The family of a woman who was left unchecked for four days at an independent living facility in Albemarle County is hoping to shed light on what can happen at unregulated facilities.
Diane Franklin, 75, who died of cancer last year, was residing at Commonwealth Senior Living’s independent living facility in Albemarle when she broke her clavicle in bed and found herself unable to move. The facility had a check-in system offered to independent residents, but Franklin was not checked on by staff for four days.
In late January, Commonwealth Senior Living was ordered by an arbitrator to pay $900,000 in damages for its neglect of Franklin.
“Our family has been through a horrible experience and we believe that we need to do whatever we can to try to keep this from happening to other people,” said Jacqueline Carney, Franklin’s daughter. “We know we’re not the only ones it’s happened to, but it’s impossible to find out what’s going on in these independent living facilities.”
“We are not willing to be quiet about this,” she said. “Something has to change.”
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According to the lawsuit and deposition from Franklin, on the night of Dec. 9, 2015, she reached over to put her remote on the night stand and heard a crack in her shoulder.
She couldn’t reach her telephone. She had taken off the medical alarm pendant she typically wore around her neck because her contract was running out and she was planning on returning it the next day, she said in the deposition. Commonwealth Senior Living had its own system in place, and she was planning on signing up for that, she said.
The check-in system that Commonwealth Senior Living used at that time required residents to alert the staff that they wanted to be checked on. The resident would then call the front desk of the facility by 10:30 a.m. each day. If the resident didn’t call, a staff member was to call them. If the resident didn’t answer, a staff member was to go to the apartment to check on them in person. If a resident was not in his or her apartment after going through the check-in process, the receptionist was to alert the business office manager or the next shift. The staff was instructed not to call 911 or a resident’s family except in the case of a medical emergency.
Franklin had multiple sclerosis and used a motorized scooter to get around. She could support herself while standing as long as she had something to hold onto with one hand, she said in the deposition, but she did not have enough strength in her legs to walk freely without the scooter. She used her upper body strength to move herself to and from her scooter.
In the deposition, Franklin said she thought she would get checked on by a staff member on Dec. 10 when she didn’t call in or answer her phone. Instead, her daughter found her on Sunday, Dec. 13, unable to move and covered in her own feces and urine.
“I was thinking, I don’t want anyone to find me like this in this condition,” she said in the deposition. “And I thought, this is it, I’m going to die in my own bed in my own filth. And that’s just not the way I wanted to go.”
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Carney said she usually went to visit her mother once on a weekday and once during the weekend. She had called her mother on Dec. 12 and left a voicemail asking Franklin if she needed anything. Carney called again Dec. 13 and left another voicemail and became worried, she said, because it was unlike her mother to not call back after that long. She went to the facility shortly afterward.
Once she turned into the hallway, she said she saw a pile of fliers under her mother’s door and she could smell urine.
“Her door was unlocked and I opened the door and everything looked fine in the apartment, but the ammonia smell took my breath away,” Carney said. “I called out to her and said ‘Mom?’ and I barely could hear her and she said, ‘In here.’ And I walked forward in her apartment and her bedroom door was to the right and I could see her there trapped in her bed, and she just looked at me and said, ‘I need water.’”
Franklin spent six days in the hospital and was then transferred to live at the Colonnades, a Continuing Care Retirement Community in Albemarle. Shortly thereafter, she was diagnosed with breast cancer that had metastasized to her bones. She died in late April 2016.
“She wasn’t able to get her strength back after the incident,” Carney said. “She chose not to have care for the cancer because she was so weak she didn’t think she would be able to tolerate the treatments.”
Carney said her mom was a very independent person and that the family moved Franklin to the facility specifically for its check-in system.
“I trusted Commonwealth to do this for us,” Carney said. “They promised they would. I lived every day for the rest of my life with that regret.”
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Commonwealth Senior Living, which is based in Charlottesville, has 23 communities across the state with 1,500 employees and more than 1,500 residents. Some locations also are licensed for assisted living and memory care.
In spring 2015, the Commonwealth Senior Living facility in Albemarle implemented their first check-in program. It was completed by receptionists and other staff and written in a log book at the front desk.
According to Commonwealth Senior Living’s response to the initial lawsuit, the receptionist on duty Dec. 10 spoke to someone on the phone who she thought was Diane Franklin and marked in the call log that she had checked in, according to the response. On Dec. 11, the receptionist on duty saw another resident who thought she was Franklin and checked her in. On Dec. 12, the receptionist on duty misread the logbook and thought Franklin was out of town until Sunday. On Dec. 13, the activities director noticed the pile of fliers outside Franklin’s apartment and went to the front desk to ask whether she had been checked in, and was told she was out of the building, the response says.
In an emailed statement from Commonwealth Senior Living President and CEO Richard Brewer, he said they are extremely apologetic to Franklin and her family.
“The incident occurred as the result of a series of unintentional human errors and not any single individual,” he said in the statement. “The system failed and that is unacceptable. 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.”
Currently, the facility has an electronic system check-in system that was implemented in February 2016. A check in button was installed in the bathroom of every apartment, and residents are requested to push it by 10:30 a.m. each day. A report shows staff who has checked in. If someone hasn’t checked in, a staff member calls, and if they do not answer they go to check on the resident in his or her apartment.
“If someone is not in their apartment when the concierge checks, a note is made to record they were not there,” Earl Parker, chief operating officer of Commonwealth Senior Living, said in an email. “If they are not in their apartment, it is assumed that they are OK, as this is an independent living environment and residents are free to come and go from the community as they wish.”
They also have conducted additional training for all staff members who are responsible for the process and further highlighted the importance of accuracy, he said.
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In the state of Virginia, assisted living facilities are regulated by the Virginia Department of Social Services and nursing homes are regulated by the Virginia Department of Health. There is no regulatory body for independent living facilities.
“I'm determined to bring light to this and try to get some help,” Carney said. “I will admit, I am not a big believer in government involvement, but in this commonwealth if you treat an animal like this, you get charged with a crime. There's nothing in place to protect this vulnerable group of elderly people.”
Lori Smetanka, executive director with the National Consumer Voice for Quality Long-Term Care, said that it’s really “buyer beware” with these facilities.
“Ask questions about the services being provided,” she said. “Make sure that there's clear documentation of that, that it's part of the contract so that both the provider and the consumer, the resident and their family are very clear on what services are going to be provided, what they're going to be charged for those services, what happens if the service isn't provided — get as much detail as you can. If you have an opportunity to have the contract reviewed by legal counsel, that's always a good idea to make sure your rights are being protected.”
There’s no data about how many issues or complaints are filed at independent living facilities because there’s no system overseeing them, she said. There are also no advocacy services for residents, such as how residents at assisted living facilities and nursing homes have access to an ombudsman.
“One of the provisions of these contracts that's really troubling, and it's across the long-term care spectrum, is the use of these required arbitration agreements. That’s one of those areas that we've been advocating that it not be allowed, that consumers have to sign pre-dispute arbitration provisions, which are included in many of these contracts, because then that also puts a cover over what’s happening in these facilities,” Smetanka said.
Scott Gwartney, an attorney in Tallahassee, Florida, has been working in long-term care litigation for 25 years. He worked on a similar case in Augusta, Georgia, about seven years ago that was resolved out of court, and he is currently working on another case in Tallahassee that has now gone to arbitration.
“That is very common in the long-term care world, that they are utilizing arbitration agreements,” he said. “I have yet to run across anybody who signed one that realized they're signing away their right to a jury trial when they sign those.”
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The incident in Tallahassee is similar to what happened to Franklin. According to the initial complaint lawsuit, a woman named Karma Gleason fell on a Saturday in October 2015 in her independent living apartment. She later told a family member that she kept pushing her emergency pendant, but no one came. She was found on Tuesday by a housekeeper and died eight days later.
The facility had emergency pendants, a call cord in the bathroom that residents were supposed to pull by 10 a.m. every day and a mealtime attendance check-in, according to the lawsuit.
“I hear this in long-term care litigation all the time, that families feel terribly guilty, and I heard a little bit of this from this family because we've got the answering machines messages,” Gwartney said. “Several family members had called. There's a son-in-law who faithfully called every Sunday afternoon, but it wasn't unusual for her to be out at activities, so he just didn't think much about it when she wasn't there.”
He said many of these incidents never see the light of day because of the arbitration agreements and there are probably more situations like this happening.
He’s not a big fan of a lot of regulation, he said, but he thinks there needs to be some oversight.
“If independent living facilities cannot better police themselves to take good care of the elderly population that they serve, as they promise to do when accepting a new resident, then governmental agencies are going to have to step in to ensure that this vulnerable population is protected from the industry,” he said. “Governments will do that by imposing regulations and periodic inspections. If and when that happens, the independent living facilities cannot be heard to complain about the burden of regulations that are imposed on their industry. The independent living facilities that I am familiar with are all operated by companies that also operate [assisted living facilities], often under the same roof, so they know how burdensome governmental regulations can be.”
Not all independent living facilities offer services. Some function essentially as senior apartments or 55-and-up communities, with no added services. But as the aging population continues to grow, according to Charles Gavin, the Franklin estate attorney, there will be more competition to attract new residents at facilities.
“I think because the competition in the space is so severe, facilities are going to continue to offer extra plans to residents that may be above and beyond a purely and independent living status,” Gavin said. “And if they do, the family members need to be careful that those extra duties may not be covered under health care provider standards, like an assisted living facility would be covered, even though they lend the general appearance that they're health care-related services.”