$900,000 arbitration decision shines spotlight on independent living

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Diane Franklin
Diane Franklin

Better recordkeeping and adherence to corporate protocols could have prevented the incident that led to an arbitration decision that a Virginia senior living community pay $900,000 to the estate of a former resident who died four months after not being checked on in her independent living apartment for four days, the resident's daughter told McKnight's Senior Living.

Improved consumer education, regulation of such communities and the elimination of mandatory arbitration agreements might prevent similar events from happening to future residents, she added.

“We are extremely apologetic to the resident and her family for this tragic incident,” Richard Brewer, president and CEO of Commonwealth Senior Living, operator of the community involved in the case, said in a statement to McKnight's Senior Living. The company has taken steps to help ensure that mistakes are not repeated, he added.

Check-in program has appeal

Diane Franklin, 74, was living in a three-bedroom, $1,400-a-month apartment in the greater Charlottesville, VA, community, but her chronic progressive multiple sclerosis made the idea of the daily check-in service available at Commonwealth Senior Living at Charlottesville enticing, said her daughter, Jacqueline Carney. So in May 2015, Franklin moved to a smaller, two-bedroom independent living apartment at Commonwealth that cost $3,285 a month, Carney said. Commonwealth was the only local independent living community that offered such a program, she added.

“My mother craved independence. She knew a day was coming when she wouldn't be able to do all of her activities of daily living on her own. She knew she would require assisted living and then probably skilled nursing at some point,” Carney said. “She was prepared for that, but she wanted to be independent as long as she could be, and this independent living check system was the perfect way for her to segue out of community living and bridge that gap until she did need assisted living or higher levels of care.”

Under the daily check-in program described in the resident handbook, residents were to call the front desk by 10:30 a.m. every morning. If a resident didn't call, then a staff member would call the resident. If the resident didn't answer the telephone, then a staff member would visit the apartment to make sure the resident didn't need assistance.

On a Wednesday evening in December 2015, however, Franklin broke her collarbone while setting a television remote on the nightstand next to her bed. (The family later would link the fracture to breast cancer that had not been diagnosed yet.)

“My mother relied on her upper body strength to get upright in the bed and then she could make a transfer over to her electric scooter,” Carney said. “Because of that broken collarbone, she couldn't move in the bed.”

Staff members did not check on her, and Carney found her mother still in her bed, which now was soiled, on the following Sunday afternoon.

Franklin was taken to the hospital with two wounds and later moved to another community, where she died in April 2016. Her weakness made it difficult to participate in physical therapy and led her to decide not to be treated for cancer, Carney said.

Arbitration

The Supreme Court will hear oral arguments Wednesday in a nursing home arbitration lawsuit that could change the future of the industry, according to those close to the case, sister media brand McKnight's Long-Term Care News reported.

The lawsuit, Kindred Nursing Centers v. Clark, revolves around three consolidated wrongful death cases in which arbitration agreements were signed by people who had power of attorney, wrote staff writer Emily Mongan. The Supreme Court of Kentucky sided with the plaintiffs, finding that residents' arbitration agreements were not binding because the people who had power of attorney were not specifically granted permission to waive residents' rights to trials.

The American Health Care Association filed a brief in August requesting the Supreme Court review the case, calling the Kentucky high court's ruling “erroneous.”

Operators are still awaiting the ultimate fate of a new federal rule that disallows pre-dispute arbitration agreements during nursing home resident admissions. The rule originally was set to go into effect Nov. 28, but a federal court granted AHCA's motion to stop the ban from taking effect.

Representatives of AHCA's sister organization, the National Center for Assisted Living, had encouraged its members to comment on the rule when the Centers for Medicare & Medicaid Services was finalizing it in 2015, fearing that a ban at the federal level also might lead to state-level prohibitions in assisted living.

In his late-November ruling, Judge Michael P. Mills of the U.S. District Court for the Northern District of Mississippi said the case put the court in an “undesirable position,” because the court believes that the ban is “based upon sound public policy.” In the end, however, Mills said, the case raises in-depth legal questions about the authority of CMS that must be addressed before the rule can take effect. The court's decision noted that CMS could show that it had the authority to ban the agreements, something it has not done so far.

Officials with the Department of Health and Human Services subsequently filed notice that they would challenge efforts to stop the ban, but it is unclear whether the new administration will pursue the matter.

 

‘A series of unintentional human errors'

An investigation, Carney said, revealed that staff members at Commonwealth Senior Living at Charlottesville did not follow corporate policies for maintaining the logbook meant to document resident check-ins. Some spaces in the logbook where times should have been recorded were left blank, Carney said, adding, however, that she was told that the blank spaces did not necessarily mean that checks had not happened.

“The incident occurred as the result of a series of unintentional human errors and not any single individual,” Brewer said. “The system failed, and that is unacceptable.”

Under the terms of Franklin's residency agreement, the case went to arbitration after a lawsuit was filed, and proceedings began before Franklin's death. Ruling in late January 2017, the arbiter wrote: “I found this to be a horrific experience for Diane Franklin and one which caused her immeasurable injury, physical pain, mental anguish, humiliation, embarrassment and inconvenience.”

Brewer said that Commonwealth admitted liability shortly after the event and plans to pay the $900,000 in damages as determined by the arbiter “promptly.”

“The incident revealed a gap in the daily resident check-in system we implemented when we began providing independent living services, and we promptly installed an electronic check-in system in an effort to make sure this type of incident doesn't ever happen again,” he said. “Again, we are extremely apologetic this ever occurred and hope the legal award provides some closure to the family in this matter.”

Commonwealth's new check-in procedure requires residents to push buttons in their rooms, rather than contact the front desk via telephone, every day by 10:30 a.m. The rest of the program remains the same. All employees have been trained in the new system, according to the company.

Carney said that she and her brothers like the idea of an electronic check-in system. “However, this all goes back to the oversight,” she said. “If no one is looking at that report each day, it's no different than the daily check-in on paper that they were using.”

Commonwealth said that two of the employees responsible for the series of errors related to the incident with Franklin no longer work for the company. Also as a result of the incident, the company said it is encouraging more independent living residents to wear the emergency call pendants that it provides to residents at no additional cost. Franklin reportedly was not wearing such a pendant when she became trapped in her bed.

In addition to the pendants and the daily check-in program, the company said that the range of safety features it offers independent living residents also includes 24-hour receptionist coverage, emergency pull-cords in rooms and video surveillance of common areas.

What's next

Carney said that she and her two brothers are talking to members of the media and plan to contact state legislators and also try to raise awareness among advocacy organizations representing operators to try to prevent similar incidents from happening to others.

“My concerns are much bigger than Commonwealth,” she said.

More consumer education is needed so that potential residents and their families understand the offerings of independent living, Carney said.

“If you have assisted living and memory care or even a skilled nursing facility associated in the same facility as the independent living, to the families like us, independent living is the easiest part of that care,” she said. “You as a consumer walk into that thinking, ‘Fabulous. They already have their act together with assisted living and skilled nursing and Alzheimer's care. This should be a cakewalk for them. If they're keeping track of those people, it should be really easy to keep track of the independent living people.' ”

Carney, who is a medical professional, and her siblings were not aware that independent living was not regulated in some way when her mother became a resident at Commonwealth, she added.

“We didn't even know to ask the questions,” Carney said. “We thought that independent living would have some standards in place like the assisted living and the memory care, if not on a state level then on a corporate level.”

Regulation, she said, is needed to give communities an incentive to improve.

“I'm not a person who is a big believer in government getting over-involved in things, and all I know is what we've learned for the commonwealth of Virginia,” Carney said. “There are no standards, there's no oversight, there's no mandatory reporting when incidents like this happen.”

The lack of regulation makes it difficult for families to research and compare communities, she said. “The vast majority of these facilities and corporations require arbitration,” Carney added. “It's incredibly difficult to find out what's even going on in these segments of the industry with independent living.”

Regulation even could be healthy for operators' bottom lines, she said.

“The bottom line is, this is a business,” Carney said. “They go into it to do well, make money. I get that. But you can do better and make more money if you sit back, assess and think about it.”

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