentucky Registry of Election Finance. His wife Marion tossed in $100,444 during that period. Forcht is even more generous in national politics, and when Karl Rove’s American Crossroads super-PAC needed to set up a checking account in 2010, it turned to Forcht Bank.

As a businessman, Forcht runs an empire that sprawls across the state. It extends into banking, insurance, health care, commercial real estate, retailing, newspapers, radio stations, technology services and a 160-acre horse farm north of Lexington. His companies employ about 2,400 people. Forcht Bank has more than $1 billion in assets in 12 Kentucky counties.

But Forcht’s first-born business was a nursing home, in 1972. He has nine now. And although they were his most profitable enterprise as recently as 2009, he and other nursing home owners want a favor from government.

***

On the national Nursing Home Compare website, maintained by the U.S. Centers for Medicare and Medicaid Services (CMS), facilities receive ratings of one to five stars based on inspection reports, staffing and quality of care. A five-star rating is the highest.

As of Oct. 1, Kentucky had 284 nursing homes rated on the database, and a third of those had scores of one or two stars, according to an analysis by Families for Better Care, a non-profit advocacy group in Tallahassee, Fla. Only eight states had a higher percentage of below-average homes.

“That just shows there’s widespread abuse, neglect, mistreatment of residents occurring in far too many nursing homes,” said Brian Lee, executive director of Families for Better Care.

Forcht’s nursing homes tend to do well on the Medicare ratings. Three — in Campton, Harlan and Hindman — received five stars, while four others, two in Corbin and one each in Hyden and Williamsburg, received four. The Barbourville facility rated average with three stars.

The exception is the Hazard Health & Rehabilitation Center, where Campbell, Lykins and Ambrose lived and suffered. In the eyes of federal and state regulators, Hazard H&R is a nursing home rife with red flags.

  • CMS gives Hazard an overall rating of one star, or “much below average,” on its Nursing Home Compare website. Hazard also rates one star for “staffing,” as the 23 minutes per day spent with residents by registered nurses are less than half the state and national averages. Moreover, 22 percent of its long-term patients reported having “moderate to severe pain” in the year ended March 31, more than double the state and national averages of 9.1 and 8 percent, respectively.
  • In the wake of Mae Campbell’s experience in 2010, the Kentucky Cabinet for Health & Family Services wrote in a report that the Hazard nursing home “failed to protect residents from unwanted sexual contact” and “had knowledge that … (two) male residents with cognitive impairment had a history of exhibiting sexual behaviors.” This was the case that led to criminal charges that were dropped upon the payment of a $20,000 fine and further training of employees.
  • In a separate case, CMS fined Hazard $6,000 — later lowered to $3,900 — after the Kentucky Cabinet for Health & Family Services cited the facility in 2012 for providing “substandard quality of care” to another patient.

Along with its spotty record with regulators, Hazard Health & Rehab Center often finds itself in the crosshairs of private malpractice claims. Not only was it sued by the family of Campbell, Lykins and Ambrose, it faces at least five other negligence suits that are pending in Perry County. The latest was filed Sept. 19.

In other words, based on the stream of recent lawsuits and its one-star rating by CMS, there appear to be no outward signs of improvement at the 200-bed Hazard nursing home. Meanwhile, the Forcht Group has devoted much attention to another area — backing Republican legislators who support so-called medical review panels.

Forcht Group CEO Terry Forcht, seated in the front row, takes notes as the Kentucky House Health & Welfare Committee hears debate in March 2012 about a medical review panel bill. Paducah trial lawyer Gary Schaaf, front, argues against the bill.

Forcht Group CEO Terry Forcht, seated in the front row, takes notes as the Kentucky House Health & Welfare Committee hears debate in March 2012 about a medical review panel bill. Paducah trial lawyer Gary Schaaf, front, argues against the bill.

Last November, Gov. Steve Beshear declared his intent to raise the quality of nursing home care in Kentucky. The state had just racked up a record 190 cases of “immediate jeopardy” among nursing home patients, according to the Health and Family Services Cabinet, and had gotten a D on its Families for Better Care report card. Beshear urged brainstorming by state long-term care officials and in public forums. Two bills were passed in 2014, one creating a caregiver misconduct registry and another putting Kentucky into a national system for doing background checks on nursing home job applicants.

At the same time, however, Senate Republicans were pushing a bill less friendly to nursing home consumers.

In each of the past three years, the state General Assembly has considered bills that would require claims to be heard by medical review panels for an unbinding opinion before proceeding to court. The first attempt, sponsored by a House Democrat in 2012, went nowhere, but bills in 2013 and 2014 were passed by the Republican-controlled Senate. The 2013 bill applied only to nursing homes; this year’s was expanded to all health care providers. Both times, the proposed laws died in the Democratic-controlled state House, which Republicans hope to win in the Nov. 4 elections.

As the 2015 legislative session approaches, medical review panels remain a Republican Party priority, according to its “Handshake with Kentucky” political agenda. Many of those who will vote on the bill appear on Forcht’s political expense ledgers.

Of the 23 senators who voted for the bill each year, 14 — all Republicans — have received a total of at least $61,950 from Terry Forcht, his wife Marion, their son Ted, their daughter Laurie Shockley and Forcht Group employees going back to the 2006 election cycle, according to the National Institute on Money in State Politics at the University of Montana.  The Forcht donors have also given $69,200 to the Kentucky Republican Party for state elections during that time.

Neither Terry Forcht nor Forcht Group spokesman Eddie Woodruff returned five phone calls to discuss their campaign-finance strategy, medical review panels or the Hazard nursing home.

(Data: 14 of the 23  state senators who voted for medical review panels have received campaign money from Forcht, family members and employees in the past eight years.)

Do Forcht’s counterparts at other large long-term health care providers based in Kentucky sprinkle cash on their favorite state lawmakers? Barely.

Paul Diaz, CEO of Kindred Healthcare in Louisville, has given no money to Kentucky legislators the last eight years. Joseph Steier, CEO of Signature Health Care in Louisville, gave $100 to Joe Bowen, a Republican senator from Owensboro who voted for medical review panels. Randy Bufford, CEO of Trilogy Health Services in Louisville, gave $2,500 to both political parties in 2012.

Richard Beliles, chairman of the nonprofit advocacy group, Common Cause of Kentucky, doesn’t like what he sees in the connections between the 14 senators and Forcht.

“I see the purchase of the independence of these legislators with these contributions over a problem which is not really a real problem,” he said. “They have no empirical proof that these (malpractice) cases — any of them won by plaintiffs — were frivolous. It is a manufactured issue that benefits everybody: It benefits Forcht and it benefits legislators. They want money to keep getting re-elected, and I think it’s a fire sale of the independence of the members of the legislature. I think it’s damaging and definitely not in the public interest.”

The Kentucky Center for Investigative Reporting tried to contact the five senators who have received more than $5,000 apiece from the Forcht faction. Brandon Smith, the majority whip from Hazard, and Sens. Jared Carpenter of Berea and Chris McDaniel of Taylor Mill did not return phone calls. Only two — Bowen and David Givens of Greensburg — responded. Both said they voted for the medical review panel bills on their merits and that Forcht’s money had nothing to do with it.

“I take a position on a lot of public policy issues and when I do, they’re typically hard-and-fast decisions and they’re decisions that I’ve contemplated and have investigated and have reconciled in my own mind,” Bowen said. “And when you come out and take a position, there are going to be those that appreciate the decision that you make, and they’re going to support that decision. That’s part of the process, and there are conversely going to be those who are going to be disappointed by your decision.”

Bowen received $7,000 from the Forcht group last October, eight months after voting for the bill in February 2013 and four months before voting for its successor in February 2014. Givens has also received at least $7,000 from the Forcht group, almost all of it in 2008.

“I know him primarily for his banking investments in my local community,” Givens said. “He has never spoken with me directly or through lobbyists regarding these panels.”

Givens said he will vote for the bill again in 2015 if it contains essentially the same terms. Bowen said he will be “inclined” to support it. Both said their support of the bill goes to their interest in tamping down meritless litigation and lowering malpractice insurance premiums.

Glenda Lykins, seated, and her daughter Leah Stone.

courtesy of Leah Stone

Glenda Lykins, seated, and her daughter Leah Stone.

The medical review panel legislation in Kentucky goes like this: Unless contracts require disputes to go to arbitration or if both sides agree to skip the panel, all malpractice claims must be heard by a medical review panel for a non-binding opinion before a lawsuit can be filed. The panel will include three “health care providers … from the professions and within the specialty fields, if any, of one or more of the defendants.” Its opinion would be admissible if the case goes to court.

Julie Denton, an outgoing Republican state senator from Louisville and the bill’s co-sponsor, said on the Senate floor in February that the bill is aimed at the “overly litigious environment that we have here in Kentucky that does nothing to promote better care for our citizens.” She blamed “predatory PI (personal injury) firms, many from Florida and Texas” for the “culture of litigation and blame.”

“For those individuals who are doing this, this isn’t about the patient, it’s about the pocketbook,” said Denton, who has received at least $3,500 in campaign money from Terry and Marion Forcht. “That’s what they’re after. Legitimate attorneys with legitimate cases have no reason to fear this.”

Matt McGill, a Bowling Green lawyer serving as co-counsel in the Lykins suit against Hazard Health & Rehab Center, scoffed at that notion. He said the true intent is to delay all claims, not just any frivolous ones. Moreover, he questions the neutrality of the panels in Denton’s bill.

“These medical review panels are inherently going to be biased because you’re asking them to make a decision about one of their colleagues,” he said. “Whether they know the person personally or not, it’s still their colleague, and they are inherently going to say, ‘This could be me.’ So I just don’t see how you could get a fair and impartial decision.”

Leah Stone, a Hazard resident and daughter of Glenda Lykins, prefers that nursing home suits be decided by juries of regular people. She said her mother, now 70, is doing well at the 5-star Letcher Manor nursing home in Whitesburg.

“If you had a group of medical experts, well, it’s like, to me, birds of a feather flock together,” Stone said. “I would feel that they would be biased and would be in favor of the health care industry … You know it’s not going to be a level playing field.”

***

According to the National Conference of State Legislatures, 16 states require that malpractice claims first go before a medical review panel of one form or another. In at least 12 other states, the panels were repealed by lawmakers or invalidated by courts.

How the panels are regarded depends on the beholder. But according to a research review by Pew Charitable Trusts in 2003, studies have found that panels increase overall litigation costs, cause significant claim review delays in some states, have no consistent effect on claim amounts paid, have no consistent effect on malpractice insurance premiums and may or may not encourage the filing of claims.

“Overall,” the report concluded, “panels are unpromising.”

Indiana, which adopted medical review panels in 1975, provides a handy guide to how the additional layer of review could play out in Kentucky. According to the Indiana Department of Insurance, 1,145 complaints were filed in 2013, more than all but two prior years. Of the opinions rendered from 2009 through 2013, 975 were in favor of health care providers, 208 against. The state does not track how many cases went on to court.

One of trial lawyers’ main objections to review panels is that they prolong the time it takes for cases to be decided in court. That, they say, can jeopardize their case if the plaintiff is dying or in deteriorating mental condition. In Indiana, panels render most opinions within three years, but in some instances take between four and 11 years.

The drive to bring medical review panels to Kentucky will come down to the Nov. 4 state elections. Republicans are hoping to win a House of Representatives majority for the first time since 1921. It would take a turnabout, since Democrats have a 54-46 edge, but a House majority — and retention of the Senate — could tip the scales in favor of the bill and the override of any veto by Gov. Beshear, a Democrat. Failure to win the House would all but doom malpractice reform legislation.

Again, Forcht wants to be a factor. In the last two state election cycles, going back to 2011, Forcht, his family and his executives have spread their political largesse to the House. Their $68,800 was split by 22 Republicans and two Democrats. Those receiving $5,000 or more include incumbents Stan Lee of Lexington and Ken Upchurch of Monticello, challenger Phil Moffett of Louisville and unsuccessful House challengers Lyen Crews and Chris Logan, all Republicans.

All this money changing hands in the name of political contributions begs obvious questions: What if Forcht spent more money on nurse staff, equipment and patient care at Hazard Health & Rehab Center? Would that not lead to happier customers with no desire to run to the local courthouse?

Brian Lee, of Families for Better Care, thinks so.

“If they would just provide better care and put more staff — qualified staff – working in their nursing homes, there’d be fewer problems and there’d be fewer lawsuits,” he said. “But the industry doesn’t want to do that because it would upset the profit apple cart. Labor costs money, and they believe that it would be too expensive for them to hire enough staff that they need to take care of residents. That’s what this is all about; it’s all about the money.”

The Forcht Group does not disclose its financial information, but in a sworn statement in the Anna Ambrose lawsuit in 2009, Chief Financial Officer Roger Alsip said that the company’s nursing home business was “generally” its most profitable. He further disclosed one of the reasons for the nursing home division’s profitability: It hadn’t carried insurance on the homes since “probably” 2003 or 2004, a roll of the dice that paid off because it didn’t pay any claims between 2002 and 2009.

“It, basically, just became a business decision,” Alsip testified. “It got so expensive to get the coverage, and for what insurance you can get, we just made the decision not to carry it.”

That, said Jeff Morgan, a Hazard attorney who filed the Campbell, Lykins and Ambrose cases, makes nursing homes less inviting targets for lawsuits.

“A lot of attorneys, when they find out there’s no liability insurance, they just stop,” he said. “That’s something that will put attorneys off because they don’t know if they get a judgment if they can collect it.”

But the Forcht-owned nursing home in Hazard, a worst-of-class facility fined for not sheltering its residents from sexual predators, remains a magnet for negligence lawsuits. And how much legal havoc are those alleged “predatory” lawyers causing for Forcht’s five-star nursing homes in Harlan, Knott and Wolfe counties? They face a grand total of one lawsuit between the three of them.

Reporter James McNair can be reached at jmcnair@kycir.org and (502) 815-6543.

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