COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT COMMONWEALTH LIFE CARE CENTERS OF AMERICA, INC.

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1 COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT MIDDLESEX, SS. NO. SJC COMMONWEALTH V. LIFE CARE CENTERS OF AMERICA, INC. ON REPORT OF QUESTIONS OF LAW BY THE SUPERIOR COURT FOR MIDDLESEX COUNTY BRIEF AMICI CURIAE OF AARP, NCCNHR, THE DISABILITY LAW CENTER, AND THE CENTER FOR PUBLIC REPRESENTATION IN SUPPORT OF APPELLEE KELLY BAGBY AARP FOUNDATION LITIGATION MICHAEL SCHUSTER AARP 601 E St., NW Washington, DC Tel: Counsel for Amici Curiae February 16, 2010

2 TABLE OF CONTENTS TABLE OF AUTHORITIES...ii STATEMENTS OF INTEREST...1 ISSUES PRESENTED...3 SUMMARY OF ARGUMENT...4 I. NURSING HOMES MUST BE HELD ACCOUNTABLE IF THEY PROVIDE ABUSIVE OR NEGLECTFUL CARE...5 A. The Regulatory Enforcement Process is Inadequate to Protect Nursing Home Residents from Abuse and Neglect...5 B. Nursing Home Corporations Are Responsible for the Safety of Their Residents...9 II. COURTS NATIONWIDE RELY ON THE COLLECTIVE KNOWLEDGE DOCTRINE AND SIMILAR THEORIES TO HOLD CORPORATIONS ACCOUNTABLE...11 A. The Collective Knowledge Theory Prevents A Corporation from Avoiding Culpability If It Purposefully Ignores Warnings by Its Employees and Fails to Implement Its Own Internal Safeguards...12 B. Nursing Home Corporations Have Been Convicted Based Upon the Knowledge of Employees...14 CONCLUSION...21 CERTIFICATE OF COMPLIANCE...22 CERTIFICATE OF SERVICE...23 i

3 TABLE OF AUTHORITIES CASES California v. Pleasant Care Corp., et al., CR (Napa Co. Sup. Ct. of Cal. Mar. 9, 2006)...18 Copeland Labs. Co. v. Gen. Motors Corp., 36 F.Supp. 755 (E.D. Mich. 1941)...13 Illinois v. Garti, Forest Park L.L.C. and Care Ctrs., Inc., CR (Cir. Ct. of Cook Co. Ill. Nov. 17, 2008)...19 People v. Am. Med. Ctrs. of Mich., Ltd., 324 N.W.2d 782 (Mich. App. 1982)...13 Riss & Co. v. United States, 262 F.2d 245 (8th Cir. 1958)...13 Rolland v. Cellucci, 191 F.R.D. 3 (D.Mass. 2000)...2 Rolland v. Patrick, 562 F.Supp. 2d 176 (D.Mass. 2008)...2 Missouri v. Cmty. Alternatives Mo., 267 S.W.3d 735 (Mo. App. 2008)...15, 16 Steere Tank Lines, Inc. v. United States, 330 F.2d 719 (5th Cir. 1963)...13 United States v. Cathedral Rock Corp., Case No. 4:10CR2 CAS (E.D. Mo. Jan. 7, 2010)...15 United States v. Sawyer Transp., Inc., 337 F.Supp. 29 (D.Minn. 1971)...13 United States v. T.I.M.E.-D.C., Inc., 381 F.Supp. 730 (W.D. Va. 1974)...12, 13 STATUTES AND REGULATIONS 29 U.S.C. 794e U.S.C U.S.C ii

4 42 U.S.C. 1320a-7(a)...11, U.S.C. 1395i U.S.C. 1396r CFR 483, et. seq...6 MISCELLANEOUS Marie-Therese Connolly, Federal Law Enforcement in Long Term Care, 4 J. Health Care L. & Policy 230 (2002)...17, 18 Dept. of Health and Human Services and Am. Health Lawyers Assn., Corporate Responsibility and Corporate Compliance:...A Resource for Health Care Boards of Directors, available at / CorpRespRsceGuide.pdf...10, 11 Dept. of Health and Human Services, Office of Inspector General, OEI , Memorandum Rept.: Trends in Nursing Home Deficiencies and Complaints (Sept. 2008) available at gov/oei/reports/oei pdf...6, 7, 8 Driving for Quality in Long Term Care: A Board of Directors Dashboard: Government-Industry Roundtable, A Report on the Office of Inspector General and Health Care Compliance Association Roundtable on Long-Term Care Board of Director s Oversight of Quality of Care, available at /docs /complianceguidance/roundtable Pdf...10 Wayne Lafave & Austin W. Scott, Substantive Crim. Law 3.10(a-b)(1986)...12 Nursing Home Reform: Continued Attention is Needed to Improve Quality of Care in Small But Significant Share of Homes Before the S. Special Comm. on Aging, 110th Cong. (2007) (statement of Kathryn G. Allen, Director, Health Care, GAO) available at items/ d07794t.pdf7, 8, 9 iii

5 Brian K. Payne & Randy R. Gainey, The Criminal Justice Response to Elder Abuse in Nursing Homes: A Routine Activities Perspective, 7(3) Western Criminology Review (2006)...5 Plea Agreement, Illinois v. Garti, Forest Park L.L.C. and Care Ctrs., Inc., CR (Cir. Ct. of Cook Co. Ill. Nov. 14, 2008)...19 Press Release: Attorney General Lockyer Announces Enforcement Action Against State's Second Largest Nursing Home Chain: Pleasant Care to Pay $1 Million in Fines and Immediately Improve Resident Care, (March 8, 2006), available at release. php?id=1268&...19 Press Release: Attorney General Lockyer, Santa Barbara D.A Sneddon Announce Major Enforcement Action Against Nations Largest Nursing Home Chain, (August 1, 2002)available at ca.gov/newsalerts/release.php?id=973&...17, 18 Press Release, Nursing Home Corporation Pleads Guilty to Felony Medicaid Fraud, (Jan. 7, 2010), available at releases 2010 /Cathedrad_Rock _Nursing_ Homes_Pleads_Guilty...15 Report of Questions of Law Pursuant to Mass.R. Crim.P. 34 (docketed on July 28, 2009)...4 Vernon Smith, et al., Kaiser Commission on Medicaid and the Uninsured, Headed for a Crunch: An Update on Medicaid Spending, Coverage and Policy Heading into an Economic Downturn: Results from a 50- State Medicaid Budget Survey for State Fiscal Years 2008 and 2009 (2008), available at /7815.pdf...9 U.S. Gov t Accountability Office, GAO , Nursing Homes: More Can Be Done to Protect Residents from Abuse (2002), available at gov/new.items /d02312.pdf...10 iv

6 U.S. Gov t Accountability Office, GAO , Nursing Homes: Efforts to Strengthen Federal Enforcement Have Not Deterred Some Homes from Repeatedly Harming Residents (2007), available at 8 U.S. Gov t Accountability Office, GAO , Nursing Homes: Federal Monitoring Surveys Demonstrate Continued Understatement of Serious Care Problems and CMS Oversight Weaknesses (2008), available at d08517.pdf...9 v

7 STATEMENTS OF INTEREST AARP AARP is a nonpartisan, nonprofit membership organization dedicated to representing the needs and interests of people age 50 and older. AARP s members include residents of nursing homes and other long-term care facilities in Massachusetts and elsewhere, their spouses, and other relatives. AARP supports enactment and enforcement of laws that ensure that nursing home residents are protected from abuse and neglect. National Consumer Voice for Quality Long-Term Care (NCCNHR) The National Consumer Voice for Quality Long- Term Care is a national organization of individuals and community groups that advocates for quality for people with long-term care needs, with a particular focus on ensuring adequate staffing and raising standards related to the provision of care. NCCNHR provides information and leadership on federal and state regulatory and legislative policy development and models and strategies to improve care and life for residents of long-term care facilities.

8 The Disability Law Center (DLC) DLC, a private nonprofit organization, is Massachusetts designated Protection and Advocacy system ( P&A ) for people with disabilities, pursuant to federal statutory authority. See, e.g., 42 U.S.C (people with developmental disabilities), 42 U.S.C (people with mental illness) and 29 U.S.C. 794e (other persons with disabilities). DLC s core mission involves advocacy on issues of abuse and neglect. P&A agencies have legal authority to monitor and investigate conditions in a wide variety of institutions, including nursing homes. Center for Public Representation The Center for Public Representation (the Center) is a national public interest law firm with offices in Northampton and Newton that advocates for the rights of individuals with disabilities, including those in nursing homes and other staffed facilities and programs. The Center represents the plaintiffs in two class actions alleging that individuals with disabilities have been unnecessarily placed in nursing homes. Rolland v. Cellucci, 191 F.R.D. 3 (D.Mass. 2

9 2000) (Order Approving Settlement Agreement) (class of individuals with mental retardation) and Hutchinson v. Patrick, C.A. No. 07-cv MAP (class of individuals with brain injuries). For more than twenty years, the Center and DLC have advocated in Massachusetts for increased protections for their clients who are victims of crime. They have partnered with Massachusetts state agencies to increase awareness of the ability of people with disabilities to assist and participate in the arrest and prosecution of their abusers. ISSUES PRESENTED 1) May a corporation be found guilty of involuntary manslaughter under General Laws chapter 265 section 13 based on a theory of collective knowledge and conduct of multiple of its employees, in the absence of one specific employee who is criminally liable for the commission of that crime? 2) May a corporation be found guilty of neglect of a resident of its long term care facility under General Laws chapter 265 section 38 based upon a theory of collective knowledge and conduct of multiple of its employees, in the absence of one specific 3

10 employee who is criminally liable for the commission of that crime? Report of Questions of Law Pursuant to Mass.R.Crim.P. 34 (docketed on July 28, 2009). SUMMARY OF ARGUMENT Federal and state regulatory enforcement efforts are inadequate to address abuse and neglect problems in nursing homes as demonstrated by the fact that many nursing facilities cited for these issues continue practices that harm, and sometimes kill, residents. Federal government and health care industry representatives have agreed that improving health care quality depends in part on holding nursing home chains and other health care corporations accountable for their company s failure to comply with its own quality assurance systems. For the past decade, prosecutors around the country have brought criminal actions against nursing home corporations to protect victims of abuse and neglect as part of systemic reform efforts that usually include both criminal and civil cases. 4

11 I. NURSING HOMES MUST BE HELD ACCOUNTABLE IF THEY PROVIDE ABUSIVE OR NEGLECTFUL CARE. A. The Regulatory Enforcement Process is Inadequate to Protect Nursing Home Residents from Abuse and Neglect. Nursing home residents all too often are subjected to abuse and neglect while in the care of their nursing home. See e.g. Brian K. Payne & Randy R. Gainey, The Criminal Justice Response to Elder Abuse in Nursing Homes: A Routine Activities Perspective, 7(3) Western Criminology Review, 67 (2006) (estimating the incidence of elder abuse to range from 500,000 to two million cases a year). Federal and state regulatory enforcement efforts are inadequate to remedy the problem as demonstrated by the fact that many nursing facilities cited for abuse and neglect continue practices that harm, and sometimes kill, residents. U.S. Gov t Accountability Office, GAO , Nursing Homes: Efforts to Strengthen Federal Enforcement Have Not Deterred Some Homes from Repeatedly Harming Residents at 68 (2007), [hereinafter GAO Nursing Home Federal Enforcement Report], available at d07241.pdf. 5

12 Nursing homes must comply with Omnibus Budget Reconciliation Act (OBRA) of 1987 and its implementing regulations, which set forth minimum standards of care for long-term care facilities that receive federal funding. 42 U.S.C. 1395i-3, 1396r; 42 CFR 483, et seq. In 2007, more than 90 percent of nursing homes in the country were cited for violations of federal health and safety standards. For-profit homes like those run by Life Care Centers of America, Inc. were more likely to have problems than other types of nursing homes. Dept. of Health and Human Services, Office of Inspector General, OEI , Memorandum Rept.: Trends in Nursing Home Deficiencies and Complaints at 1 (Sept. 2008) [hereinafter OIG Report], available at gov/oei/reports/oei pdf. About 17 percent of nursing homes had deficiencies that caused actual harm or immediate jeopardy to patients. OIG Report at 9. The OIG found that the number of nursing homes that were cited for the most serious deficiencies, referred to as immediate jeopardy, has increased over the last several years, particularly in for- 6

13 profit and multi-facility nursing home chains. Id. at The OIG report found that about two-thirds of nursing homes are owned by for-profit companies, while 27 percent are owned by nonprofit organizations and 6 percent by government entities. Id. at 7. The OIG found that 94 percent of for-profit nursing homes were cited for deficiencies in 2007, compared with 88 percent of nonprofit homes and 91 percent of government homes. Id. at 6. In 2007, for-profit nursing homes averaged 7.6 deficiencies per home, while not-for-profit and government homes averaged 5.7 and 6.3, respectively. Id. at 7. The Director of Health Care for the United States Government Accountability Office (GAO) testified before Congress that [a] small but significant proportion of nursing homes nationwide continue to experience quality-of-care problems as evidenced by the almost 1 in 5 nursing homes nationwide that were cited for serious deficiencies in These 1 Nursing Home reform: Continued Attention is Needed to Improve Quality of Care in Small But Significant Share of Homes Before the S. Special Comm. on Aging, 110th Cong. at 9 (2007) (statement of Kathryn G. Allen, Director, Health Care, GAO) available at 7

14 are deficiencies that cause actual harm or place residents in immediate jeopardy. 2 In addition, [d]espite CMS s [Centers for Medicare & Medicaid Services] efforts to strengthen federal enforcement policy, it has not deterred some homes from repeatedly harming residents.... [S]anctions may have induced only temporary compliance in these homes because surveyors found that many of the homes with implemented sanctions were again out of compliance on subsequent surveys. 3 Id. at A GAO report on federal enforcement efforts published in 2007 states almost half of the homes we reviewed homes with prior serious quality problems continued to cycle in and out of compliance, continuing to harm residents. GAO Nursing Home Federal Enforcement Report at 26. The types of deficiencies found in the homes that cycled in and out of compliance included inadequate 2 Id. at 3. 3 Every nursing home that receives Medicare or Medicaid payments must undergo a standard state survey not less than once every fifteen months. CMS uses federal comparative surveys, which are conducted in at least five percent of state-surveyed nursing homes in each state, to ensure the quality of state surveys. 8

15 treatment or prevention of pressure sores, resident abuse, medication errors, and employing convicted abusers. Id. at 68. The scope of the problem is greater than these federal reports show, as state surveys of compliance with federal quality standards repeatedly understate serious care problems. U.S. Gov t Accountability Office, GAO , Nursing Homes: Federal Monitoring Surveys Demonstrate Continued Understatement of Serious Care Problems and CMS Oversight Weaknesses, at 11 (2008), available at items/d08517.pdf (noting that [f]rom fiscal year 2002 through 2007, about 15 percent of federal comparative surveys nationwide identified state surveys that failed to cite at least one deficiency at the most serious levels of noncompliance the actual harm and immediate jeopardy levels... ). B. Nursing Home Corporations are Responsible for the Safety of Their Residents. In recent years, the Office of Inspector General for the U.S. Department of Health and Human Services and health care industry representatives have agreed that improving health care quality depends in part on holding nursing home chains and other health care corporations 9

16 accountable for their company s failure to comply with quality assurance systems. Dept. of Health and Human Services and Am. Health Lawyers Assn., Corporate Responsibility and Corporate Compliance: A Resource for Health Care Boards of Directors [hereinafter Corporate Responsibility Report], available at /040203CorpRespRsceGuide.pdf; and Driving for Quality in Long Term Care: A Board of Directors Dashboard: Government-Industry Roundtable, A Report on the Office of Inspector General and Health Care Compliance Association Roundtable on Long-Term Care Board of Director s Oversight of Quality of Care, available at ble pdf. The industry representatives and the government warn that [o]ver the last decade, the risks associated with non-compliance have grown dramatically. The government has dedicated substantial resources, including the addition of criminal investigators and prosecutors, to respond to health care fraud and abuse. Corporate Responsibility Report at 3. The report goes on to explain that, as a consequence of a criminal conviction, the convicted person or entity is excluded 10

17 from participation in federal health programs. Id. Exclusion has a profound effect on a health care entity because those excluded will not receive payment under Medicare, Medicaid or other federal health care programs for items or services provided to program beneficiaries. Id. at 3-4; see also 42 U.S.C. 1320a- 7(a) (requiring mandatory exclusion of an individual or entity convicted of a health-care related crime). The impact of exclusion is catastrophic for long-term care provider since Medicaid alone pays for more than half of all nursing home care in the country. 4 II. COURTS NATIONWIDE RELY ON THE COLLECTIVE KNOWLEDGE DOCTRINE AND SIMILAR THEORIES TO HOLD CORPORATIONS ACCOUNTABLE Some state and federal prosecutors have brought abuse and neglect cases against individual nursing facilities and corporations as part of systemic reform efforts that generally included both criminal and civil cases. The remedies for such cases often include chainwide quality improvements requirements to protect all the 4 Vernon Smith, et al., Kaiser Commission on Medicaid and the Uninsured, Headed for a Crunch: An Update on Medicaid Spending, Coverage and Policy Heading into an Economic Downturn: Results from a 50-State Medicaid Budget Survey for State Fiscal Years 2008 and 2009 (2008), available at /upload /7815.pdf. 11

18 residents served by that corporation. These cases rely on a variety of legal theories that include, but are not limited to, the collective knowledge theory. A. The Collective Knowledge Theory Prevents A Corporation from Avoiding Culpability If It Purposefully Ignores Warnings by Its Employees and Fails to Implement Its Own Internal Safeguards. Historically, the collective knowledge doctrine was derived from the concept that a corporation can be held criminally liable for the acts or omissions of its agents acting within the scope of their employment. 1 Wayne Lafave & Austin W. Scott, Substantive Crim. Law 3.10(a), at 361, 3.10(b), at 364 (1986). Regardless of the position held by the agent of the corporation, actions and knowledge of the agent may be imputed to the corporation whether or not corporate officials knew or participated in the crime. For example, in United States v. T.I.M.E.-D.C., Inc., the court found an interstate motor carrier corporation guilty of violating the Interstate Commerce Act for knowingly and willfully permitting drivers to operate their vehicles while their ability to drive safely was impaired by illness. 381 F.Supp. 730 (W.D. Va. 1974). The court found that the 12

19 corporation had the requisite knowledge to support the conviction in that: [A] corporation cannot plead innocence by asserting that the information obtained by several employees was not acquired by any one individual employee who would have then comprehended its full import. Rather, the corporation is considered to have acquired collective knowledge of its employees and is held responsible for their failure to act accordingly. Id. at 738. The court in T.I.M.E.-D.C., Inc. points to several cases that stand for the proposition that a corporate defendant is deemed to have had knowledge of a violation if the means were present through which the company could have detected the infractions. Id. at 739, citing Steere Tank Lines, Inc. v. United States, 330 F.2d 719 (5th Cir. 1963); Riss & Co. v. United States, 262 F.2d 245 (8th Cir. 1958); and United States v. Sawyer Transport, Inc., 337 F.Supp. 29 (D.Minn. 1971). See also People v. Am. Med. Ctrs. of Mich., Ltd., 324 N.W.2d 782, 793 (Mich. App. 1982) (upholding a jury instruction regarding corporate liability by explaining that the only way a corporation can act is through its employees and agents and therefore [t]he combined knowledge of 13

20 those employees may be imputed to the corporation to find it liable for fraudulent acts. ). Similarly, in Copeland Labs. Co. v. Gen. Motors Corp., 36 F.Supp. 755, 762 (E.D. Mich. 1941), the imputed collective knowledge doctrine was articulated as follows: When a person representing a corporation is doing a thing which is in connection with and pertinent to that part of the corporation business which he is employed, authorized or selected to do, then that which is learned or done by that person pursuant thereto is in the knowledge of the corporation. The knowledge possessed by a corporation about a particular thing is the sum total of all the knowledge which its officers and agents, who are authorized and charged with the doing of the particular thing acquire, while acting under and within the scope of their authority. If a corporation is responsible for the care of vulnerable people, it must be held accountable for the actions and inactions of its employees and it must monitor its own internal safeguards. The collective knowledge of the employees who are charged with the responsibility of implementing the corporation s systems of care can be imputed to the corporation because it is the corporation s responsibility to have 14

21 determined whether its employees were acting in compliance with the law. B. Nursing Home Corporations Have Been Convicted Based Upon the Knowledge of Employees. Courts nationwide have convicted long-term care corporations for the abuse or neglect of residents under theories that depend upon the aggregate knowledge of the corporation s employees. It is appropriate to use the aggregated knowledge of these employees to impute knowledge to the corporate entity for crimes -- particularly in long-term care settings in which the consequences of poor corporate oversight are so dire. In Missouri, federal and state prosecutors recently completed a global settlement of criminal and civil claims in United States v. Cathedral Rock Corp., Case No. 4:10CR2 CAS (E.D. Mo. Jan. 7, 2010); see also Press Release, Nursing Home Corporation Pleads Guilty to Felony Medicaid Fraud, (Jan. 7, 2010), available at /Cathedrad_Rock_ Nursing_Homes_Pleads_Guilty/. As part of the resolution of that matter, the corporation s six Missouri-based nursing facilities entered criminal 15

22 pleas and were consequently excluded from participation in federal health care programs pursuant to 42 U.S.C. 1320a-7(a). In Missouri v. Cmty. Alternatives Mo., 267 S.W.3d 735 (Mo. App. 2008), the court upheld the conviction of a corporation that failed through the actions and inaction of its nursing facility staff to provide necessary care to a resident who subsequently died as a result of that failure. The court found that the management staff person committed acts or knowingly tolerated conduct of others that presented an imminent danger to the health, safety, and welfare of the deceased, acted on behalf of the defendant corporation and that her actions were done to further defendant's business or interest. Id. at 746. The court pointed out that, [i]f the act is fairly and naturally incident to the employer's business although mistakenly or ill advisedly done, and did not arise wholly from some external, independent or personal motive, it is done while engaged in the employer's business." Id. In California, several nursing home corporations and facilities have been convicted of criminal 16

23 negligence that resulted in the death of vulnerable residents. These convictions often have been part of a larger strategy by the state prosecutors to address systemic quality of care failures that jeopardize the health and life of remaining residents in a nursing home chain. For example, Beverly-Enterprises, the nation s largest nursing home chain at that time, was convicted in 2001 for the felony elder abuse of a 102 year old resident who died after suffering from severely infected bed sores due to poor nursing care and another resident who died from improper tube feeding procedures. Press Release: Attorney General Lockyer, Santa Barbara D.A Sneddon Announce Major Enforcement Action Against Nations Largest Nursing Home Chain, (August 1, 2002) [hereinafter Sneddon Press Release], available at newsalerts/release.php?id=973&; see also Marie-Therese Connolly, Federal Law Enforcement in Long Term Care, 4 J. Health Care L. & Policy 230, 276 (2002)[hereinafter Federal Law Enforcement in Long Term Care]. The criminal conviction was part of global settlements with both California and the United States that required, among other things, that the company 17

24 increase its staff training, achieve adequate staffing levels, place greater attention on individual care needs, develop quality procedures at each facility and establish a corporate level compliance program to monitor and ensure that state and federal quality of care standards were met. Sneedon Press Release at 1. The state and federal governments worked to ensure that the residents would not be harmed from a sudden closure of Beverly s facilities as a result of the Office of Inspector General s imposition of a mandatory exclusion resulting from the conviction. Federal Law Enforcement in Long Term Care at 277. The government crafted a divestiture agreement with Beverly to divest itself of facilities, before the exclusion took effect. Id. In a similar case in California, Pleasant Care of Northern California, Inc., was convicted of 6 counts of abuse and neglect of elderly and dependent adults. California v. Pleasant Care Corporation, et al., CR (Napa Co. Sup. Ct. of Cal. Mar. 9, 2006) (on file at AARP). The resolution of the criminal case was part of a comprehensive settlement between the state and Pleasant Care Corp., Inc., the umbrella 18

25 company of the subsidiary that was convicted. The settlement required the chain to make extensive reforms to all 30 of its nursing facilities, similar to the reforms in the Beverly settlement described above. Press Release: Attorney General Lockyer Announces Enforcement Action Against State's Second Largest Nursing Home Chain: Pleasant Care to Pay $1 Million in Fines and Immediately Improve Resident Care, (March 8, 2006), available at newsalerts/release.php?id=1268&. In 2008, the Attorney General s office in Illinois obtained conviction of Forest Park, L.L.C., for gross neglect of a long term care resident which resulted in her death. The facility, nursing home management company, and facility medical director were each indicted and the facility was the first to enter into a plea agreement. Illinois v. Garti, Forest Park L.L.C. and Care Ctrs., Inc., CR (Cir. Ct. of Cook Co. Ill. Nov. 17, 2008) (on file at AARP). The facility s plea indicates that the medical director was a managerial agent of the facility and that he grossly neglected the victim by failing to provide her with adequate medical care for her wounds and failed 19

26 to assess her wounds, both of which resulted in her physical deterioration. Plea Agreement, Illinois v. Garti, Forest Park L.L.C. and Care Ctrs., Inc., CR 20832, (Cir. Ct. of Cook Co. Ill. Nov. 14, 2008) (on file at AARP), at 2. Each of the prosecutions described above involved the conviction of a corporate entity that was later excluded from participating in federal health care programs or forced to be sold under government oversight. Prosecutors must have the opportunity to resolve such cases by relying upon the aggregated knowledge of the corporation s staff. 20

27 CONCLUSION For all of the foregoing reasons, the reported questions should be answered in the affirmative. Respectfully submitted, Kelly Bagby AARP Foundation Litigation Michael Schuster AARP 601 E Street, NW Washington, DC (202) Counsel for Amici Curiae 21

28 CERTIFICATE OF COMPLIANCE I, Kelly Bagby, hereby certify pursuant to Mass. R. App. P. 16 (k) that the instant brief complies with the rules of court pertaining to the filing of briefs, including, but not limited to: Mass. R. App.P. 16 (a)(6),(e),( f), and(h), 18, and 20. Kelly Bagby 22

29 CERTIFICATE OF SERVICE I, Kelly Bagby, hereby certify under the pains and penalties of perjury that on this 15th day of February, 2010, copies of the Brief Amici Curiae of AARP, NCCNHR, the Disability Law Center and the Center for Public Representation in Support of Appellee were served via first class mail upon each of the individuals below: Randall E. Ravitz Assistant Attorney General Criminal Bureau One Ashburton Place Boston, MA R. Matthew Rickman Libby Hoopes, P.C. 175 Federal Street, Suite 800 Boston, MA Don Howarth Howarth and Smith 523 West Sixth Street, Suite 728 Los Angeles, CA L. Scott Harshbarger Proskauer Rose LLP One International Place Boston, MA Kelly Bagby 23