What an Injured Resident Should Know When Pursuing Litigation of an Assisted Living Facility

Residents in assisted living retirement communities may have less infirmities and fewer care needs than traditional nursing home residents, but these facilities still possess many of the same risks—along with a few additional ones. The primary focus of the assisted living industry is quality of life for seniors and their families. However, residents of assisted living facilities (ALFs) often have far more dismal experiences in reality. Disabling fractures, medication errors, resident assaults, avoidable pressure ulcers (bed sores), and elopements are common occurrences in assisted living facilities, as well as in more highly monitored skilled nursing facilities.

To perceive assisted living facilities as “supervised hotels for the healthy elderly” is wrong. Not only do residents of assisted living facilities require and contract for supervised care that addresses identifiable, chronic, and problematic impairments, they also become vulnerable to harm when supervised care is not provided.  Pure and simple, an assisted living facility is a place that provides care to those who possess diminished physical, mental, and self-care capacities.

Although the occurrence of an injury of an ALF resident may be obvious, identifying the reasons it happened can be difficult. However, these factors that contribute to liability are crucial to pursuing the case.  They include inappropriate admissions or retention of a resident; lack of regulatory oversight and compliance; minimal training, education, and skill in the staff; diminished availability of medical and licensed nursing care; and contract claims.

Inappropriate admission or retention. A potential ALF resident must first be examined by a physician and certified as eligible for the level of care the facility offers in order to be admitted. ALF care may not be suitable enough for people who are unable to ambulate (either by walking or in a wheelchair), who possess advanced pressure ulcers, or who need nursing services such as tube feeding and respirators. Even if such residents are appropriately admitted, many will experience gradual loss of their ability to safely reside in the ALF’s less intensive environment.

Medicare and Medicaid do not pay for assisted living in all cases.  The lack of government funding gives ALFs economic incentives to keep private pay or long-term care insurance residents in the facility.

While supplemental health services are occasionally provided at the facility, due to the degenerative process of aging, certain residents’ care needs surpass the facility’s abilities to meet them, as they are simply not designed to serve those with advanced illnesses.

Residents who are in need of a higher level of care but are not moved may be vulnerable to avoidable, detrimental harm. An inspection of the facility records will often show either an inadequate, hackneyed completion of the annual certification or a failure to reevaluate a resident following an unfavorable change in condition that renders continued residency unsuitable.

Lack of regulatory oversight and compliance. Unlike skilled nursing facilities that are universally federal and state regulated and accept Medicare or Medicaid reimbursement, ALFs operate free of federal regulations or uniform state regulations. All states possess their own regulations and laws governing ALF operations, but consistency is a major issue throughout the country.

In most instances, ALF regulations are not as extensive or demanding as those for skilled nursing facilities. Over the past 5 to 10 years, however, new sets of regulations have been authorized due to the expansion of ALF populations to people who are in need of greater supervision and care management.

Unlike skilled nursing facilities in every state, assisted living facilities are seldom visited, scrutinized, and penalized for violating regulations and providing substandard care. State regulators rarely catch substandard practices and regulatory violations or escape their scope of scrutiny and powers.

Inadequate staffing. Often, one needs no more than to have attained the age of 18 and a high school education to become an ALF staff member. Generally, staffing levels are not mandated by regulators, although they may be scrutinized on their adequacy. Nonetheless, inadequate staffing levels and training are easily overlooked due to less extensive government oversight of ALFs.

Lessened availability of medical and licensed nursing care. Facilities that do not operate with a permanent licensed nurse on staff is common. Often, the person who serves as “director of wellness” and oversees and scrutinizes residents’ health has no formal medical training.  Although physicians, physician assistants, and registered nurses are occasionally present in facilities, they are not required to be stationary consistently. Staff who attend to residents’ medical care needs are often untrained or undertrained.

This care approach is incongruous with the realities of an elderly population with longer lifespans and more “managed” chronic illnesses. Not only do residents need care and services compatible with their functional capacities and health care conditions, they are entitled to them.