Retired Hollywood agent Frank Baldwin Sr. had Alzheimer’s disease and depended on others for nutrition, water and medication. But his family says he was otherwise healthy when he moved into the Canyon Valley Memory Care Residence in Green Valley.
Sixteen days later, the 84-year-old father of six, whose former clients included Red Skelton and Victor Borge, was found unconscious, malnourished and dehydrated, a civil action says. He’d lost 14 pounds and had not been fed or given water for a week, says the lawsuit his widow, Joy Baldwin, filed in Pima County Superior Court in October. He never recovered.
The assisted-living facility and its for-profit parent company, Portland, Oregon-based Frontier Management, did not initially respond to the legal action with a denial of responsibility for what the lawsuit described as Frank’s “cruel, inhumane and agonizing” death.
Rather, it said that Joy had no right to sue them. The reason Frontier cited was a piece of paper Joy did not remember signing.
A proliferation of corporate ownership of nursing homes and assisted-living facilities in Arizona and the U.S. in the past 10 years means more complaints of elder abuse are facing a major hurdle if they want to file a lawsuit. That’s because of a practice of asking residents and their loved ones to sign a piece of paper known as an “arbitration agreement” intended to prevent residents and their families from suing in court.
In arbitration, disputes are typically decided in private by an independent arbitrator rather than in a public court by a jury.
“It absolutely is a public safety issue. So many arbitration agreements call for a gag order of secrecy. No one can say anything. No one knows what transpired,” says Barry MacBan, who is Joy Baldwin’s attorney.
The arbitration document is part of the stack of papers families are asked to sign when a loved one is placed in a facility. Many family members like Joy Baldwin say they are signing the agreements during a time when they are emotionally compromised without understanding what the documents mean.
Facilities say the agreements protect them from frivolous lawsuits and give consumers a faster option than the courts. But critics say such arbitration agreements are making it harder for the public to learn what’s happening inside long-term-care facilities.
Litigation is adversarial and expensive, but it’s one of the few ways the public can learn about abuse and other wrongdoing in nursing homes and assisted-living facilities in Arizona, says Melanie Bossie, a Phoenix-based lawyer who has represented elderly Arizonans and their families for 12 years.
Government details about what’s happening in long-term care facilities in Arizona are split between two state agencies and the federal government. What’s available is often not sufficient to determine patterns of harm, critics say.
Some lawyers have been able to successfully argue that arbitration agreements are unenforceable. But critics say the agreements are another obstacle to an already difficult process of finding a remedy when something goes wrong.
“It keeps people from coming forward. It also keeps lawyers from wanting to accept the case,” Bossie says. “The agreement will be buried in an 83-page document that the family members are asked to sign. Even myself as a lawyer wouldn’t catch it ... Currently in 75 percent of my cases I have to argue to the court against the defendant’s motion to compel arbitration.”
Challenging arbitration agreements in court also adds cost and time — three times the average total cost and 10 months longer to settle, a 2015 analysis by Aon Risk Solutions found.
DATA on injuries is lagging
Data on patients harmed in nursing homes and assisted-living facilities lags behind hospitals, though there is a growing focus on safety in nursing homes, says Robyn Grant, director of public policy and advocacy for the Washington, D.C.-based National Consumer Voice for Quality Long Term Care.
A Government Accounting Organization report released in October found a 21 percent increase in consumer complaints about nursing homes between 2005 and 2014. The report says the U.S. Centers for Medicare & Medicaid Services reduced the number of facilities subject to increased inspections because of budget constraints and concluded that the federal agency could do more to carry out its oversight responsibilities.
And the Office of Inspector General of the U.S. Department of Health and Human Services released a report in 2014 that found 22 percent of Medicare beneficiaries discharged from a hospital to a nursing home experienced an adverse event within a month and that 11 percent experienced temporary harm. Almost 60 percent of those events were preventable, the report found. Prior to this investigation, adverse events had been looked at in hospitals, but not nursing homes, Grant says.
Reports and ratings about assisted-living facilities are more difficult to find. Skilled nursing homes are subject to federal regulation, but not assisted-living facilities like Canyon Valley Memory Care — even though some of them accept Medicaid.
Assisted-living facilities in Arizona range from “supervisory” communities of older people living independently to “personal care” and “direct care” facilities like Canyon Valley, where residents like Frank Baldwin have dementia and need assistance with what’s known as “activities of daily living” such as showering, eating and using the bathroom.
Arizona has 147 Medicare- and Medicaid-certified nursing homes, about 1,800 assisted-living “homes” with 10 or fewer residents and 260 to 270 larger assisted-living facilities like Canyon Valley, with more in the pipeline, the Arizona Assisted Living Federation of America says.
Regulations of the assisted-living industry vary greatly from state to state and there is no standard national definition. There are three levels of care in Arizona.
Better transparency would do a lot to reduce abuse and neglect of senior citizens who are in Arizona facilities, says Tucson elder law attorney Robert B. Fleming.
“If it was easy to see whether a given aide had been charged with an assault on patients, that aide would never work in the industry again,” Fleming says. “If it was easy to see whether a facility had a string of assault complaints, that facility would either change ownership or close down pretty quickly.
“But that is not happening. It is not easy to see those things.”
BARRIERS TO TRANSPARENCY
Arbitration agreements that keep complaints of abuse and neglect out of the public court system are just one of many barriers to transparency in nursing homes and assisted-living facilities:
- There were 415 substantiated cases of abuse, neglect and exploitation of vulnerable adults in Pima County during the last fiscal year, records from the state’s Adult Protective Services show. The majority of cases were neglect. But the state won’t release more specific details, citing privacy concerns.
- Arizona’s Adult Protective Services maintains a registry of individuals known to have abused, neglected or exploited a vulnerable adult, but the registry does not identify most perpetrators by city, county or facility.
- The Arizona Department of Health Services has an online database called AzCareCheck that includes substantiated violations in Arizona licensed nursing homes and assisted-living facilities going back three years.
But the online database does not allow the public to see the specific allegations against the facilities, so there’s no way to track patterns in complaints or assess their severity.
The only way to see more detail about complaints is to review a facility’s paper file in a state office in Tucson or Phoenix. None of the files contain the full text of specific complaints, however, so it can be difficult to discern the scenarios that prompted them.
State officials say they are protecting the identities of complainants in part to prevent retaliation, since often those complaining are current or former staff members or family members of current residents.
- A star rating system operated by the U.S. Centers for Medicare & Medicaid Services rates nursing homes, but not assisted-living facilities.
- Most patient safety research has been done in hospitals, not nursing homes and assisted-living facilities. The National Patient Safety Foundation, in its recent “Free from Harm” report, said research into patient safety across the continuum of care should be a priority.
The ARBITRATION agreement
Joy Baldwin signed what’s called a “pre-dispute arbitration agreement,” which means the consumer agrees in advance that if a problem arises, the dispute will be decided in arbitration, not through a lawsuit.
Proponents of those agreements include American Health Care Association, a trade organization representing the long-term care industry. Issues serious enough to require formal dispute resolution are extremely rare in long-term care, association spokesman Greg Crist says — fewer than half of 1 percent of nursing-home residents and fewer than one-tenth of 1 percent for those in assisted-living facilities.
Also, industry leaders say that removing arbitration as an option would increase financial burdens on the facilities and threaten their ability to deliver quality care.
In a report to Congress last year, the association wrote that nursing homes, particularly those owned by large corporations, are often the target of frivolous lawsuits focused on maximizing money for lawyers. Most attorneys who take on nursing home and assisted-living cases are working on contingency, which means they earn a percentage of any settlement or judgment received.
“Opponents want to paint arbitration as though a family is settling for less than their full legal rights. Not true,” Crist says.
The association has opposed a proposed federal rule to restrict the use of pre-dispute arbitration in nursing homes.
Advocates of arbitration agreements have the backing of the U.S. Supreme Court, which in 2012 allowed for the enforcement of pre-dispute arbitration clauses in elder care. The Supreme Court ruled that the clauses were not barred by the Federal Arbitration Act and therefore could be included in consumer contracts.
The arbitration agreement Joy Baldwin signed was typical: “The parties agree that all facts and other information relating to any arbitration arising under this agreement shall be kept confidential to the fullest extent permitted by law,” it says.
It goes on: “The parties understand and agree that by entering this arbitration agreement they are giving up and waiving their constitutional rights to have any claim decided in a court of law before a judge and a jury.”
Proponents of arbitration say it’s faster and cheaper. A November 2015 report from Aon Risk Solutions backs up that claim — the total cost of claims resolved with arbitration agreements in place is 7 percent lower and three months faster than for claims resolved without arbitration agreements in place.
The report suggests that arbitration is a more economical decision for the facilities since there’s a lower chance of payments of over $1 million.
Critics of arbitration say it’s not always cheaper, and moreover, stress that the real detrimental impact is to the public because cases are typically decided in secret.
In a letter to the Centers for Medicare & Medicare Services in October, 16 state attorneys general (Arizona’s was not one of them) called for prohibiting the agreements altogether.
“Pre-dispute binding arbitration clauses can result not only in harm to consumers, but also in a systemic failure to hold accountable long-term care facilities that abuse the trust placed in them by consumers,” they wrote.
The Arizona Department of Health Services posts notices of enforcement actions against nursing-home and assisted-living facilities on its website, and deficiencies they cite are easy to find, says Karen Barno, chief executive officer of the Arizona Assisted Living Federation of America.
Examples of deficiencies include giving the wrong medication dose, not adhering to residents’ dietary requirements and having residents who develop pressure ulcers.
Barno says consumers who call her organization are more savvy about assisted living than they were 10 or 15 years ago. They often have already looked the facility up on the Arizona Department of Health Services website and know if something goes wrong they can call the state and complain, she says.
The state is doing a good job of “taking the temperature” of the industry and making sure it is safe for consumers, Barno says. She says she rarely hears of serious wrongdoing because the facilities and the state are so responsive.
But MacBan, Baldwin’s attorney, says the only way the public will ever know about abuse and neglect in local nursing homes and assisted-living facilities is through litigation because other regulatory oversight is lacking. He says his client filed a complaint about Canyon Valley Memory Care with the state, but it didn’t go anywhere.
Canyon Valley’s file with the Arizona Department of Health Services shows complaints in 2014 about a resident not receiving adequate medication or water. The complaints were not substantiated following an investigation.
The state has found some deficiencies at Canyon Valley during the past two years, and the facility has corrected all of them, records show. In March, Canyon Valley agreed to pay a $1,250 fine for failing to document first aid and/or CPR training in five staff files and for failing to ensure two staff members had evidence of fingerprint clearance.
Government studies have repeatedly shown that state inspection agencies fail to cite or penalize facilities for harming residents, even when they find serious injuries, says Grant, of the Consumer Voice.
“Moreover, many serious problems are never cited at all. Consequently, one of the only remedies for residents of long-term-care facilities and their families is to hold the facility accountable in a court of law,” she says. “However, pre-dispute arbitration agreements take away this right.
Last year, 24 percent of 1,830 allegations reported by the public about residential facilities to the Arizona Department of Health Services were substantiated, state records show. Residential facilities include both behavioral health residential and assisted-living facilities. The allegations came in 1,241 complaints.
In Arizona nursing homes, 9 percent of 1,480 allegations reported last year in 1,221 complaints were substantiated, state figures show.
A pre-dispute arbitration agreement signed by one of Theresa Tedesco’s three children was the first hurdle the family of the onetime Broadway dancer faced in trying to seek justice over the circumstances of her death.
A lawsuit her family filed in 2014 says Tedesco, who had dementia, was completely dependent on Emeritus at Tanque Verde, 9050 E. Tanque Verde Road, and that the facility failed to properly take care of her prior to her 2012 death at age 96. Emeritus has since merged with Brookdale, the largest elder-care company in the U.S. Emeritus denied wrongdoing in Tedesco’s death, saying she died of natural causes.
Citing the arbitration agreement in its motion to dismiss the case, lawyers for Emeritus argued that the company’s bottom line was at stake.
“By the mere filing of the complaint, plaintiffs have proceeded in a manner which violates the arbitration agreement and exposes Emeritus to considerable financial harm, regardless of whether plaintiffs are successful on the merits of the underlying claims,” the Phoenix-based lawyers for the assisted-living facility wrote in May 2014.
The Tedesco family’s civil action alleged the facility discovered too late that Tedesco had a bacterial infection called Clostridium difficile, known as C. Diff, which is one of the most serious health complications affecting U.S. nursing home residents.
Tedesco wasn’t tested for C. Diff even though her family says she’d had symptoms for weeks. As a result she “was left to just deteriorate without receiving any medical assistance at all,” the lawsuit says.
The lawsuit says Tedesco’s granddaughter knew something was wrong when she found her normally feisty grandmother slumped over in her chair when she went for a visit. Her grandmother had a glazed look in her eyes, and there was no intervention from indifferent staff members, the lawsuit says. The facility denied any wrongdoing.
MacBan and law partner David Toone were successful in using an Arizona appellate court decision to argue that arbitration agreements in both the Baldwin and Tedesco cases were not enforceable. Their argument specifically applied to the wrongful-death parts of the cases.
The assisted-living facilities then tried to argue that other allegations in the lawsuits, those citing violations of the Adult Protective Services statute, should still be resolved in private arbitration. But the court ruled in the plaintiffs’ favor in both cases.
In the Tedesco case, a judge found that since only one of the three Tedesco children signed the arbitration agreement, it was not enforceable. Weeks before the case was set to go to trial, and right before an expected ruling on whether the Tedescos could recover punitive damages, the parties reached a settlement. The settlement is confidential but two years of filings, motions and exhibits in the case remain part of the public court file.
When asked specific questions about arbitration agreements at its facilities, Brookdale officials replied with one statement, saying the company strives to, “understand issues brought to our attention by residents and their families and resolve matters efficiently through the appropriate channels.”
Pima County Superior Court Judge Sarah Simmons ruled on March 7 that the agreement Joy Baldwin signed was, “unconscionable,” that the costs of arbitration were high, and that the allegations against Canyon Valley should proceed in open court.
Simmons also ruled that Joy could pursue punitive damages.
“The court finds that this state has a public policy to prevent elder abuse and to examine it, and that the arbitration agreement effectively circumvents that public policy,” Simmons ruled.
Canyon Valley and Frontier Management have consistently denied any wrongdoing. Canyon Valley’s executive director, Jackie Stewart, says she assumed her position after Frank Baldwin’s 2014 death, has no knowledge of the case and therefore can’t comment.
The Baldwin case was proceeding in court as of last week.
But legal challenges to arbitration agreements remain a gamble — and fighting them takes time and money, elder attorney Bossie stresses.
Crist of the American Health Care Association says his organization has found that courts are increasingly enforcing arbitration agreements, not finding them unconscionable.
Many arbitration agreements — including the one Joy Baldwin signed — clearly state that signing them is not a precondition of admission. Indeed, that provision is one of the American Health Care Association’s “best practices,” Crist says.
People often just don’t read the fine print — or as in Joy’s case, aren’t aware of what they are signing. MacBan says no one explained the document to Joy — something facilities should be doing, Crist says.
The best thing for consumers to know is that they don’t have to sign the documents, Bossie and others say.
If you refuse to sign the pre-dispute arbitration agreement when you lease a car, the dealer can decline to give you the car. The same is not true for nursing homes and assisted-living facilities, says Fleming, the Tucson elder law attorney.
“You are permitted to strike a line through it,” he says. “Do not initial it. It’s not a condition of admission.”
Reporting for this project is supported by a grant from the nonprofit The Commonwealth Fund through the Association of Health Care Journalists. Next in our series: Misdiagnosis