Home Health Owner Sues State Over ‘Campaign of Harassment’

The Indiana State Department of Health (ISDH) has embarked on a “campaign of harassment and retaliation” that has placed Nightingale Home Healthcare Inc. in jeopardy, the owner of the large home health business has alleged in a federal lawsuit.

The harassment began after a complaint Dev A. Brar filed with ISDH when one of its employees left “racially tinged” remarks on his voicemail, Brar said. Brar, the owner of Nightingale Home Healthcare Inc., is a physician licensed in India who currently resides in Hamilton County, Indiana.

The named defendants are Kelly Hemmelgarn, the program director within the acute care division of ISDH; Randall Snyder, the director of the division of acute care at ISDH; Jerome Adams, the commissioner of ISDH; and U.S. Department of Health and Human Services Secretary Sylvia Burwell, the complaint for damages and injunctive relief states.

The defendants, particularly Snyder and Hemmelgarn, abused the survey process to subject Brar and his companies—Nightingale Home Healthcare Inc. and Nightingale Hospice Care Inc.—to a continuing campaign of discrimination, harassment, intimidation and retaliation based on race, the plaintiffs’ exercise of their First Amendment rights, and personal disapproval or dislike of Brar and his companies, the complaint alleges.

The campaign of harassment resulted in an effort by the defendants late in 2015 to terminate Nightingale Home Healthcare’s Medicare status, which would shut the agency down and deprive 900 patients of medical care, the complaint says. The home health agency filed for bankruptcy in December 2015, the Indianapolis Business Journal reported.

Hemmelgarn and Snyder subjected Nightingale to numerous “complaint” surveys, almost all of which determined that the complaints were not substantiated, after Brar complained about the racially tinged remarks to higher level officials at ISDH, the complaint says.

Nightingale was treated differently compared with similarly situated providers, with no rational basis to do so, the complaint adds. Specifically, the surveyors were antagonistic, adversarial and bullying, falsely accusing Nightingale’s employees of lying and falsifying or altering documents, resulting in “extraordinary distress” to Nightingale’s employees.

Hemmelgarn and Snyder also performed actions that are “extraordinary for government officials at their level of seniority,” the complaint states. Miller, acting under the direction of Hemmelgarn and Snyder, allegedly conducted an unlawful search and seizure by entering into Nightingale Hospice Care, Inc.’s closed former business premises in Fort Wayne, Indiana—which were no longer open to the public—and rooting through boxes, desks and filing cabinets in a general search for which there was neither probable cause nor a warrant.

Additionally, both Snyder and Hemmelgarn began the surveys with the preconceived belief that Nightingale’s Medicare and Medicaid status and provider agreements should be terminated and its license to offer home health care services should be revoked, the complaint says. Consequently, Snyder and Hemmelgarn allegedly instructed surveyors acting under their direction to discover deficiencies and instances of immediate jeopardy that would justify such actions.

The surveyors also allegedly told Nightingale “we are going to shut you down” before the survey was even completed.

“Allegations in a civil lawsuit are the opinion of the plaintiffs’ lawyers filing them and may be refuted in court,” Bryan Corbin, a spokesman for Indiana’s Attorney General, told the Indianapolis Business Journal. “The plaintiffs’ lawyers have the burden of proof, not the government defendants.”

Written by Mary Kate Nelson