Judge rules in favor of receivership for Benjamin nursing home

A Suffolk County Superior Court judge ruled Wednesday to put the Edgar Benjamin Healthcare Center into receivership after community members took matters into their own hands in an attempt to stop the center’s pending closure.

In a lawsuit filed March 28, two family members of residents at the historically Black nursing home officially pushed for receivership of the Mission Hill facility, after petitions for the attorney general’s office and the Department of Public Health — the two state entities designated to seek a receiver — did not initially lead to official action.

However, days before the case’s April 2 hearing, the attorney general’s office and DPH voiced their support for the action, following months of declining to petition the court for receivership. Receivership would lead to a state takeover and the ouster of the Edgar Benjamin’s controversial management team but not necessarily ensure the center’s survival.

The receivership case was heard in the Suffolk County Superior Court. The day after the civil hearing, Judge Katie Rayburn ruled that an emergency exists at the Edgar Benjamin — the standard in state law required to appoint a receiver — and approved the petition that will put attorney Joseph Feaster in charge of the facility.

When residents and staff at the center learned a receiver had been appointed, there was clapping and hugging throughout the building. The staff was ecstatic and some people were brought to tears, said Leslie Henderson, the center’s director of admissions.

“It’s like a dark cloud over you, and you’re in the midst of this storm and you don’t see your way out and then it’s like an awakening,” Henderson said.

She looked to the center’s almost 100-year history and said she’s hopeful the appointment of a receiver will offer a chance for that legacy to go on.

Oren Sellstrom, the attorney who represented the two guardians of Edgar Benjamin residents, said he is very pleased with the ruling.

“We are gratified that the judge recognized the emergency nature of the situation and acted quickly to appoint a receiver to stabilize the organization and ensure the safety and wellbeing of the patients and residents,” he said.

The suit for receivership comes after the Edgar Benjamin’s administration announced in February its intent to close the facility, which currently serves about 70 residents, most of whom are people of color.

Ahead of the hearing, former state Sen. Dianne Wilkerson said she was “delighted” the case is being heard in court. Supporters hope that the receivership will offer a chance for new leadership to try to get the facility back on track.

“The answer can’t be to throw the whole baby out,” Wilkerson said. “You’ve got to run some new bathwater.”

In a letter to families Feb. 13, Tony Francis, executive director of the center, said the closure was due to “insurmountable financial difficulties.”

Since Francis took over as director in 2014, his salary rose by more than four times to nearly $628,000 in 2021, according to financial records filed with the IRS.

In its history, the Edgar Benjamin has twice before been put under receivership, and both times, the change in leadership allowed the center to bounce back and continue operations.

“It’s critical that the person at the helm be someone who can manage finances properly and steer the institution in the right direction,” said Sellstrom, who serves as litigation director at Lawyers for Civil Rights.

In the filing, attorneys from Lawyers for Civil Rights pointed to inadequate supplies, staff shortages and center mismanagement in their lawsuit filed to ask the Massachusetts Superior Court to grant receivership.

Francis and the facility declined to comment.

According to the suit, residents at the Benjamin have faced declining care. As of 2020, the center had a doctor on site. Now the doctor comes in only on Saturdays and doesn’t meet with residents. The facility’s dietician doesn’t come in regularly and is allowed to work remotely. Risk assessment meetings with the doctor, dietitian and nursing staff, which are supposed to happen weekly, haven’t occurred since January, even as patients have experienced significant weight loss.

Affidavits from staff at the facility paint a picture of limited supplies and equipment. As of February, the center’s supply of colostomy bags ran out and staff had to wrap a resident in a towel before they could borrow some from another facility. About 10 call lights — used to signal when a resident is having an emergency or needs help — were nonfunctional.

In response to the allegations, during the hearing, the attorney representing the Edgar Benjamin pointed to an affidavit from Stephen Davis, director of the state’s Department of Facility Licensure and Certification, describing a visit to the center at which time, he found no shortages of supplies.

During the same visit, staff said that was not always the case. For instance, the cook said that budget issues sometimes lead to insufficient food supplies.

According to the affidavits, vendors who used to work with the facility have cut ties due to non-payment. This has left residents with broken wheelchairs and equipment, like the lifts used to help get heavier residents out of bed. Residents can’t be weighed correctly because the scales used are inaccurate and uncalibrated, and computers at the facility are left vulnerable to cyberattacks and hacking without updates.

The center’s van, used to transport residents to medical appointments, hasn’t been used in months because the insurance hasn’t been paid on it, said Henderson in her affidavit.

Utilities, too, have gone unpaid, resulting in a past-due water bill of $175,000 and an electric bill of $339,000 as of February.

The facility failed to pay staff paychecks in November 2023 and again in December — with Francis citing financial issues both times. In December, staff also started receiving paper checks after the payroll provider stopped processing paychecks because of nonpayment. When several employees attempted to deposit their checks, the checks bounced.

Francis allegedly said he would pay for banking fees and late fees resulting from the bounced checks, said Kathy Blicker, who works in accounts receivable at the Edgar Benjamin, in her affidavit. To her knowledge, that hasn’t happened.

During periods when staff went unpaid, the center saw decreased staffing numbers as nurses called out of work. According to an affidavit from Marise Colsoul, the Edgar Benjamin’s director of nursing, understaffing often left each of the three units with one nurse only, and nurses sometimes had to work double shifts.

Blicker said that when the facility was especially understaffed, she and other office staff would go in on weekends to perform tasks that would normally be done by a certified nursing assistant.

Following the filing of the lawsuit, staff again went unpaid as checks bounced Friday. In response, two nurses called out from the Saturday night shift, leaving the facility understaffed.

During the hearing, an attorney for the state said the most recent round of bounced checks is what pushed both the DPH and the attorney general’s office to sign onto the petition for receivership.

If appointed, they said, the receiver could ensure payment of staff and care of residents while also determining if the closure plan should continue or if the facility could be kept open.

The lawsuit brings into question the financial hardship the nursing home is allegedly facing.

According to Blicker, the facility continues to receive significant income and revenue.

Monthly, it receives about $720,000 from sources like private and public insurance, as well as an additional $75,000 in rental income from Roxbury Prep’s Mission Hill Campus, which rents the building’s third floor. In 2021, the facility received over $1.6 million in Paycheck Protection Program support from the federal government, according to the federal Pandemic Oversight program.

Royal Bolling Jr., who previously served on the board of directors at the Edgar Benjamin until he was removed after questioning financial decisions at the facility, said that during his tenure at the organization, the center frequently faced financial challenges, but they were never insurmountable.

Sellstrom said there’s a series of red flags that indicate the need for a change in leadership, including a rapidly shrinking board that went from about 12 individuals prior to Francis’s tenure to three, as of March 21.

“For a nonprofit organization like the Benjamin, the board of directors are key to maintaining accountability and transparency,” Sellstrom said.

Staff at the Edgar Benjamin alleged that any board members who raised issues about management of the facility were removed, and that no board member, save for Francis, who serves as president, has set foot in the building.

Sellstrom also pointed to a “highly unorthodox” interchange of Francis’s personal money to pay for things like payroll with a 12% interest rate.

A series of request forms for checks cut by the facility in 2023 to reimburse Francis for personal money used to pay the Edgar Benjamin’s payroll and other expenses show a total of at least $660,000 given back to Francis, including interest.

Separately, bank statements obtained by the Banner show payments of large bills on an American Express card for Francis. In March 2023, the bill was $100,000. In July, it was $85,000.

Francis’ alleged financial mismanagement came under fire at a public hearing on March 26, held by the Department of Public Health.

“If we’re in such financial distress, and if we’re still able to pay a salary in excess of $625,000, maybe you are the financial distress,” said Henderson, the admissions director.

At that hearing on the closure process, which took place at the Thelma D. Burns Building in Roxbury, a crowd of residents, staff, guardians and community members voiced strong support for Francis to step down or be removed from his role, and for a receiver, if appointed, to figure out how to keep the facility running.

That public hearing is part of a process to inform the department’s response to the Edgar Benjamin’s closure plan. It has until April 9 to approve or provide comments on the plan.

Sellstrom said the community’s goal is to keep the facility open but that, once appointed, a receiver would be able to assess all options and determine if that is feasible.

“The community is strongly behind keeping the Benjamin as the premier institution that it is in the community,” Sellstrom said. “We believe that with the appointment of a receiver that will be the first order of business, to examine how to make that a reality.”

Specifics around what happens next and when remain to be seen.  As of Wednesday, when the ruling immediately went into effect, the appointed receiver Feaster has the authority to manage and operate the facility. Sellstrom said he expects the top priority to be to ensure safety and stability for residents and staff. After that, it will be up to the receiver to determine if the closure goes on.

Ahead of the ruling, Feaster said he didn’t know much about what the circumstances are at the Edgar Benjamin, but said he believes he can bring a sense of order to the process, given his career as an attorney, his longstanding community connections, and a previous five-year stint as a receiver at the Roxbury Comprehensive Community Health Center.

In 2013, Feaster was tapped by then-Attorney General Martha Coakley to take over the Roxbury health center and guide it through a tumultuous closure, helping to transition patients to other facilities and assess the financial situation that had led to that health center’s collapse.

Bolling said that if a receiver were appointed, that person would be one part of the puzzle but would have to turn to someone with nursing home administration expertise to keep the facility open long-term.

Feaster said he would want to be able to provide another set of eyes on the situation.

“You want to look at whether you can stabilize the organization such that it can continue,” he said “That’s the threshold determination, in my view.”