The letter went
out to about 1,900 Californians a few weeks ago from law firms bringing a
class-action suit against one of the country’s largest assisted-living
chains.
If the recipients, or their
family members, had lived in a community operated by Sunrise Senior
Living in recent years, “we would like to speak with you regarding your
residency and experience,” the letter said.
It
was the latest action in an ongoing campaign: Since 2013, a group of
law firms has systematically sued several major chains operating in the
state, employing an unusual strategy.
“It
all boils down to the use of assessments, or lack thereof,” said
Kathryn Stebner, the trial counsel in the case. “These are à la carte
facilities — the more needs you have, the more you have to pay. So, they
assess you.”
The plaintiffs’ complaint, filed in 2017
and now before the U.S. District Court for Central California, argues
that when staff members conduct such periodic assessments — to determine
whether a resident needs help bathing or dressing, for example, or
suffers from dementia — the facilities don’t use the results to
determine an adequate number of staff members.
Instead,
the plaintiffs argue, administrators make staffing decisions
financially, based on budgets and return on investment. When assessments
show increasing needs, the suit alleges, fees rise but staffing ratios
may not change.
“People pay more, but they’re not getting more care,” Ms. Stebner said.
The
suit claims that Sunrise is misrepresenting its practices and deceiving
customers, in violation of state business statutes, and lacks enough
trained staff members to deliver the care specified in resident
contracts and marketing materials.
“The business model is fraudulent, and it’s putting people at risk,” Ms. Stebner said.
Sunrise’s
practices are unlawful in another way, as well, the suit charges. “If
you take an elder’s property, knowing it could harm them, that’s
financial elder abuse,” Ms. Stebner said. “In this case, they’re taking
their money.”
In an emailed statement,
Sunrise denounced “baseless lawsuits like these, in which the
plaintiffs’ lawyers file copycat allegations,” a reference to the firms
having brought four previous suits using essentially the same tactics.
Sunrise called the claims “categorically false.”
The lawyers’
scorecard to date: two settlements reached in 2016, totaling $13 million
from Emeritus Corporation (since merged with Brookdale Senior Living)
and $6.4 million from Atria Senior Living.
Suits
against two other chains, Aegis Living and Oakmont Senior Living, will
proceed when and if courts certify them as class actions. The Sunrise
case, with a “purported class” of 13,000 current and former residents in
California, also awaits certification. (A smaller group received the
letters asking for information.)
But
in the meantime, the plaintiffs have compelled the chain, with 268
facilities across the country and 52 in California, to turn over a trove
of documents showing how it determines staffing levels.
Sunrise
argued that those were “protected trade secrets.” The judge disagreed.
Given that this is an industry whose practices often remain opaque, that
might constitute a victory in itself for the plaintiffs.
“It
gets at internal systemic issues,” said Eric Carlson, a directing
attorney at Justice in Aging, a legal advocacy group not involved in the
lawsuits. When facilities disclose information like how much time staff
members spend on tasks, “it gets at what’s happening behind closed
doors.”
Are assisted-living facilities understaffed? It’s a common complaint from residents and families, but one difficult to document.
“We
don’t have a very clear picture of what staff looks like in assisted
living,” said Kali Thomas, a health services researcher at the Brown
University School of Public Health.
“We don’t know
what an individual assisted living’s staff ratios are. Many states don’t
even require them to track or report them.”
Offering
a less institutional environment for seniors who require help with the
so-called activities of daily living — but don’t need round-the-clock
care in a nursing home — the assisted-living industry can house close to
a million people in almost 30,000 facilities nationwide.
It
includes both small four-bed care homes and complexes with more than
100 residents, but chains dominate the field. And the industry has
staved off the kind of regulations that make it much easier to see
what’s going on — for better or worse — in nursing homes.
Though
Medicaid pays for a small but growing proportion of residents, assisted
living remains primarily a private-pay option. (The average cost last
year, in one annual survey: $4,051 a month nationally, and $4,500 in California.)
The
lack of federal dollars helps explain why assisted living is subject
not to federal oversight, like nursing homes, but to state regulations,
which vary wildly.
Colorado, for
instance, requires that an assisted-living facility employs one aide per
10 residents during the day, and one to 16 at night. In Missouri, it’s
one to 15, and one to 25. Only 19 states specify minimum staffing ratios
at all.
Families can find it
difficult to make informed decisions about assisted living; there’s no
equivalent of the federal inspection findings and quality rankings at
Nursing Home Compare. State websites are inadequate substitutes, a
recent study found.
Yet the people moving into these complexes need more help than they did years ago.
“They’re older,” Ms. Thomas pointed out. “They’re entering with more chronic diseases.” More than 40 percent have moderate or severe dementia, a study in the journal Health Affairs reported.
The
California lawsuits don’t seek individual damages, and because the
classes involved contain thousands of individuals, their checks from
settlements so far have been paltry — a few hundred dollars each.
But the suits also seek “injunctive relief,” a court-ordered requirement that the defendants change their practices.
“They’d
be told to be transparent,” Ms. Stebner said. “We want them to use the
assessments properly and to tell people what they’re doing. And to have
sufficient staff.”
Veteran researchers
sounded more skeptical about the lawsuits’ impact. Understaffing
represents “a complaint about long-term care in general,” said Dr.
Philip Sloane, a geriatrician at the University of North Carolina School
of Medicine. “Of course it’s true. The question is, what is realistic?”
“These
places do set very high expectations,” said Sheryl Zimmerman, a health
services researcher at the University of North Carolina School of Social
Work. “Everyone’s website sounds like Utopia.”
But
she added, “These group settings cannot individualize everything for
every person.” Being forced to add staff members could make assisted
living even more expensive, unreachable for many older adults, she said.
Dr. Sloane said
facilities might respond to the suits by adding disclaimers to their
marketing: “They’ll probably address the promises, rather than the
care.”
After Florida increased
staffing requirements for nursing home aides in 2001, Ms. Thomas
recalled, she led a study showing that the homes complied, then cut
hours for their housekeeping and activities staffs.
Assisted-living providers targeted by lawsuits might respond similarly, she noted.
Mr.
Carlson saw it differently. It’s tough to compel substantial changes in
long-term care facilities, he acknowledged. But, he said, “You get
pressure from residents, from surveyors, from plaintiffs’ counsel, and
it all pushes providers to be more accountable to residents.”
Full Article & Source:
Some Assisted-Living Residents Don’t Get Promised Care, Suit Charges
No comments:
Post a Comment