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Nursing home operators went to D.A. with request

BY MICHAEL AMON AND RIDGELY OCHS | michael.amon@newsday.com
ridgely.ochs@newsday.com

September 23, 2007

Suffolk District Attorney Thomas Spota and three detectives sat in his Hauppauge office and listened to a pitch for an unusual investigation.

It was May 31, 2006. Bent Philipson and Benjamin Landa, operators of the state's largest for-profit nursing home group, and their lawyer Howard Fensterman, wanted authorities to investigate 10 Filipino nurses who abruptly resigned the month before from their Smithtown nursing home.

Its administrator told Spota the nurses had endangered children on a ventilation unit at Avalon Gardens Rehabilitation and Health Care Center when they quit en masse and without notice.

Fensterman and Spota already knew each other. At a Democratic Party function in 2002, Fensterman said he asked Spota to look into an unsolved homicide on behalf of a client. Spota's office investigated, but the chief suspect committed suicide before charges could be brought.

In December 2003, Fensterman's law firm gave $1,500 to Spota's re-election campaign. "I am a big admirer of Tom Spota," said Fensterman, of Hewlett Harbor.

Following the May 2006 meeting, Spota's office opened an investigation of the nurses, said spokesman Robert Clifford. In March, a Suffolk grand jury handed up a misdemeanor indictment against the nurses for endangering the welfare of children and for conspiracy to break their contracts with their employer.

Legal experts and the assistant district attorney handling the case say the indictment is apparently the first of its kind in the state. It came after the nurses had been cleared five months earlier by the state Education Department's Boards for Nursing and Respiratory Therapy, which regulates nurses. On Wednesday, a judge is expected to rule whether the charges should be dismissed.

Clifford said Spota "meets with all kinds of people ... hears them out, makes a judgment as to whether to pursue their allegation or investigate their concerns," he said, adding that Fensterman "shouldn't be ineligible to receive services from the district attorney because of a campaign contribution."

Joseph Cassilly, president-elect of the National District Attorney's Association, said meetings between prosecutors and campaign contributors present the appearance of an ethical conflict of interest. He said Spota could have avoided any conflict by having an assistant meet with Fensterman.

Fensterman said he went to the Spota's office after he felt frustrated by a lack of progress in a Suffolk police investigation. However, the nursing home waited 19 days after the nurses' April 7 resignations before contacting police.

"I felt the situation was so egregious," said Fensterman said. "that the Police Department did not understand the gravity of what had occurred ."

Suffolk police declined to comment.

The nursing home did not file a report with the state Department of Health, which agency spokesman Jeffrey Hammond said is required under state law for suspected abuse, mistreatment and neglect. A spokesman for SentosaCare said the company decided on advice of counsel to not notify the Health Department

Fensterman criticized the Education Department's investigation. He said he, Landa and Philipson were interviewed about 15 minutes.

Barbara Zittel, head of the Edducation Department's nursing board, defended the probe. "Our investigators are experts -- they are involved in thousands of cases and most of them have had experience as police officers," she said.

In 2006, she said there were 1,350 cases opened against registered nurses; less than 10 percent were dismissed, as the case was against the nurses.

The indictment has angered many in the nursing field.

Barbara Crane, president of the delegate assembly of New York State Nurses Association, said the indictment sets a bad precedent. "Do they think we will stand by and let a nurse go to jail?" she asked.