While sympathetic to nursing home residents’ claims that they received “deficient” care, a federal judge has ruled their case cannot be certified as a class action because claims and damages related to understaffing would be unique to each plaintiff.

The April 20 ruling is a win for the private equity group Portopiccolo, which was the last owner of the now-closed Salisbury Center in North Carolina. Allegations in the lawsuit revolve around a decline in staffing levels there after the firm took control of the one-time Genesis Healthcare facility in early 2020. 

Plaintiffs Sybil Rummage and Betty Dea and their sponsors sought to turn their breach of contract claim into a class-action suit and reclaim Medicare and Medicaid dollars paid to the operators. In addition to Portipicollo, they named land owner Salisbury Two NC Propco and management services firm Accordius Health as defendants. 

Rummage and Dea said their care began to deteriorate after Portipicollo assumed operations and named the facility the Citadel in early 2020.

“It was purposefully and consistently staffed inadequately such that it was unable to provide the services required for the safety and well-being of its residents and as promised,” they argued in claiming breach of contract in the US District Court for North Carolina’s Middle District.

They cited more than 100 potential class members who would argue 14 common questions in court, including: the use of uniform policies and management systems; whether the law requires the facility to maintain staffing at a reasonable level; whether residents had an implied contract; and what damages could be pursued. 

But the defendants, including Simcha Hyman and Naftali Zanziper, principals of New Jersey-based Portopiccolo, argued that the plaintiffs and their representatives had not met an exhaustive list of standards needed for class certification. 

US District Judge Thomas D. Schroeder noted that anyone in the class must be able to prove “commonality,” meaning they can demonstrate they have suffered the same injury. Later in his 53-page ruling, he explained that even if the facility had missed a requirement for average daily staffing levels, each plaintiff could have received a different level of care based on their individual circumstances.

Plaintiffs outlined various problems from alleged chronic understaffing as part of the defendants’ business model, such as medication and communication lapses. After it became The Citadel, the nursing home’s federal rating declined and North Carolina placed the building in its Special Focus Facility program.

By 2022, CMS had issued a notice terminating the facility from the Medicare program, and residents were relocated ahead of its closing in June 2022.

McKnight’s Long-Term Care News attempted to reach Portopiccolo for comment but a voicemail box at the firm’s New Jersey office was not accepting messages.

Defense attorneys also noted in their arguments that North Carolina has no minimum staffing requirement so that “even if Plaintiffs could somehow show that The Citadel was ‘understaffed’ pursuant to various metrics, it does not logically follow that The Citadel’s staffing levels ever actually failed to meet the residents’ needs.’” 

Noting that, the judge said the plaintiffs’ request for class certification in the understaffing case “misses the mark.”

“Plaintiffs present a sympathetic case that elderly residents of a skilled nursing facility were subjected to deficient service, contrary to that for which they allegedly contracted,” he wrote. “Whatever difficulties The Citadel experienced, moreover, may well have been exacerbated during the COVID-19 pandemic, which inflicted a particularly severe toll on congregate managed care facilities. However … Plaintiffs’ uniquely tailored claim for damages for breach of contract based on aggregate staffing hours is not readily amenable to class relief.”