Nursing Home Reform Offers a Unique Opportunity to Improve New York’s Nursing Home Care
New York is making national headlines for the wrong reason. Beyond Governor Cuomo’s awful handling of the nursing home COVID crisis, New York has shown that nursing home negligence is pervasive in every corner of the state. However, out of this tragedy springs an opportunity for real change. In the wake of the unacceptably high casualties in New York’s nursing homes, Governor Cuomo has promised “sweeping nursing home reform.”
As attorneys who sues nursing homes in multiple states, we can speak from personal experience that New York’s current laws regulating long term care facilities have serious deficiencies that put the lives of elderly residents at risk.
Below are some options that we see in other states which can usher in real change in New York’s long term care industry. Utilizing just some of these proposed changes will directly reduce injuries and death in our elderly residents.
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Amplifying Civil Damages in Confirmed Cases of Nursing Home Negligence
Many of these for-profit facilities have a focus on profits over people, and this is getting worse as more private equity funds are buying nursing homes and assisted living facilities (ALF’s). Many of these facilities only care about one thing: money. If the State of New York does not economically disincentivize bad nursing home care, these facilities will not change. The only way to get their attention, and institute change, is to affect their bottom line. This is precisely why state legislatures around the U.S. allow for a civil cause of action (i.e. a lawsuit) stemming from nursing home negligence. However, unfortunately, a 90-year-old with dementia cannot testify as to her damages. Her traditional compensatory damages, through a personal injury lens, are limited. There are no lost wages claimed. The patient inevitably is ill and has a limited life expectancy. Their damages are comparatively low to the rest of our population.
This is why legislatures in other states allow for extraordinary damages in confirmed cases of nursing home abuse or neglect. Some of these exemplary damages include attorneys’ fees awards, punitive damages and treble damages, when a defendant nursing home’s conduct is particularly bad.
Attorneys’ Fees Award in § 2801-d
Providing an attorneys’ fees provision into § 2801-d is an obvious and fair solution to the problem. In cases of confirmed elder abuse or neglect, why should the victim have to pay for their attorney? It was the nursing home that caused the harm, so they should be responsible for the victim’s attorneys’ fees. § 2801-d(6) should be amended to say, “the court may shall award attorneys’ fees to the plaintiffs” if a judgment is rendered in their favor.
Providing attorneys’ fees will give access to the legal system for New York’s most vulnerable, who otherwise could not afford a lawyer. Our firm has to decline many cases, even when the actual act is outrageous (hitting a resident, dropping a resident, stealing a resident’s wedding ring, not feeding a resident for weeks), if the victim does not die or suffer permanent injury, simply because the extensive litigation costs alone outweigh the damages awarded at trial. The litigation process is slow and expensive. If an injured patient is responsible for their own attorneys’ fees, nursing homes can get away with negligent acts with impunity, as litigating is prohibitively expensive for a plaintiff.
The clear remedy to this situation is to allow plaintiffs to recover attorneys’ fees if they win their nursing home neglect case.
Punitive Damages for Understaffing and Misallocation of Resources
In 2801-d(2), the provision that allows for punitive damages in cases where a defendant recklessly disregards resident safety, the subsection should be amended to include punitive damages against defendants that “involve wrongful conduct motivated primarily by unreasonable financial gain and/or under-funding facilities, if that unreasonably dangerous nature of the conduct, together with the likelihood of injury resulting from the conduct, was actually known, or should have been known, to the defendant.”
Allowing punitive, or punishment, damages allows a jury to multiply a victim’s compensation in order to punish bad corporate behavior. This is the solution to an otherwise limited compensatory damages award involving a sickly, elderly patient. If you tie corporate understaffing to the harm caused, the corporate parent should face punitive, punishment damages, beyond the damage to the individual patient.
Treble Damages as an Additional Form of Increased Damages
Treble damage would allow a claimant to have their compensatory damages multiplied by three. So if an elderly victim is only awarded $50,000 because of a limited life expectancy, treble damages would allow a three times multiplier to increase the plaintiff’s damages and further deter the corporate nursing home from allowing abuse and neglect in their facilities.
Amplifying civil damages in nursing home cases has a noticeable effect on the care and staff levels provided in these facilities. If a state has robust rules protecting injured nursing home residents, defendants fear understaffing and corporate misconduct because they can be held to account beyond the limited compensatory damages of an individually injured resident. There should be no legitimate pushback from the nursing home industry, since these damages are only in play in confirmed cases of neglect, after a jury has made their ruling.
Mandatory Staffing Reporting to the New York Government with Stiff Penalties for Understaffing
The root cause of most problems in nursing homes and assisted living facilities is understaffing. Facility owners take in set amounts of money from the government, mainly via Medicare and Medicaid. This taxpayer money is given to facilities in order to hire staff to provide direct care for elderly residents. In reality, many facilities provide as little staff as possible, because staff salaries are their highest non-fixed expense on the budget sheet.
Facilities get paid based on the acuity level (sickness and healthcare needs) of each resident they house. The sicker they are, the more care they require and therefore, the higher reimbursable rates they get from Medicare/Medicaid. The reason these nursing home corporations are so profitable, is they pack their facilities with high acuity, sick patients, get the highest reimbursable rates from Medicare, and then provide skeleton staff numbers. This inevitably leads to carnage in New York facilities.
Currently, there is no tracking of New York staffing levels relating to a census-wide resident acuity levels. Further, New York is one of only ten states in the country that does not have numerical staffing requirements.
By requiring each facility to track the acuity (sickness/care need) of the resident, and requiring each facility to show the hours per patient, per day staffing of each staff member, broken down by registered nurse, LPN, CNA, no New York facility would be able to lie about understaffing. The understaffing grift would essentially be over.
The same technique can and should be applied to assisted living facilities as well. Since ALF’s are not regulated by federal staffing guidelines, there is even less oversight in New York’s assisted living facilities.
Banning Arbitration Agreements in Long Term Care Admissions
As nursing home abuse litigators, we have seen a proliferation of arbitration agreements in long term care facility admissions paperwork. These arbitration agreements are harmful and against public policy for a number of reasons.
Arbitration is the intended forum for complicated legal issues involving two sophisticated parties. Say Chevron and Shell Oil have a multi-billion dollar legal dispute over a pipeline in international waters. This is probably best for a sophisticated engineering arbitration panel to decide. Additionally, both parties have equal bargaining power and will have a team of attorneys review the proposed terms.
Contrast this with the utter inequity in a nursing home arbitration agreement. On one side, you have a large nursing home chain with a team of lawyers, carefully drafting a one-sided legal agreement in their favor. On the other side, you have an elderly patient, likely confused, in the wake of being transferred into a new living environment from a hospital. They are told to sign a stack of papers. They literally have no idea that they are waiving a constitutionally protected right to a civil jury trial.
In addition to the inherent unfairness of nursing home arbitration, this takes nursing home abuse out of the public realm of our courtrooms and places it behind closed doors. This promotes secrecy over justice. Further, the nursing home gets to select the arbitrator(s) that will be issuing judgment against them. This is like the fox guarding the henhouse.
Banning nursing home arbitration agreements in New York will go a long way in protecting residents’ rights, ensuring public access to courtrooms and public accountability for unethical long term care facilities.
A COVID Victim’s Fund
Obviously, COVID has presented unprecedented challenges in long term care. However, New York facilities have handled the pandemic poorly, as evidenced by the scandal involving Governor Cuomo. A special victims fund, similar to what the legislature did with the 9/11 victims compensation, would serve a dual purpose of compensating families for harm caused, while not breaking the back of the long term care industry in New York.
More Transparent Corporate Ownership Rules
New York’s nursing facility owner/operators make complex corporate structures that allow them to siphon Medicare/Medicaid funds away from patient care to “related parties” that provide ancillary services to the facility. The ancillary companies provide everything from accounting services, the on-site pharmacy services, laundry services, to owning and re-leasing out the real estate to the facility owner.
These “ancillary companies” are technically separate from the facility but are owned by the same individuals that own the nursing home. These related parties hike up their fees and costs to siphon away money to owners under the guise of a necessary service transaction. This makes the facility poor while the owners get rich. It is a classic corporate shell game that makes public accountability and oversight more difficult.
If the State of New York requires all providers of any ancillary service to report if they have any ownership in a facility or facility chain that they provide services to, this will prevent the shell game. This ensures transparency in ownership and prevents the stealing of tax payer money that was intended for patient care.
Conclusion
We have litigated nursing home negligence cases in most states on the East Coast, including New York. What we have found is that states with more robust rules in favor of plaintiffs in elder abuse injury cases result in less neglect at these facilities.
At the end of the day, it is the money that drives this abhorrent corporate misconduct. Only by empowering New York families to seek meaningful justice in our courts will we be able to make it unprofitable to kill New York’s most vulnerable seniors.
