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Nursing home operator won’t be prosecuted for abuse for fear of closing facility

This article was originally posted by Clark Kauffman on Des Moines Register

Criminal prosecutors have dropped felony abuse charges against an Iowa nursing home operator, arguing that his conviction would have harmed the facility’s residents.

Des Moines County Attorney Amy Beavers said if she pursued the prosecution of Marc Johnson, whose company runs the Danville Care Center in southeast Iowa, the facility might have been forced to close, displacing its three-dozen residents.

Beavers’ decision means Johnson, the 47-year-old president of Cardinal Care Co., will not be tried for an alleged offense that would legally disqualify him from employment as one of his company’s nurse aides, housekeepers or janitors.

The decision not to prosecute has riled advocates for the elderly.

“This doesn’t pass the smell test,” said John Hale, a consultant and advocate for Iowa’s elderly. “A person isn’t prosecuted because of the impact it might have on their business? I was taught that justice is blind. It certainly doesn’t appear so in this case.”

“For the county attorney to close her eyes to this and leave this man in a position of authority so the business can remain open just seems absurd to me,” said Dean Lerner, an advocate for seniors who once ran the Iowa agency that inspects nursing homes.

Johnson formed Cardinal Care Co. as a for-profit corporation in December 2012. In 2013, the Danville Development Co., which owns the Danville Care Center, hired Cardinal Care to run the home.

In December 2016, Iowa’s Medicaid Fraud Control Unit charged Johnson with two felonies: Fraudulent practices and dependent-adult abuse in the form of financial exploitation.

The state alleged Johnson, who has access to residents’ trust accounts at the home, spent almost $700 on a television for the facility, using money from the trust account of one elderly resident, Bernice Wagner.

Johnson also was accused of making two separate $500 “donations” from Wagner’s account to the care facility, with the money used to pay for events and equipment.

Last fall, with the criminal charges still pending, a representative of the development company that owns the home contacted prosecutors and warned that if Johnson was convicted, his company would have to sever ties with Cardinal Care, and the home would have to close.

The president of the development company, Matthew Hauptman, said this week that while he feels it was unlikely the home would have closed, his company had to guard against that possibility.

“I don’t think that it would have happened, but we haven’t faced a situation like this before,” he said. “From what we gathered, Marc wasn’t doing anything that wasn’t wanted by the patient, anyway — at least not as far as we know.”

Citing the concerns raised by the development company, prosecutors agreed to drop the case against Johnson through a deferred-prosecution agreement.

As part of that arrangement, Beavers promised not to pursue the charges if Johnson paid all court costs associated with the case and didn’t violate any laws for two years.

Beavers told District Court Judge John Linn that Johnson “was not profiting” from the use of Wagner’s money, contradicting the trial information filed by her office, which accused Johnson of taking the money “for his own personal or pecuniary profit.”

She also said a state audit of the residents’ trust accounts revealed no irregularities.

Johnson’s attorney, Aaron Hamrock, said the care center maintains there were “no improprieties or irregularities” involving resident trust accounts.

“The center believes it was unfortunate that the case moved forward in any capacity,” he said. “The center has provided skilled nursing care for the Danville and surrounding community for many years and looks forward to continuing to provide these important and meaningful services and to having its residents thrive going forward.”

The federal Centers for Medicare and Medicaid Services rates the quality of care at the Danville Care Center as “below average.”

Hauptman said he’s not concerned that Johnson continues to run the facility and has access to residents’ personal funds. He said prosecutors must not have thought the charges had merit or they wouldn’t have been dismissed, adding that he thinks his company’s lobbying for a dismissal had little to do with that decision.

Hauptman described Johnson’s alleged conduct as minor.

“It was buying some candy for Halloween is what it was,” he said. “From what we gathered, Marc wasn’t doing anything that wasn’t wanted by the patient, anyway — at least not as far as we know.”

When asked about the alleged $1,700 in expenditures and the television, Hauptman said, “Yes, there was a TV situation.”

He said Wagner had decided she didn’t want a television that had been purchased for her, so it was moved out of her room to an area where everyone could watch it.

Asked whether her office considered requiring Johnson to relinquish access to resident trust accounts as a condition of the deferred-prosecution deal, Beavers told the Register she believes her office lacks the authority to seek such concessions.

“That would be a civil matter that we can’t negotiate in a criminal case,” she said. “We’re ethically prohibited from doing that.”

The Iowa Department of Inspections and Appeals, which regulates nursing homes, has proposed that the care center change its policies to require two staff signatures, rather than one, for all withdrawals from resident trust accounts.

This article was originally posted by Clark Kauffman on Des Moines Register

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