Monday, January 21, 2008

Myths of (Sentosa) Avalon

There are myths about the American legal system that Filipinos generally subscribe to, the most common of which is that it is generally free from the kind of corruption and political manipulation that its Philippine counterpart is subject to. But the Filipino nurses who were recruited by the Sentosa Recruitment Agency (SRA) to work at the Avalon Garden nursing home facility in New York entertain no such illusions. Their trial on trumped-up criminal charges is set to begin next week on January 28.

Their problems all began when they signed up with the SRA in the Philippines in 2004. They chose SRA over other nurse recruiters from the US because SRA offered to provide them with green cards for working at nursing home facilities, which individually petitioned them, upon their arrival in New York. As an added enticement, they were offered two months of free housing and reimbursement for all their travel expenses.

Among the Filipino nurses who signed up with SRA was Elmer Jacinto, the physician-nurse who topped the Philippine medical board exams in 2004 but who opted to work as a nurse in the US rather than as a doctor in the Philippines. Jacinto was recruited by SRA to work for the Franklin Center nursing home which signed up as his immigration sponsor.

The owner of the Philippine-based SRA, Francris Luyun, facilitated all the immigration paperwork for the nurses and even flew to New York to greet them when they arrived and to escort them to their staffing house.

A few days after their arrival, however, the nurses were informed by Luyun that they could not work for the nursing home facilities that petitioned them because they had no work permits (SRA forgot to submit them). Luyun mentioned that he could provide them temporary work through Sentosa Services where, it turned out, he was the recruitment contractor.

Because the nurses had no other choice, they accepted Sentosa’s offer. Jacinto and nine other nurses were given work at the Avalon Gardens nursing home while other nurses were doled out to about 12 different nursing homes. It turned out that all of them were owned and operated by Sentosa Care, LLC, whose CEO was Bent Philipson, the man who signed all the employment contracts with the Filipino nurses on behalf of the various New York nursing homes which had petitioned them.

They were not employees of the nursing homes where they worked but “agency nurses” employed by Sentosa Services to work as independent contractors at their assigned locations. They were paid below the prevailing wage of the Department of Labor and not paid for the overtime they were compelled to put in.

Felix Vinluan, the lawyer consulted by the nurses, reported that they were provided substandard living accommodations upon their arrival. “Some had to sleep on the cold floor; some had to alternate in using the beds; and most of them complained that their staff house was not properly heated. In fact, two of them who had to sleep on makeshift beds in the garage, because there was no more space for them inside the house,” Vinluan said.

The nurses complained to both Luyun and Philipson about their working conditions and about patient safety as they were tasked with taking care of 40 - 60 patients, but their complaints were ignored, prompting them to seek Vinluan’s counsel. Approximately 27 Filipino nurses, among the hundreds of nurses recruited by Sentosa, signed up with Vinluan who advised them all to file discrimination charges against their respective sponsoring or contracting employers with the U.S. Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices.

Because they were employed by Sentosa Services and not by the nursing homes they were assigned to, and because they never signed employment contracts with Sentosa Services, Vinluan advised them that they were “at-will” employees who could resign anytime in the same way their employer could fire them anytime.

On April 6, 2006, the Filipino nurses at one Sentosa facility resigned at the end of their shifts, followed the next day by Filipinos working at four other Sentosa facilities including ten nurses at Avalon. In response, Philipson and Sentosa Care, LLC filed a civil suit for “breach of contract” against the Filipino nurses and a “tortious interference with contractual relations” cause of action against their lawyer, Vinluan. The nurses filed a cross-complaint against Sentosa for breach of contract. Sentosa then filed complaints against individual nurses with the New York Office of Professional Discipline (OPD) causing the licenses and permits of the nurses to be placed on hold.

The Filipino nurses filed administrative cases against the SRA in Manila for violations of Philippine recruitment rules and regulations before the Philippine Overseas Employment Administration (POEA). On March 24, 2006, the POEA administrator issued a preventive suspension order against the SRA.

After US Sen. Charles Schumer contacted the POEA on behalf of Bent Philipson, a campaign contributor, the POEA lifted its suspension order just two weeks after it was issued. Presidential Chief of Staff Michael Defensor also reportedly intervened to prompt the POEA to lift the suspension order.

On September 13, 2006, the New York Office of Professional Discipline (OPD) informed Vinluan that the administrative cases against the Filipino nurses were closed, and that there was “no finding of patient abandonment and that there was no good moral character issue that would prohibit the nurse-permittees from securing their limited permits or nursing licenses.”

After failing to secure a preliminary injunction against the Filipino nurses, Sentosa’s lawyer then sought a meeting with the District Attorney of Suffolk County to discuss their complaints against the Filipino nurses and Vinluan. Because Sentosa's lawyer was a heavy campaign contributor to the DA, he could call in some chips.

On March 22, 2007, the District Attorney secured a Suffolk County Grand Jury indictment against the 10 nurses working at Avalon Gardens, including Elmer Jacinto, as well as their attorney, Felix Vinluan, for “endangering the welfare of pediatric patients” at a Suffolk County nursing home. The nurse-defendants and their attorney have become known as the "Avalon 11".

Last week, the New York Department of Health released the results of its investigation, finding that the pediatric residents of Avalon Gardens "were not placed in jeopardy" by the mass resignation of 10 nurses in 2006. This report was released less than two weeks before the immigrant nurses are scheduled for a January 28 jury trial in Suffolk County, New York, on charges of conspiracy and endangering patients in a pediatric ventilation unit at the Avalon Gardens Rehabilitation and Health Care Center.

Despite this exculpatory report, the Avalon 11 defendants are still concerned about their case because of the political connections of Sentosa’s lawyer with the Suffolk County District Attorney. They have launched a campaign to convince New York Gov. Elliot Spitzer to appoint a Special Prosecutor to take over the case from the Suffolk County D.A. Members of the Filipino community are encouraged to send letters to Gov. Spitzer at the State Capitol, Albany, NY 12224 or by faxing him at 518-474-1513.

Will justice be a myth at the Avalon 11 trial?

1 comment:

CCCCppppCCppp said...

My stepson was in Avalon Gardens. He left before the Filipino nurses did. I knew 5 of the nurses who were indicted. They were good and caring. The management was not. It endangered the residents by having inadequate supplies and equipment and by increasing the number of residents without increasing the staffing. The wrong people are being prosecuted.
-Steven Schmidt