Jessica Karmasek Aug. 25, 2015, 9:31am


SANTA FE (Legal Newsline) - A nursing home being sued by New Mexico Attorney General Hector Balderas is now suing the Attorney General’s Office, arguing the office has violated the state’s public records laws.

The Albuquerque Journal reported last week that Bloomfield Nursing Operations LLC filed a lawsuit against the office in a state district court in Albuquerque.

According to the newspaper, the nursing home’s lawsuit alleges that Balderas’ office has wrongly denied its requests for certain documents or hasn’t provided them under the standards required by New Mexico’s Inspection of Public Records Act, or IPRA.

In particular, the lawsuit seeks communications between Balderas’ office and two out-of-state law firms -- Cohen Milstein Sellers & Toll PLLC and Marks Balette & Giessel PC.

James Hallinan, a spokesman for Balderas, said the office has fully complied with state law and has released more than 1,000 documents at the nursing home’s request.

However, Hallinan said some records were being withheld because they are privileged or they contain the identity of an informer.

“The nursing home’s requests for the documents are an attempt to turn attention away from substandard care and appalling conditions for vulnerable nursing home residents in New Mexico,” the spokesman said in an emailed statement to Legal Newsline.

Bloomfield is one of seven nursing homes or skilled nursing facilities the Attorney General’s Office is suing. The office alleges in the lawsuit, originally filed by former Attorney General Gary King last year, that the facilities failed to provide basic services to its residents.

Balderas, who took office earlier this year, decided to proceed with the lawsuit. In April, he filed an amended complaint in the state’s First Judicial District Court.

The attorney general claims the mistreatment started on July 1, 2007 and continues to the present. The lawsuit also contends the facilities limited the nursing staff on duty, resulting in them not providing basic care to residents.

“While the intent may have been to control costs, the effect on resident care was dramatic,” the complaint states.

The attorney general argues the facilities essentially made false claims on state and federal assessments about the level of care it was able to provide.

Bloomfield isn’t the only defendant in the lawsuit to push back.

Preferred Care, another defendant, has filed multiple motions to dismiss, arguing the attorney general’s claims are based on a simulation that has never been used by the state Department of Health, adopted in any court or recognized in the health-care community.

It, too, is questioning the involvement of the outside law firms.

Preferred Care goes as far as to say the action was filed at the urging of Cohen Milstein, a plaintiffs law firm known for targeting long-term care facilities.

Since 2010, the firm has donated more than $70,000 to 16 different state attorneys general campaigns, according to a search of FollowTheMoney.org. Of those candidates, 13 would go on to win their state’s general election.

Some of the firm’s largest donations went to: Missouri Attorney General Chris Koster, $5,000; Oregon Attorney General Ellen Rosenblum, $10,000; Pennsylvania Attorney General Kathleen Kane, $10,000; and Balderas, $5,000.

Despite the firm’s donation -- and additional donations from individual firm attorneys -- Balderas claims he is committed to “greater transparency” in appointing outside counsel.

Balderas took office in January, taking over for King, who was featured prominently in a New York Times article published in December showing that more attorneys general are hiring private law firms to file lawsuits on behalf of their states.

After a three-month, office-wide review of all pending litigation involving outside counsel -- seen as a response to the Times article -- Balderas announced in March that his office now will seek bids from law firms and appoint a senior staff member to oversee the litigation.

“Pursuant to my statutory authority and responsibilities regarding litigation on behalf of the state, this office will adhere strictly to an improved process regarding the use of outside counsel to ensure accountability and transparency,” he said at the time, adding that such cases must be “meritorious” and in the best interest of residents.

The attorney general said he also is committed to making all documents pertinent to request-for-proposal processes -- including the total payment to outside counsel made by the Attorney General’s Office -- publicly available.

But the Preferred Care defendants have called the State’s action a “textbook case” of lawyers depositing money in the campaign coffers of attorneys general and then pushing them to file questionable claims against in-state businesses.

“It’s an egregious display of greed and opportunism that moved one former attorney general of Massachusetts to say it ‘threatens the perception of integrity and professionalism of the office’… of the attorney general,” said Mike Gavin, president of Preferred Care Partners Management Group.

Balderas has defended his decision to renew the lawsuit.

“Bilking taxpayers for inadequate care and denying helpless and vulnerable residents basic services will not be tolerated,” he told Legal Newsline in June.

“Our office will continue to aggressively protect New Mexico’s taxpayers and our most vulnerable populations.”

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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