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Attorney general accused of IPRA violations

SANTA FE – A nursing home being sued by Attorney General Hector Balderas has filed a lawsuit alleging Balderas has violated the state’s public records law by refusing to release communications between his office and two out-of-state law firms working with the AG.



In the lawsuit filed in state District Court in Albuquerque, Bloomfield Nursing Operations LLC alleges Balderas’ office has either improperly denied or partly denied the company’s requests for documents, or has not produced them in a reasonable amount of time as required by the state Inspection of Public Records Act.

The nursing home is one of seven the AG sued last year, alleging that from 2007 to 2012 they failed to deliver adequate care, thereby jeopardizing patients and defrauding the government with their billings.

That lawsuit was highlighted in a New York Times article last year about the growing national trend of plaintiffs’ lawyers teaming up with attorneys general to sue various businesses, with the law firms taking a fee if they win and the state getting the rest.

The AG says in his lawsuit against the nursing homes that they couldn’t have provided the billed-for services, considering their staffing levels. The nursing homes say the analysis of staffing and services the AG relies on in his lawsuit is bogus.

Balderas’ office says it has produced over 1,400 pages of documents in response to requests from the nursing home’s lawyers, and has “fully complied” with state law.

Spokesman James Hallinan said Monday that the requests are an attempt to divert attention from the AG’s litigation “involving the substandard care and appalling conditions for vulnerable nursing home residents in New Mexico.”

Bloomfield Nursing Operations is the former operator of one of the facilities, which are now run by Texas-based Preferred Care Partners Management Group.

Former Attorney General Gary King filed the lawsuit initially, and Balderas decided to proceed with it after he took office in January.

Much of what the nursing home is seeking from the AG relates to the office’s dealings with two firms: Cohen Milstein Sellers & Toll, which has offices in Washington, D.C., and other cities, and Marks Balette & Giessel of Houston. The AG contracted with them to prepare and prosecute the litigation.

The nursing home’s lawsuit says the large number of documents it is seeking includes emails between the AG and Cohen Milstein that haven’t been provided to the nursing home but “were already produced to the New York Times, presumably pursuant to IPRA requests.”

In the December 2014 article in the Times, the newspaper said there is “a flourishing industry that pairs plaintiffs’ lawyers with state attorneys generals to sue companies” for alleged harm to state residents.

The Times reported on King’s email conversations in 2012 with Linda Singer, a former attorney general in the District of Columbia who is now with Cohen Milstein. According to the newspaper, Singer at first proposed that New Mexico sue a Pennsylvania-based chain, but the state ended up suing the Texas-based chain instead, two years later.

Pennsylvania’s AG filed a lawsuit similar to New Mexico’s last month, also in conjunction with Cohen Milstein.

King told the Times that partnering with outside law firms that can pay for an expensive lawsuit upfront is a way to level the playing field on behalf of consumers.

Bloomfield Nursing Operations says it’s entitled to all the public records that are responsive to its request, whether they are held in the AG’s Office or by a private law firm.

And it says even if some of its May requests under IPRA could be considered “burdensome or overly broad,” as the AG contends, the AG has violated IPRA by not producing records “within a reasonable additional period of time” beyond the 15-day deadline.

Among the requested documents: communications with the law firms, their contracts and draft contracts, complaints they drafted, documents related to the analysis of staffing and service, communications with the state Department of Health and the Human Services Department.

In a separate IPRA request, the nursing home also wants the names and interview transcripts of the “Confidential Witnesses” – family members and former staffers – whose allegations about inadequate care are outlined in the AG’s lawsuit.

Balderas’ office, in its response to the IPRA request, said it was releasing some of the records but others were being withheld “as they constitute attorney-client/attorney work product privileged records or contain the identity of an informer.”

Hallinan said the AG’s office “will continue to protect sensitive and confidential victim and witness information in accordance with law.”

Under state law, the Attorney General’s Office is the primary enforcer of compliance with IPRA by public bodies. King suffered an embarrassing court setback when he refused to turn over salary-related records to female attorneys who had sued him for pay inequity and a state District Judge ruled he had violated the law.