Vunies High was the sister of heavyweight boxing legend Joe Louis. For 25 years, she was a public school teacher and counselor, but later in life she suffered from Alzheimer’s. She lived at The Heatherwood, a Detroit assisted living facility operated by a large Dallas corporation called Capital Senior Living Properties. This company did not take care of Vunies. On February 18, 2008, Vunies froze to death, having wandered outside “dressed only in pajamas and wearing only one shoe,” with “her face stuck to ice on the ground.”
Unfortunately, as ProPublica noted in its recent examination of health and safety problems at nursing homes,
One regularly cited deficiency involves unsafe wandering, a well-known problem that can result from inadequate supervision. A report this year in the journal Annals of Long Term Care, citing earlier research, said up to 31 percent of nursing home residents with dementia wander at least once. …
And that is far from the only health and safety problem facing residents of these homes.
A search for injuries produced 7,912 results. MRSA, a drug-resistant staph infection, yielded 514 entries. The word ignore is found 275 times, and entrapment, which can happen if a resident gets stuck in bed rails, brought 194 matches.
As ProPublica also noted, “For decades, federal auditors have flagged dangerous and neglectful conditions in U.S. nursing homes and faulted the government’s oversight.” The government has issued several recent reports on this topic, finding that in 2012, for example, “85 percent of nursing facilities reported at least one allegation of abuse or neglect to OIG [i.e. the federal government].” What’s even worse, according to the National Research Council,
[A] vast reservoir of undetected and unreported elder mistreatment in nursing homes may exist. Because nursing home residents as a class are both extremely physically vulnerable and generally unable either to protect themselves or report elder mistreatment they experience, the physical and emotional costs of elder mistreatment in such environments are likely to be very high.
We all should worry. As OIG also notes,
In 2050, the number of Americans aged 65 and older is projected to be 88.5 million, more than double the population of 40.2 million in 2010. Nursing facilities are likely to experience increases in their resident population; therefore, it is important to ensure that residents are protected from abuse and neglect.
Ha, that’s an understatement. Nursing home residents are some of the most fragile individuals in our society and depend on these institutions for their literal survival. So the very last thing we should be doing is allowing policies that remove this industry’s financial incentive to maintain safe facilities. Yet that is exactly what’s happening today.
First of all, in the last few years, many nursing homes purchased by investor groups have provided inferior care while shielding themselves from regulators and litigation by creating intricate structures of shell companies and subsidiaries.
But perhaps even worse for residents, today almost all nursing homes force them to sign forced arbitration clauses as a condition for admission, making it almost impossible for anyone later abused and neglected to sue nursing home companies in court. Families cannot “not sign” what a nursing home is forcing them to sign. They have no choice. This is especially true when families are dealing with emergencies where a family member is being thrown out of hospital after suffering some terrible illness or injury. If the family is lucky, they’ll quickly find a facility with a decent reputation, not too many state violations, hopefully accepts Medicaid - and they're fortunate if they find even that.
Here's why forced arbitration is a problem. Under forced arbitration programs, negligence and abuse cases must be resolved in private, secretive, corporate-designed dispute systems. Anti-patient bias infects this process. Nursing home arbitration companies have a financial incentive to side with repeat players who generate most of the cases they handle. Arbitrators are also not required to have any legal training and they need not follow the law. Court rules of evidence and procedure do not apply. There is limited discovery making it much more difficult for individuals to have access to important documents that may help their claim. Arbitration proceedings are secretive. As we have noted before, “[C]ourt proceedings are conducted in a public courtroom and leave a detailed public record that can inform industry practice and help develop case law, say experts. Not so with arbitration hearings, which are conducted in private and whose proceedings and materials are often protected by confidentiality rules.”
Decisions are still enforceable with the full weight of the law even though they may be legally incorrect. This is especially disturbing because these decisions are binding. Sometimes, victims must split the sizeable costs of arbitration with the nursing home.
And it’s not just the patient who suffers in this process. We all suffer. The lives of countless seniors and many millions of dollars in future health care costs have been saved as a result of lawsuits in court against nursing homes. Here are a few examples, reported in this Center for Justice & Democracy fact sheet:
- A 78-year-old woman, admitted to a nursing home for short-term hip and wrist rehabilitation, died after suffering severe pressure sores, malnourishment and dehydration. As part of the settlement, the company changed its patient monitoring and care procedures in each of its 65 nursing homes.
- A 63-year-old Alzheimer patient was strangled to death by the restraints in her bed rails while sleeping. As part of the settlement, the nursing home agreed to numerous operational reforms, while the bed rail manufacturer agreed to warn its customers about the dangers of entrapment.
- A 79-year-old nursing home patient suffering from Alzheimer’s disease drowned in a bathtub after being left unattended. As a result of this lawsuit, the nursing home installed safety strips in bathtubs and exercised closer supervision of its elderly patients.
And in a 2010 settlement in a case called Lavender v. Skilled Healthcare Group, Skilled Healthcare Group settled with a class of approximately 32,000 current and former residents of Skilled Healthcare LLC health and rehabilitation facilities, including family members of residents, who sued Skilled Healthcare Group for understaffing in their facilities in violation of California state law. The settlement of $50 million also included injunctive relief valued at approximately $12.8 million, requiring Skilled Healthcare Group to staff their facilities to meet state-mandated minimum requirements.
So why talk about this now? Because the Center for Medicare and Medicaid Services has just issued a notice of proposed rulemaking regarding long-term care facilities and has asked for public feedback on “whether agreements for binding arbitration should be prohibited.” Comments are due September 14, 2015. PLEASE EXPRESS YOUR VIEWS! And sign Public Citizen’s petition here.
Do it for Vunies High, whose family was able to seek justice and accountability on her behalf and sue. Do it for a loved one in your life. Hey, do it for youself!