UNITED STATES OF AMERICA, et al. v. KINDRED HEAL THCARE, INC., et al CIVIL ACTION NO. 16-00683-KSM United States District Court, E.D. Pennsylvania Filed August 19, 2024 Counsel Thomas W. Sheridan, Sheridan & Murray, Fort Washington, PA, David T. Marks, Marks, Balette, Giessel & Young, PLLC, Houston, TX, James C. Shah, Miller Shah LLP, Philadelphia, PA, Nathan C. Zipperian, Miller Shah LLP, Fort Lauderdale, FL, for State of California, State of Colorado, State of Connecticut, State of Georgia, State of Indiana, State of Montana, State of Nevada, State of New Hampshire, State of North Carolina, State of Tennessee, State of Washington, State of Wisconsin, Commonwealth of Massachusetts, Commonwealth of Virginia. Natalie Finkelman Bennett, Bruce D. Parke, James C. Shah, Michael P. Ols, John C. Roberts, Shepherd Finkelman Miller & Shah LLP, Philadelphia, PA, James E. Miller, Miller Shah LLP, Chester, CT, Mark A. DiCello, DiCello Levitt LLP, Mentor, OH, Nathan C. Zipperian, Miller Shah LLP, Fort Lauderdale, FL, Thomas W. Sheridan, Sheridan & Murray, Fort Washington, PA, for Timothy Sirls. David Andrew Degnan, U.S. Department of Justice, Philadelphia, PA, Gregory B. David, Gerald B. Sullivan, Assistant U.S. Attorney - U.S. Atty's Office, Philadelphia, PA, James C. Shah, Miller Shah LLP, Philadelphia, PA, David T. Marks, Marks, Balette, Giessel & Young, PLLC, Houston, TX, Thomas W. Sheridan, Sheridan & Murray, Fort Washington, PA, Nathan C. Zipperian, Miller Shah LLP, Fort Lauderdale, FL, for United States of America. Brenna E. Jenny, Laura K. Craig, Claire Homsher, Sidley Austin LLP, Washington, DC, David L. Hobson, Glenn P. Hendrix, I, W. Jerad Rissler, Arnall Golden Gregory LLP, Atlanta, GA, Jaime L.M. Jones, Sidley Austin LLP, Chicago, IL, Andrew H. Struve, Matthew I. Lahana, Hooper Lundy & Bookman PC, San Diego, CA, Carrie Sarhangi Love, Jonathan P. Boughrum, Richard L. Scheff, Faegre Drinker Biddle & Reath LLP, Philadelphia, PA, Jeffrey S. Adler, William J. Mundy, Burns White LLC, West Conshohocken, PA, Jordan C. Kearney, Scott J. Kiepen, Hooper, Lundy & Bookman, P.C., San Francisco, CA, for Kindred Healthcare, Inc., Kindred Healthcare Operating, Inc., Kindred Healthcare Services, Inc., Kindred Nursing Centers, East, LLC, Kindred Nursing Center West, LLC, Kindred Nursing Centers South, LLC, Kindred Nursing Centers North, LLC. Marston, Karen S., United States District Judge REPORT AND RECOMMENDATION OF SPECIAL MASTER *1 This Report and Recommendation is issued in accordance with the Order dated June 1, 2021 appointing the undersigned as Special Master “for all discovery disputes in this action” and the “Special Discovery Master Protocol” (Doc. Nos. 119, 120). Presently before the Special Master for consideration are: (1) Relator's letter dated July 9, 2024 outlining various discovery disputes (“Relator's Motion No. 1”) and Kindred's[1] letter dated July 19, 2024 in opposition thereto (“Kindred's Opp. No. 1”); and (2) Relator's letter dated July 16, 2024 outlining various discovery disputes (“Relator's Motion No. 2”) and Kindred's letter dated July 22, 2024 in opposition thereto (“Kindred's Opp. No. 2”)[2] Oral argument was held on July 23, 2024 (the “Hearing”). Kindred submitted a letter dated July 24, 2024 after the Hearing (“Kindred's July 24, 2024 Letter”). I. BACKGROUND Relator filed his first Complaint in this case on February 11, 2016, asserting several claims of Medicare and Medicaid fraud. See Memorandum (dated April 29, 2021) at 2-3 Doc. No. 112 (Hon. Jan E. DuBois (Ret.))). Two amended complaints have been filed Relator's remaining claims in this qui tam action are: “(1) claims based on the alleged express false certifications of accuracy in MDS forms and Form 1500s and (2) claims based on the alleged factual falsity of claims submitted under the [False Claims Act] and analogous” state laws of several specific states. See Memorandum (dated February 4, 2021) at 32 (Doc. No. 85 (Hon. Jan E. DuBois (Ret.))). See also Memorandum (dated April 29, 2021) (denying Relator's motion for reconsideration of the February 4, 2021 Memorandum (Doc. No. 112)). The discovery deadline in this case is August 30, 2024. In the Report and Recommendation dated May 8, 2024, the Special Master recommended that the applicable statute of limitations entitled Relator to “discovery back through January 1, 2008.” (Report and Recommendation dated May 8, 2024 at 4 (the “May 2024 R&R”).) II. OUTSTANDING DISCOVERY DISPUTES A. Relator's Motion No. 1. In his first motion, Relator requested a Report and Recommendation compelling Kindred “to produce complete responsive medical records for the time period of January 1, 2008 through November 30, 2018 in response to Relator's Fifth Set of Requests for Production,” served on April 2, 2024. (Relator's Motion No. 1 at 1.) The Special Master is aware that document production in this case has been a difficult task. Kindred no longer own the facilities at issue. The documents at issue are in both paper and digital form. Since approximately 2012, many of the documents at issue are in digital form.[3] Some documents are retained in paper form at a facility called “Iron Mountain.” It was suggested at the Hearing that the paper documents at Iron Mountain are displayed on a spreadsheet identified by bar codes. *2 The parties have divided the requested medical records into three categories. 1. Medical Records for Claims Between January 1, 2008 and March 23, 2010. Kindred contends that it is premature for it to produce medical records for this time period as the “extent to which Relator can pursue claims for services furnished from January 1, 2008 to March 23, 2010 is the subject to two separate filings pending before Judge Marston.” i.e., Kindred's pending Motion to Dismiss (Doc. No. 169) and Kindred's objections to the May 2024 R&R (Doc. No. 185). Kindred asserts that it should not be required to produce documents within this date range “until Judge Marston decides the disputed issues in these filings, because [r]equiring Kindred [to do so] ... absent a court ruling that that time frame is properly within the scope of this case would unnecessarily increase the already burdensome production process and would be an inefficient waste of resources.” (Kindred's Opp. No. 1 at 2)[4] At the Hearing, Kindred represented that it had not started looking for documents in this time frame. The Special Master recommends that Kindred be required to produce responsive documents within this date range. This case has been pending since 2016 and the discovery deadline of August 30, 2024 is quickly approaching. Should Judge Marston deny Kindred's motion to dismiss and adopt the Special Master's May 2024 R&R. Kindred would have to begin accessing the documents from 2008 to 2010. This will unduly delay the case Kindred should begin producing the documents now before the end of the discovery deadline. The Special Master finds that avoiding this delay outweighs any additional burden on Kindred caused by producing the additional two years of documents. 2. Medical Records for Claims Between February 11, 2016 and November 30, 2018. Kindred objects to producing responsive medical records after February 11, 2016, the date Relator filed his initial complaint, arguing that “Relator has not pled ongoing misconduct with sufficient particularity to entitle him to discovery post-dating the filing of his complaint.” (Kindred's Opp. No. 1 at 3.) Relator represents that it plead that the conduct at issue is ongoing in his original Complaint (Doc. No. 1 at ¶¶ 2, 99, and 102) and in his Second Amended Complaint (Doc. No. 62 at ¶¶ 2, 126, 129). At the Hearing, Relator stated that it is seeking discovery from February 11, 2016 through the date Kindred divested control of the facilities. The Special Master finds that responsive medical records during this time frame are relevant. Kindred also objects to the production of medical records during this time frame as unduly burdensome. Kindred acknowledged at the Hearing that by 2016, the medical records were in digital form. Moreover, Relator represented at the Hearing that he is seeking minimal targeted discovery of medical records relating to approximately 190 claims after February 2016. Given these factors, the Special Master recommends that Kindred be required to produce the requested medical records during this time frame. *3 3. Non-ADL Related Records. As determined by Judge DuBois, Relator's remaining claims in this action are: “(1) claims based on the alleged express false certifications of accuracy in MDS forms and Form 1500s and (2) claims based on the alleged factual falsity of claims submitted under the [False Claims Act) and analogous” state laws of several specific states. See Memorandum (dated February 4, 2021) at 32 (Doc. No. 85). More specifically, Judge DuBois stated that Kindred's Motion to Dismiss “is denied to the extent it seeks dismissal of relator's claims of fraud under theories of false certification of accuracy of Form 1500s, false certification of accuracy of MDS Forms, and falsification of RUG scores.” Id. Relator argues that neither he nor Judge DuBois “limit[ed] his allegations regarding falsified form 1500s or MDS assessments to those relating specifically” to ADL scores. (Relator's Motion No. I at 4.) When discussing the time frame of January 1, 2008 through March 23, 2010 at the Hearing, the parties acknowledge that Kindred was reviewing its production and producing only those medical records relating to ADLs. Reviewing Judge DuBois' February 4, 2021 Memorandum (Doc. No. 85), the Special Master concludes that Relator's remaining claims relate solely to the furnishing of ADLs. Judge DuBois provided a detailed overview of the Medicare and Medicaid systems relating to this litigation. Id. at 3-4. Generally, information regarding a patient's ADL activity is coded in Section G of the Minimum Data Set (“MDS”) form. Id. at 4. Resource Utilization Group (“RUG”) levels consider, inter alia, a person's ability to perform ADLs and use measures of staff time and service frequency, variety and duration to classify patients and their needs with respect to ADLs. Id. at 3. “Form 1500s” are submitted to Medicare and Medicaid for payment. Id. at 27. Discussing the federal and state claims at issue in the Second Amended Complaint, Judge Dubois referred to “RUG scores” and “RUG States.” Id. at 28. The RUG scores at issue in this litigation relate to ADLs. Id. at 3-4, 27-30. To determine the scope of discoverable information under Federal Rule of Civil Procedure 26(b)(1), the court looks to the pleadings. See FRCP 26(b)(1) (defining discoverable information to include “any nonprivileged matter that is relevant to any party's claim or defense” (emphasis added)). At the Hearing, Relator cited to several paragraphs of the Second Amended Complaint, as establishing that the claims are not limited to ADLs. Specifically, the Relator cited to paragraphs 9-10, 29, 40, 52, 126-29, 137-43, 154-59. Consideration of these paragraphs in the context of the entire Second Amended Complaint do not support Relator's assertion that the Second Amended Complaint alleges RUG scores at the relevant facilities were false for reasons unrelated to ADLs. For example, in paragraph 10 of the Second Amended Complaint, Relator pleads as follows: “The false claims and statements in this case include tens of thousands of false MDSs and Form CMS-1500s (“Form 1500s”) [ ] submitted to Medicare and Medicaid. Kindred knew that payment from Medicare and Medicaid was conditioned on the accuracy and truthfulness of the information contained in these MDSs and the Form 1500s, and that the submission of false representations in the Form 1500s may subject it to substantial criminal, civil and administrative penalties. The false claims in this case also include the various other claims for payment that Kindred submitted to Medicare and Medicaid (discussed more fully below), certifying as a condition of payment that the care it claimed to have delivered complied with federal and state laws. (Second Amended Complaint at ¶ 10 (emphasis added).) Relator does not specify a basis for such “various other claims” other than claims related to the provision of ADLs and payment related thereto. A more fulsome review of the Second Amended Complaint reveals that “services” Relator claims Kindred billed for but failed to provide are ADLs. See Kindred's July 24, 2024 Letter at Appendix A. *4 Earlier in the case, in granting in part and denying in part Kindred's Motion to Dismiss the First Amended Complaint, Judge DuBois stated: “Relator thus plausibly alleges liability under the FCA when he states that defendants caused their facilities to falsely report the level of support provided to residents in Section G of their MDS assessments and thus inflate [RUG] classifications and corresponding rates of reimbursement.” (Memorandum dated June 29, 2020 at 16 (Doc. No. 60).) As noted above, Section G of the MDS form is for the documentation of ADLs. Moreover, a review of the pleadings reveals that during the course of this litigation, Relator described that his claims relate to staffing (which claims were rejected by Judge DuBois) and provision of ADLs. For example, in Relator's Motion for Reconsideration or, in the Alternative, Motion for Leave to File Third Amended Complaint (“Relator's Motion for Reconsid.,” Doc. No. 93), the focus of which was Relator's request to amend his complaint “on the sole basis of addressing the Court's public disclosure concerns,” (Relator's Motion for Reconsid. at 5), Relator stated that he filed the original complaint “to recover damages based on Kindred's practice of submitting claims for reimbursement for services to residents of its nursing facilities which, given Kindred's mandated staffing restrictions, were physically and mathematically impossible for it to have provided.” Id. at 2. Relator identified the “services” Kindred improperly failed to provide as “ADLs.” Id. at 5-19 (in the context of filing a Third Amended Complaint addressing staffing and “original source” issues). In the context of discovery, in his opposition to Kindred's Motion for Phased Discovery,” (“Relator's Opp. to Kindred's Motion for Phased Discovery. (Doc. No. 84)), Relator stated that his “claims arise from a nationwide false claim scheme orchestrated by Kindred ... to obtain payment from Medicare and Medicaid for necessary resident care that it claimed to have provided, but, in fact, did not provide.” (Relator's Opp. to Kindred's Motion for Phased Discovery at 1.) The only “necessary resident care” Relator described in that opposition was ADLs. Relator further stated that it had served four sets of documents requests and one set of interrogatories and that “these requests referenced staffing levels to the extent that staffing resulted in the submission of MDS forms for reimbursement for [ADL] services not actually provided.” Id. at 3-4 Relator asserted that Kindred, at that time in the litigation, exaggerated the scope of Relator's discovery in, inter alia, the following respects: Kindred ignores the express language of First Set of Requests for Production of Documents to Defendants ... No. 7, (which narrowly seeks only electronic ADL records) claiming it seeks all ADL records (presumably in all forms); Kindred misinterprets Relator's discovery by speciously asserting that such discovery seeks every medical record from every resident, when, in fact, the only medical records sought are electronic ADL records and electronically submitted MDS records[.] Id. at 4 (emphasis in original). Considering all the foregoing, the Court's orders through the course of this litigation have limited Relator's instant claims to allegations that Kindred sought reimbursement for the provision of ADL services which Kindred did not provide. Except as otherwise recommended in the February 12, 2024 R&R, Relator's request for production of documents unrelated to ADL's should be denied. B. Relator's Motion No. 2. As stated by Relator therein, Relator's Motion No. 2 focuses on documents relating to staffing. Relator requests that Kindred be required to produce documents: “(1) containing the number of staff that worked and hours that staff worked who were responsible for providing relevant services to residents at the subject facilities; and (2) reasonably calculated to lead to the discovery of admissible evidence that Kindred's service claims were factually false due to the fact that it was physically impossible for Kindred staff to deliver the underlying services.” (Relator's Motion No. 2 at 1.) And see id. at 2 (identifying categories of documents Relator claims that Kindred failed to produce). *5 With respect to the issue of staffing documents, the Special Master concluded and recommended as follows in his Report and Recommendation dated February 12, 2024 (the “February 2024 R&R”): The Special Master finds that evidence revealing Kindred falsely certified staffing levels and compliance with staffing requirements can prove falsity with respect to Relator's remaining claims, Accordingly, it is recommended that Kindred be ordered to produce to Relator the “most important” documents it seeks, namely, employee time records/cards and punch cards, including job codes necessary to interpret such time records/cards and punch cards. (February 2024 R&R at 8.) At the January 29, 2024 oral argument addressing the discovery disputes at issue in the February 2024 R&R, in response to a question from the Special Master, Relator identified the “most important documents sought as the employee time records/cards and punch cards with detail.” Id. at 8. At that hearing, Kindred stated that it “believed that for the most part, depending on the age, this data is stored digitally.” Id. The Honorable Karen Spencer Marston approved and adopted this portion of the February 2024 R&R with no objection from Relator with respect to this recommendation, See Doc. No. 179. In making this recommendation. the Special Master stated as follows: The Special Master rejects Kindred's proportionality argument recognizing that parties may seek the same information from multiple sources. Courts have generally held that... “[a] party may attempt to obtain the same information from multiple discovery sources ....” Crider, Inc. v. Convenience Food Sys., Inc., 2005 WL 8157607, at *1 (S.D. Ga. Aug. 15, 2005). Nor is Relator limited in this regard as to how he seeks to prove his claims. However, the Special Master also recognizes that Judge DuBois stated in his Memorandum dated April 29, 2021 (Doc. No. 112). that “relator's staffing allegations were substantially based on publicly disclosed information contained in federal administrative investigations and reports, civil hearings, and news reports.” Id. at 8 (referring to rulings by the court in its Memorandum dated February 4, 2021 (Doc. No. 85)). The Special Master, therefore, has struck a balance between Relator's ability to seek this information with the fact that much of this information is publicly disclosed. (February 2024 R&R at 8 n.4.) In making this recommendation, the Special Master also was cognizant of the prolonged discovery period this case has endured. This case has been pending since 2016. The bellwether phase of discovery was lengthy. Discovery is further complicated because Kindred no longer owns the facilities in question. Some documents are in paper form and others have been converted to digital form. In asking Relator to identify which documents relating to staffing were most important to his case, the Special Master's intention was to consolidate the numerous discovery requests regarding staffing and reach a compromise position that would provide Relator with the documents he deemed most important to his case, while relieving Kindred of some of the burden it faces in this unique discovery situation so that this case may proceed. To recommend that Kindred produce the staffing documents identified by Relator as most important to his case but then later recommend that Kindred respond to all discovery requests relating to “staffing.” is contrary to the Special Master's February 2024 R&R and therefore this request should be denied. *6 Additionally, Kindred objects to the time frame of the discovery with respect to Relator's Motion No. 2. As already addressed herein, the relevant discovery time frame is January 1, 2008 through November 30, 2018. The Special Master recommends that Kindred be ordered to produce responsive documents within this time frame regardless of the open issues pending before the Court. With all these principles in mind, the Special Master considers Relator's Motion No. 2. In his second motion, Relator asserts that Kindred failed to produce documents responsive to the following requests in Relator's four sets of Requests for Production: 1. First Set of Requests for Production -- Request Nos. 3. 4. 10, 12-15, 19, 24-25. At the Hearing, Relator stated that he withdrew his motion to compel with respect to Relator's First Set of Requests for Production Nos. 3, 4, 19 and 24. Kindred represents that it Produced documents responsive to No. 25. (Kindred's Opp. No. 2 at 2.) Kindred acknowledges that it agreed in a November 9, 2023 meeting with Relator that it would produce documents responsive to No. 13[5]. Id. Kindred maintains that the documents ordered produced in the February 2024 R&R regarding time records/cards and punch cards, and job codes, are responsive to Relator's First Set of Requests for Production Nos. 2.1 and 2.8. Id. The remaining requests at issue with respect to Relator's First Set of Requests for Production are Nos. 10, 12, 14 and 15. Kindred states that the parties have not met and conferred on these discovery requests and, therefore, “they are not appropriately part of this request lot a report and recommendation.” (Kindred's Opp. at 3.) While this may be true, the Special Master will review Relator's requests so that this case may proceed. Relator's First Set of Requests for Production Nos. 10, 12 14 and 15 seek the following documents: 10. This [Request for Production (“RFP”)] seeks the production of occupancy/census and payor mix data 12. This RFP seeks the production of documents containing marketing plans, sales plans, and policies and procedures to increase census. 14. This RFP seeks the production of emails and other communications regarding staffing reductions, directives to comply with staffing budgets/benchmarks, staffing over budget, budget variances, and criticisms/reprimands regarding staffing levels. 15. This RFP seeks the production of emails and other communications regarding the need to increase census, failure to meet census targets, concerns regarding payor mix and/or payor rates. (Relator's Motion No. 2 at 4-5.) These requests requesting, inter alia, census data, relate to staffing issues. As noted above, the Special Master in the February 2024 R&R required Kindred to produce to Relator the staffing documents Relator considered the “most important.” Moreover, as Kindred stated, in various pleadings filed in the district court, Relator has represented that it has much information regarding staffing and census issues See Kindred's Opp. at 9-11. Specifically, and by way of example, Kindred cites to representations Relator made in his Motion for Reconsid. (Doc. No. 93), including, for example, that Relator's experts had “quantified the extent to which Kindred deprived residents of basic ADL care that was required and that Kindred claimed was provided at each subject nursing home.” Id. at 6 (emphasis in original). With respect to census data, Relator represented that “resident census data was obtained for each Kindred facility.” Id. at 10. *7 Consequently, for all the above reasons, Relator's request the Kindred be compelled to respond to Relator's First Set of Request for Production Nos. 10, 12, 14 and 15 should be denied. 2. Second Set of Requests for Production -- Request Nos. 5-6. At the Hearing, Kindred agreed to produce documents responsive to these document requests. 3. Third Set of Requests for Production — Request Nos. 2, 7, 17. At the Hearing, Kindred reported that it agreed to produce a stipulation regarding the information requested: counsel for Relator stated that counsel would confer to prepare such a stipulation. Relator describes the documents sought in request Nos. 7 and 17 as follows: 7. This RFP seeks the production of emails and communications containing criticisms, concerns, reprimands regarding compliance with financial performance thresholds, and or failure to reduce operating expenses. 17. This RFP seeks the production of criteria and/or guidelines for awarding corporate officer and/or director bonuses based on performance criteria. (Relator's Motion No. 2 at 6.) Relator states that requested discovery related “to staffing is relevant to the remaining claims.” Id. at 7. Again, the Special Master in the February 2024 R&R required Kindred to produce specific documents relating to staffing identified by Relator as “most important.” Relator's request for additional discovery should be DENIED. 4. Fourth Set of Requests for Production -- Request No. 11. At the Hearing, Kindred agreed to conduct a search to determine it it possesses a list identifying lawsuits “alleging medical record falsification or failure to provide residents with ADLs.” (Relator's Motion No. 2 at 7.) See also Kindred's Opp. at 2 (“Kindred agreed to produce any complaints regarding the failure to furnish ADLs at the 168 skilled nursing homes at issue”). Relator acknowledged that while it was not asking Kindred to conduct a “courthouse search” for this publicly available information, if Kindred possesses such a list of lawsuits, Relator agreed to accept it in response on Request No. 11. Absent such a list, Relator represented that he would conduct his own search for the information. III. CONCLUSION AND NOW, this 19th day of August, 2024, for the reasons set forth above, it is respectfully RECOMMENDED 1. Relator's Motion No. 1 should be GRANTED IN PART and DENIED IN PART: (a) Relator's Motion No. I should be GRANTED and Kindred should be directed to, notwithstanding motions pending before the court, produce responsive documents for the time period of January 1, 2008 through November 30, 2018. (b) Relator's Motion No. 1 is DENIED to the extent Relator seeks to compel Kindred to produce non-ADL records, except as recommended in the February 2024 R&R. 2. Except for agreements between the parties stated at the Hearing, Relator's Motion No. 2 should be DENIED. Honorable Thomas J. Rueter (Ret.) Special Master ORDER AND NOW, this day of 2024. upon consideration of the Report and Recommendation of Special Master Honorable Thomas J. Rueter (Ret.) dated August 19, 2024, and any objections thereto, the Report and Recommendation is APPROVED and ADOPTED, and the court enters the following Order: 1 Relator's Motion No. 1, stated in Relator's letter dated July 9, 2024, is GRANTED IN PART and DENIED IN PART as follows: (a) Motion No. 1 is GRANTED to the extent that Defendants shall produce responsive documents for the time period of January 1, 2008 through November 30, 2018; and (b) Relator's request to compel Defendants to produce non-ADL records, except as recommended in the February 12, 2024 Report and Recommendation, is DENIED. *8 2. Relator's Motion No. 2, as stated in Relator's letter dated July 16, 2024, except for agreements between the parties stated at the Hearing, is DENIED. Footnotes [1] Consistent with the practice of the parties, Defendants are collectively referred to herein as “Kindred.” [2] Not every argument raised by the parties will be addressed herein. However, the Special Master has considered all submissions of the parties and arguments presented at the Hearing in making the recommendations set forth herein. [3] At the Hearing, counsel for Kindred stated that the paper documents from the relevant facilities were converted to digital format at different dates shortly after 2012. [4] Kindred further states that “because the issues presented in Kindred's Objections [to the May 2024 R&R] and its Motion to Dismiss are interconnected, ... Judge Marston need not even reach its Objections if she grants the Motion to Dismiss.” (Kindred's Opp. No. 1 at 2.) [5] Document Request No. 13 sought “the production of grievances/complaints regarding staffing or failures to provide ADL care or licensed nursing care.” (Relator's Motion No. 2 at 5.)