Broken Promises from Manila to Mineola; Filipino Nurses Say Company Exploited Them

Michael Amon and Ridgely Ochs
Sept. 24, 2007, p. A6, Part 2 of series
Elmer Jacinto arrived from Manila at Kennedy Airport in November 2005 to pursue a nursing career, a symbol of the Philippines’ best and brightest.

The top scorer on the Philippines’ national medical exam, Jacinto had prompted an agonized national discussion in his country when he, like thousands of other skilled Filipino workers, decided to leave his homeland to make more money.

But by March of this year, when Jacinto and nine other registered nurses were criminally indicted for endangering their patients at a Smithtown nursing home – apparently the first such indictment in the state – he and the others had become symbols in the Philippines of something else: shattered expectations of life in America.

And for Benjamin Landa and Bent Philipson, owners of the nursing home, the situation marked the only time their relationship with Filipino nurses had resulted in something approaching disaster.

The clash between the nurses and their bosses began as an ordinary employer-employee dispute. But it has reverberated far beyond Long Island as the nurses’ legal troubles have been intensely chronicled in the Philippine press. The events leading up to their indictment also shed light on the difficulties that U.S health care companies face as they struggle to secure sources of qualified staff amid a persistent shortage of nurses. And they highlight the gambles that foreign nurses such as Jacinto take as they uproot their lives for a chance to make more money for themselves and their families back home.

“We should have been very proud. Instead we are becoming criminals,” said Jacinto, who is now working as a nurse at Bellevue Hospital Center in Manhattan. He is actually one of the lucky ones: Of the 10 indicted nurses from the Smithtown nursing home, six remain unemployed. Jacinto and the other nurses face a year in jail and possible deportation if convicted. No trial date has been set. In addition, the nurses are being sued for breach of contract by SentosaCare.

Resigning their posts

On April 7, 2006, Jacinto and nine other Filipino nurses and a physical therapist at Avalon Gardens Rehabilitation and Health Care Center in Smithtown quit their jobs – without notice. They resigned over pay, hours and other work disputes after they had complained repeatedly to their supervisors and had met with senior executives, including Philipson. In days before and after, another 16 Filipino nurses at affiliated nursing homes joined them. The Smithtown facility is part of the SentosaCare nursing home network – based in Woodmere and owned by Philipson and Landa. It is the state’s largest for-profit nursing home group with annual revenue of about $450 million.

Almost a year after they quit, a Suffolk County grand jury handed up a misdemeanor indictment against the 10 Avalon nurses, charging conspiracy and endangering the welfare of children and the physically disabled. The indictment focuses on an unusual pediatric unit with 10 chronically ill children on ventilators. It charged that by resigning together without notice, the nurses were leaving the nursing home pediatric unit, the only one licensed on Long Island, with inadequate nursing coverage.

The nurses’ immigration lawyer, Felix Vinluan of Westbury, is also charged with criminal solicitation and conspiracy for encouraging the nurses to resign. Such charges against attorneys are rare, legal experts said.

Different players in the nurses’ story offer dramatically different views of the impact of their actions that day. The Avalon nurses contend that they never put the children at risk because other nurses were available. None of the nurses left during their shifts; the only nurse working the day they quit completed her shift, then worked four hours overtime.

Marlene Fazio, a former nursing supervisor who said she was never interviewed by the district attorney’s office, was in charge of the nursing staff on the 3-11 p.m. shift the Friday the nurses resigned. Administrators had to fill one shift that night and eight over the next four days, according to the nurses’ affidavits.

“It didn’t seem that chaotic,” she said. Although she said there was a “scramble” to find replacements, her shift was unremarkable and she believed no residents were ever at risk. “They had people in place,” Fazio said.

The state Education Department, which regulates nurses, investigated them last year and cleared them in October.

Philipson and Landa’s attorney criticized the Education Department’s probe as superficial and painted a starkly different picture from Fazio.

“At the end of the day, the nursing home was confronted with the following: They had a group of nurses that they were relying upon to care for these children, these fragile children, and the fragile elderly people in the nursing home, and they left. They just left,” said Howard Fensterman of Hewlett Harbor.

An ‘error in judgment’

Assistant District Attorney Leonard Lato said the nurses seemed to be “good, hard-working people,” but that as medical professionals they made “a severe error in judgment.

“They’re trying to transform this into a civil case about the working conditions,” said Lato, who conducted the investigation. “The working conditions don’t matter to me. They didn’t develop overnight – even if you believe them. Why didn’t they say a couple of days earlier, ‘If our demands are not met, we’re just resigning?’ Just give some notice to allow the nursing home to find skilled replacement workers.”

The nurses have suffered two recent legal setbacks. Last month, an office in the U.S. Justice Department decided not to bring a discrimination lawsuit on their behalf before an administrative immigration court. The nurses now plan to file the suit with the court on their own. That strategy keeps the case alive, but reduces the damages the nurses could win.

And this month, the Philippines Overseas Employment Administration, which regulates Filipinos who work in foreign countries, dismissed an action brought by 26 nurses and a physical therapist against SentosaCare and its affiliated Philippine-based recruiter, Sentosa Recruitment Agency. The nurses are appealing. They charge fraud and misrepresentation in SentosaCare’s sending them to nursing homes other than those with which they had contracts.

Cecilia Rebong, the Philippines consul general in New York, described her government’s decision as “legalistic. It might not be what I wanted. … My personal want is maybe different from the official position of a government agency.

“My fervent hope is that our nurses will get justice,” she said.

The son of teachers who grew up on Basilan, a rebel-torn island in the southern Philippines, Jacinto got his nursing degree in 1996. He then went on a full scholarship to medical school in Manila where he graduated first in the class of 2002.

In 2004, Jacinto finished top among about 1,800 aspiring doctors taking the Philippine national medical exam. In 2005, he decided to work as a nurse in the U.S. His decision was widely covered in the Philippines, where a “brain drain” of skilled workers is a major national issue.

With 70 percent or more of its nursing graduates working abroad, the Philippines is the biggest supplier of nurses worldwide. The reason is money: The average starting salary for a registered nurse in the Philippines is between $100 and $200 a month, according to Dovelyn Agunias, associate policy analyst at the Migration Policy Institute in Washington, D.C. Doctors make $300 to $800 a month. By contrast, the average nurse in New York state earns between $4,000 and $5,000 a month, Agunias said.

“I heard good stories about how you can upgrade yourself,” Jacinto said.

For Philipson and Landa – who with their wives own controlling interests in 25 nursing homes in New York City, Westchester and Long Island – bringing Filipino nurses to work in their facilities also made sense. New York is expected to have a shortfall of 30,858 nurses by the end of the year, according to the state Education Department.

Quickly turning sour

Landa and Philipson established a relationship with Sentosa Recruitment Agency in metropolitan Manila to take care of their own shortage. Although the similar-sounding companies have no corporate connection, Fensterman said, SentosaCare has first rights to the nurses recruited in the Philippines by Sentosa Recruitment Agency. Owned by Filipino Francis Luyun, the agency has sent 364 nurses to Landa-Philipson homes since the agency opened in 2002, Fensterman said. About a quarter of SentosaCare’s nursing services directors are Filipino, he said. “These nurses are RNs. One of the objectives of Ben Landa and Bent Philipson originally was to try to ensure that they were maintaining the quality of care in their facilities,” Fensterman said.

The seeds of the disagreement between SentosaCare and the Filipino nurses were planted hours after Jacinto and a dozen or so other nurses landed in New York.

Jacinto liked what he saw in Sentosa Recruitment Agency materials: salaries at $21 to $35 an hour, medical and dental coverage, relocation and housing allowances, free malpractice insurance, paid vacation days, paid sick days, free airfare from Manila to New York, reimbursement of fees for processing certifications, night shift differentials, comprehensive training, and free housing for new nurses. The three-year contract had a $25,000 penalty if a nurse left early.

Virtually all of the subsequent disagreements resulted from the nurses’ feeling that promises were not kept by Sentosa Recruitment Agency in the Philippines and by SentosaCare on Long Island. In general, the issues are typical of those in employee-employer disputes, but for the Sentosa nurses, already feeling insecure and far away from home, they apparently took on even more significance.

For example, Jacinto believed Sentosa Recruitment Agency was a direct-hire agency, as it is described on the agency’s Web site. To Jacinto and the other nurses, that meant that a specific facility would be each nurse’s “petitioner” to the U.S. to help them secure a green card, which makes the bearer a legal permanent resident. For nurses, the distinction is important because many prefer to work for an institution, not an agency that can switch their assignments. The nurses each signed contracts with their petitioning nursing homes.

But it turned out that almost all the Filipino nurses who eventually resigned were placed in nursing homes that did not petition them. While Philipson in an affidavit said the nurses asked for re-assignments, the nurses deny this. However, this arcane point of immigration law eventually became the nurses’ legal rationale for their resignations: They claim they had no contract because they never worked for their petitioner.

Nothing illegal?

Shawn Saucier, an immigration services spokesman, said Philipson and Landa had done nothing illegal in transferring the nurses to other homes. The nurses’ contract states that “employer has the right at its sole discretion to transfer this agreement to any of its affiliated facilities. ”

There were other problems, the nurses said. Their housing for the first several months was free, but Jacinto said the house he lived in was so crowded he had to bunk on a couch. They said another was in an unsafe neighborhood and had a faulty heating system. Many found they had to work as clerks for weeks or months because essential documents – including their state nursing licenses – were not ready for them. As clerks, they made $12 an hour, instead of $21 an hour as a nurse.

Sarah Lichtenstein, a lawyer in Fensterman’s office, said the delay in getting the necessary documents was not unusual.

“Our people did them a favor by employing them, giving them some employment even at a clerk level, so they had some income while they were waiting for their permits to be issued,” she said.

The nurses at Avalon also had complaints about working conditions, ranging from inadequate training, inadequate staff on the units, paychecks they say did not reflect their hours worked and reductions in their work week from 37.5 hours to 35 hours.

Avalon’s nursing-patient ratios are above average, federal statistics show. Federal regulators look at health care staffing ratios by calculating how much nursing time each patient gets. In 2006, Avalon residents on average got 40 minutes a day of care from a registered nurse, compared with the state average of 36 minutes and a national average of 30 minutes. That number rose to 55 minutes this year.

Nevertheless, the nurses who quit said they often felt they didn’t have enough staff to help them. Ma Theresa Ramos, who worked on the pediatric ventilator unit, said attempts to get more staff went unheeded.

“We kept telling them that these were children with different needs than other residents,” she said. “We felt we cannot give the care they need.”

Susan O’Connor, Avalon’s administrator, said staffing for the unit is “based on patient census and needs. For ventilator patients, we have a nurse for every four to six patients. In addition, we have 24/7 respiratory technician coverage.”

The nurses also were upset when their hours were cut. The nurses at the beginning of 2006 had their hourly wages raised from $21 to $24 an hour to comply with the U.S. Department of Labor’s prevailing wage rate – a minimum wage for foreign workers to protect American workers from being undercut by lower-paid foreigners. But on Jan. 3 a memo informed the nurses they would no longer work 37.5 hours but 35 hours a week, in effect reducing their pay raise.

Their unhappiness was noticed by other staff members. Fazio said the nurses often seemed miserable – even though she praised them as “excellent, cooperative, hard-working and respectful.”

Attorney’s involvement

In late March, Jacinto and another nurse, Alipio Esguerra, went to the Manhattan office of immigration attorney Felix Vinluan to see what their rights under the contract were. Two days later, Vinluan said, he got a call from the Philippine consulate about Eileen Magnaye and Noralyn Ortega, nurses at Bayview Nursing and Rehabilitation Center in Island Park, who had similar complaints. The consulate asked him to help the nurses.

Vinluan called a meeting the next week at which 15 or so nurses showed up. The lawyer charged each nurse a one-time fee of $100. He said he advised them that because they were not working for the nursing homes that petitioned them, the contracts they had signed had already been breached and thus they could resign if they chose to without penalty.

Fensterman charged that Vinluan told them to quit: “My view is that there were a few malcontents who ran into an attorney … who himself has his own employment agency in the Philippines. And he, in my view, conspired with these nurses and worked with them.”

But Vinluan denied – as did the 10 nurses – that he told them to quit or orchestrated their resignations. He also said he has no “employment agency anywhere else in the world.”

The nurses’ resignations occurred over several days.

On April 6, 10 Filipino nurses from Brookhaven Rehabilitation & Health Care Center in Far Rockaway quit without notice.

The next day, Jacinto said he and the other Avalon nurses debated all day whether they should quit and whether they should give notice. Their contracts did not require them to give notice unless they had worked for the nursing home for five years. Jacinto said they were afraid of reprisals if they stayed after giving notice.

By 5:15 p.m. on April 7, the nurses said, they had handed in or faxed their resignations. SentosaCare says the nurses did not quit until 7 p.m.

Also that day, two Filipino nurses at Bayview and two at Split Rock Rehabilitation & Health Care Center in the Bronx also quit.

Only two of the Avalon nurses were scheduled to work April 7, according to their affidavits: Rizza Maulion and Ma Theresa Ramos. Maulion said she had been scheduled to work the 7 a.m. to 7 p.m. shift.

“When I showed up for work, the nursing director sent me home, telling me to work the evening shift. … This was an extreme inconvenience and, in fact, was the final straw leading to my resignation,” she said in her affidavit.

Ramos worked her 7 a.m. to 7 p.m. shift in the pediatric ventilator unit and also worked an extra four hours – six hours after her resignation, she said in her affidavit.

As for worrying about whether the residents would be taken care of if they resigned, Jacinto – like the other nurses – said he felt there were sufficient numbers of nurses available to cover their shifts.

Fazio, the nursing supervisor from 3 to 11 p.m. that day, said that although “the tension was very thick” after the 10 submitted their resignations, other nurses from within Avalon and other facilities were brought in. “Basically, I didn’t sense there was any real danger or real jeopardy,” she said.

Fensterman disagreed. “If you contemplate … the fact that we are dealing with an acute nursing shortage … where are you supposed to get the nurses from to replace the nurses that walked off the job?”

Lato said it “would have been a different story” if the nurses had quit at 9 a.m. He contends that the nurses quit in the evening so that Sentosa would not be able to bring a restraining order against the nurses.

The indictment, which came almost a year after the nurses left, took all the nurses by surprise. Jacinto, who was working at St. Vincent’s Midtown Hospital until it closed at the end of August, is worried whether he and the other nurses will prevail in court.

As for his time in the United States, Jacinto is polite but noncommittal. “The land of milk and honey – I do not know,” he said, his voice trailing off into silence.