Posted: April 30, 2017 | Last Updated: April 30, 2017
Assisted Living Facilities, called Residential Care Facilities in Ohio, are not nursing homes, and are not as well regulated as nursing homes. That doesn’t mean someone injured or killed in a residential care facility has no claim. But the types of claims, and how to pursue them, are different.
Not only are Assisted Living Facilities—called Residential Care Facilities in Ohio—not tightly regulated like nursing homes, there is not even a clear definition. The assisted living industry has lobbied hard to prevent real regulations to keep residents safe. So states define and regulate the facilities on their own, in different ways.
In Ohio, the primary regulations governing the establishment, licensing and monitoring of assisted living facilities are in Ohio Administrative Code section 3701.17. The Ohio Department of Health licenses over 600 Residential Care Facilities.
Residential care facility means a home that provides either of the following:
(1) Accommodations for seventeen or more unrelated individuals and supervision and personal care services for three or more of those individuals who are dependent on the services of others by reason of age or physical or mental impairment;
(2) Accommodations for three or more unrelated individuals, supervision and personal care services for at least three of those individuals who are dependent on the services of others by reason of age or physical or mental impairment, and provide to at least one of those individuals, any of the skilled nursing care authorized by law.[i]
A residential care facility may admit or retain an individual requiring medication if:
(1) The individual’s personal physician has determined that the individual is capable of self-administration; or
(2) The facility provides for the medication to be administered by a certified home health agency, a licensed hospice care program, or a qualified member of the staff. [ii]
A residential care facility may admit individuals who require skilled nursing care beyond the supervision of special diets, application of dressings, or administration of medication, for a limited time and with special conditions. Specifically, the skilled care will be provided on a part-time, intermittent basis for not more than 120 days in 12 months.
The Ohio regulations define “Assisted living service” as:
[A] service that promotes aging in place by supporting a consumer’s independence, choice, and privacy through the provision of one or more components of the service which are a personal care service, a supportive service, an on-duty response service, coordination of meals, social and recreational programming, a non-medical transportation service, and a nursing service.[iii]
Residential care facilities do not need to have as many staff, or train them as well, as in a nursing home. Nursing homes in Ohio are required to meet minimum hour requirements for registered nurses, licensed practical nurses, and state certified nursing assistants.
Ohio’s requirements for assisted care facilities are much lower and less specific: they are required to employ a registered nurse to provide supervision for “sufficient time each week” to manage the skilled care. And staff providing personal care services must be at least 18 years old, understand English if assisting residents with self-administered medications, and go through emergency first aide training.
None of the higher-level state certified training and licensure nurses and aides go through to work in a nursing home. Even the record requirements are much lower for assisted living.
Assisted Living Facility or Residential Care Facility negligence means the facility care careless and that carelessness hurt someone. This is called failing to exercise reasonable care, or violating the standard of care.
An assisted living facility is negligent if it fails to act like a reasonable assisted living facility should act under the circumstances. An assisted living or residential care facility can also be negligent by violating the terms of its resident contract or violating any Ohio law governing assisted living facilities.
The duties of an assisted living facility normally include:
The duties of an assisted living facility can be affected by their own policies and procedures, the contracts residents sign to live there, and state laws and regulations.
Unlike nursing homes, assisted living facilities are not highly regulated by the federal government. So they have much more flexibility in defining their obligations.
In Ohio, assisted living facilities (called Residential Care Facilities) are monitored by the Division of Quality Assurance in the Bureau of Long Term Care Quality, which is responsible for investigating the facilities to ensure they comply with the Ohio Revised Code and Ohio Administrative Code laws and rules.
According to the Ohio Department of Health, every Residential Care Facility is inspected in an unannounced survey at least once per year (during a 9 to 15 month survey cycle).[iv] In theory, the inspector reviews all aspects of care and services provided for compliance with Ohio laws and rules.
Caregivers in assisted living facilities (Residential Care Facilities) can injure of kill residents when they’re careless with things like medications, safe environments, or fall prevention.
Injuries that might be a sign of abuse or neglect include:
It is rare that an assisted living facility will injure or kill a resident and admit that to family. Normally, an investigation is required.
The best things to do are:
Some of the most common signs of elder abuse or neglect in assisted living facilities include:
There may be reasonable explanations for some of these, that do not include abuse or neglect.
But if you observe changes in your loved one’s personality, physical health, or behavior, ask questions and demand answers. It’s the facility’s job to satisfy you that your loved one is safe and being cared for.
You can help prevent assisted living facility (Residential Care Facility) injuries by:
Read more about each step below.
Thorough research and careful selection of the right facility is the best way to prevent assisted living facility injuries. Start by researching several facilities, not just one.
While being close to the facility is great—making it easier to visit more frequently—that shouldn’t be the only consideration. Price may also be important depending on your financial condition. But again, it should not be the only consideration.
Also, be aware that the marketing materials, advertising, and sales team taking you on the tour are designed to make you think the facility is perfect. You need to look beyond that to really know if the facility is any good.
Start by doing a search for facilities near you, compare their statistics, and visit. In addition to taking a scheduled tour, come by unannounced on an evening or weekend to see how things look. Check the complaints and ratings. Ask people living there how they like it.
Research the facilities online, paying attention to reviews and ratings. Pay attention to how many complaints there are, and what they’re based on.
Once a loved one is living in an assisted care facility, it is critical to visit as frequently as possible, and if possible, at different times and days. You’ll be in a much better position to see changes in their condition.
Look for and talk with them about concerns with things like:
By visiting and staying engaged, you will be much more likely to recognize and seek help with issues before they become serious or deadly.
If you have other family members who can visit, too, talk about what you see and hear so you can recognize issues early.
Know the caregivers, their schedules, and their concerns. By being informed, you can be empowered to deal with issues early. Don’t let a caregiver shame you or minimize concerns. This is about family. Care. Health. Safety. Be proactive.
What is that medication? Why does she smell like she hasn’t had a shower? What is that bruise, bandage, or scrape? How did it happen? When? Why weren’t we told about this?
Questions—and demanding answers—can help you recognize or uncover issues before they become too serious to resolve.
When you see something, say something.
Bad care is unacceptable. It’s not what they’re being paid for. Follow up with the proper facility administrators. Document things in writing to them, whether letters or emails. Even after they tell you they’ll make sure everything is fixed. Send them an email documenting your complaints and what they said they would do.
You’d be amazed—as our clients often are—how all those complaints and assurances somehow never make it into the records. And how they never seem to recall all those issues. A paper trail can make all the difference.
In the event that you or your loved one encounter problems in assisted living, and when reporting those problems to the facility management doesn’t work, you should report the problems to the state licensing agencies that oversee assisted living.
If you see evidence of neglect or abuse, contact Adult Protective Services (APS), Ohio’s state licensing agency for assisted living (the Ohio Department of Health), and the Long-Term Care Ombudsman in your area. The long-term care ombudsman authorized by the federal law to “investigate and resolve complaints made by or on behalf of older individuals who are residents of long-term care facilities.
When going through the regular channels isn’t working, escalate to complaining to the state. You can fill out complaints online.
Be sure you are:
Take action if you see such signs and symptoms of neglect, abuse, or accidental injury. You are your loved one’s best advocate.
Assisted living facilities (Residential Care Facilities) are not providing as intensive care as nursing homes (usually). That doesn’t mean they can’t harm your loved one with abuse or neglect.
In fact, research suggests that residents of assisted living facilities may be more at risk of abuse or neglect than residents in a nursing home.
“Specifically, the presence of cognitive impairment in conjunction with minimal regulations and oversight, private rooms, low staff ratios, minimal staff training, and high staff turnover may conspire to increase risk” of abuse and neglect, according to research published in the journal Gerontologist.[v]
Assisted living abuse includes:
Assisted living neglect is failing to provide the assistance or care required to keep a resident happy and healthy as possible. Neglect can lead to dehydration, malnourishment, rashes or sores, falls and broken bones or head injuries, and infections.
Neglect can include denying an older person shelter, food, medication, medical care, supporting devices like walkers or wheelchairs, or other physical assistance, and exposing that person to the risk of physical, mental, or emotional harm.
Neglect is often caused by understaffing. When staff has too many residents to give them all good care, they start picking which care to provide, to which residents, based on what seems the most serious right then. This is called “triaging,” and isn’t something that should happen in an assisted living facility.
Assisted living facility abuse and neglect are not really different: neglect is a form of abuse.
While many people separate abuse from neglect, neglect is really a form of abuse. If a resident is supposed to have a certain medication every day after lunch, its abusive to give them twice as much, or to give them none at all. One is active, the other is passive, but they’re both abusive and harmful.
According to the National Center on Elder Abuse (NCEA), “most cases of elder abuse are perpetrated by known and trusted others, particularly family members.” Elder abuse can occur at home, in assisted living (Residential Care) facilities, in nursing homes, or even retirement communities.
According to the National Center on Aging, elder abuse is all too common:
Approximately 1 in 10 Americans aged 60+ have experienced some form of elder abuse. Some estimates range as high as 5 million elders who are abused each year. One study estimated that only 1 in 14 cases of abuse are reported to authorities.
Yes, assisted living facility abuse and neglect are definitely elder abuse.
There are Ohio lawyers focused on elder abuse, whether at nursing homes or assisted living facilities, including Eadie Hill Trial Lawyers.
Do not assume any “personal injury” attorney is experienced with assisted living facility litigation. How specialized can you be if you handle any injury case that comes in the door?
To report assisted living (Residential Care Facility) abuse or neglect in Ohio, file a complaint with the Ohio Department of Health. The Ohio Department of Health complaint unit located in Columbus, Ohio.
You can reach them at: 1-800-342-0553.
Mailing Address: Ohio Department of Health, Residential Care Facilities/Assisted Living, 246 N. High St., Columbus, Ohio 43215.
You can choose to be anonymous, but may not be able to give follow-up information if so.
Note that this is NOT the way to ensure the facility is held accountable. The only way to do that is to contact an elder abuse lawyer like us.
We work for you, not the industry, and can thoroughly investigate and get answers. That may lead to a lawsuit, it may not. But it will lead to answers for you and your family as to what happened, and whose fault it was.
The main way to ensure an assisted living facility is held accountable for injuring or killing your loved one is to hire a lawyer to file a lawsuit. These are companies that think, feel, and bleed money. That’s their language. If they can continue behaving in a dangerous way without losing money, they will.
The only way to know for sure is to contact an experienced assisted living and nursing home abuse lawyer in your state.
The common claims against an assisted care facility include the assisted living facility:
Assisted living (residential care facility) lawsuits in Ohio take anywhere from 6 months to three years depending on whether the case settles or goes to trial, and whether there is an appeal after the trial.
If you hire a reputable law firm focused on nursing home and assisted living facility abuse and neglect cases, the lawsuit should cost you nothing out of pocket. We advance the expenses for our
This is a question that has two answers. If we take on your case, it will not “cost” you any money, because we advance the costs of litigation. But the lawsuits can cost tens of thousands of dollars, especially if it goes to trial. And all of those expenses do get paid back if there is a recovery.
So even though you pay nothing out of pocket, and do not get a bill if there is no recovery, it does “cost” you out of the recovery.
That is why managing expenses is an important part of these cases. You want an attorney who is willing to spend money in order to increase the value of the case—taking efficient and effective depositions, hiring strong experts—but also careful about not wasting money.
That’s why we treat expenses as your money, and act accordingly. If I’m wasting money that will mean a significantly limited recovery to the clients, I’m not doing a good job for the clients.
There are also issues with how to evaluate case value. Some people–even some personal injury attorneys–think assisted living lawsuits cannot have much value because they always involve older people, sick people, people who do not have much life left, don’t earn money, and are going to die eventually anyway.
I believe the older we get, the more help and assistance we need, the more vulnerable we are, the greater the level of care our caregivers need to provide. And the less time we have left, the more valuable every moment becomes. How dare someone–or more likely, some corporation–be careless with someone’s safety, when the person is more delicate, or unable to protect themselves?
For every type of civil claim there is a period of time in which you can file a lawsuit, called the “statute of limitations.” After that time is up, you’re generally out of luck and any claim filed after that date will be dismissed.
In general—although not always—assisted living facility (Residential Care Facility) injury claims are “medical claims,” meaning you only have one year in which to file the lawsuit from the date of injury. They might be a claim for a defective, dangerous property, called a premises liability claim, which has a two-year statute of limitations.
Besides the injury claim—the claim the resident has for their injuries, pain, and suffering (even if they’ve died)—if negligence caused injuries that led to the resident’s death, their family has a claim for their loss, called a “wrongful death” claim. These claims must be filed within two years of the date of death.
There are exceptions, ways to extend the time limits, and other complicated factors that make each case’s statute of limitations potentially unique.
The most important thing to do is have a qualified assisted living abuse lawyer evaluate the statute of limitations as early as possible, to be sure you do not miss (or have not already missed) the cutoff date.
You can still decide not to file a lawsuit, but at least you will have the option.
The statute of limitations only requires you to file a lawsuit. After that, there is no time limit by law for the time to complete the case.
Anyone with a claim against a Residential Care Facility (assisted living facility) can settle their claim—before, during, even after a lawsuit (such as after a jury verdict)—if the facility or their insurance company offers a reasonable amount to compensate them for their harms and losses. Most cases settle.
Having said that, whether you receive full and fair compensation will depend on whether the facility’s lawyer and insurance company believes they are at risk of a jury verdict. That can depend on the facts of the case but, just as importantly, whether they believe your lawyer is prepared and willing to take them to trial.
You want to have an attorney eager to go to trial. Most are not. Not even close.
We try cases, we like trying cases, but more importantly we like to help empower clients to feel confident and comfortable exercising their constitutional right to a jury trial. When you and your lawyer are prepared and ready for trial, you’re in the driver’s seat and in control.
Settlement does offer benefits: by eliminating risk of a jury trial, you know exactly what will happen. You can also save time, energy, and money, meaning a dollar in settlement is often worth more than a dollar at trial.
Although we cover case expenses for these cases, the expenses are repaid out of a recovery. So if I can get clients significant, fair compensation early on in a case, before spending tens of thousands of dollars on experts, depositions, exhibits, and the rest, that might be a better outcome than trial.
Lawyers are obligated to work in your interest. If a lawyer is afraid of trial, or does not want to invest the time, energy, and money getting the case ready, they may be tempted to encourage settlement at an unreasonably low level. I’m afraid that happens a lot more than it should.
There are a lot of lawyers out there, and plenty who call themselves “injury lawyers.” When you have a serious case of assisted living abuse or neglect, you need more than a personal injury lawyer. You need a trial lawyer experienced with the ins and outs of assisted living cases.
First, we investigate the case. That means:
Then we review our findings with you to decide whether there is a case, and whether moving forward with it is in your interests.
We prepare a settlement demand for the other side, if possible (if there’s time, and good reason), before filing the lawsuit.
We prepare and file the lawsuit.
We pursue the lawsuit, including :
We advise clients throughout the process on the possibility and reasonability of settlement.
Most importantly, we prepare clients to feel confident and fearless during this new and difficult process.
If you believe there has been a serious injury or death caused by an assisted living facility’s carelessness, you need to contact an assisted living facility lawyer like those at Eadie Hill Trial Lawyers now to review the case.
You have a limited amount of time in which to investigate and, if warranted, file a lawsuit. This time is called the Statute of Limitations. If you wait too long, you cannot pursue the claim, no matter how good the case was.
I would recommend you hire a lawyer who restricts their cases to nursing home and assisted living lawsuits. And one who tries cases. Because nothing will ensure your case is not taken seriously more quickly than hiring a “personal injury lawyer” who settles everything.
Yes, we’re lawyers who restrict our case load to nursing home and assisted living medical claims. And yes, we are trial lawyers. So I am suggesting you hire lawyers just like us—heck, I hope you hire us. But even if you do not, take the time to find lawyers like that. It will make a big difference.
[i] Ohio Department of Health website: http://www.odh.ohio.gov/odhprograms/ltc/Residential-Care-Facilities/Main-Page
[ii] Ohio Department of Health website: http://www.odh.ohio.gov/odhprograms/ltc/Residential-Care-Facilities/Main-Page
[v] Stacey Wood, PhD Mary Stephens, BA, Vulnerability to Elder Abuse and Neglect in Assisted Living Facilities (available at https://academic.oup.com/gerontologist/article/43/5/753/633894/Vulnerability-to-Elder-Abuse-and-Neglect-in).
[vii] Lachs, M., & Pillemer, K. (2015). Elder abuse. New England Journal of Medicine, 373, 1947–56. doi: 10.1056/NEJMra1404688
[viii] Lifespan of Greater Rochester, Inc., Weill Cornell Medical Center of Cornell University, & New York City Department for the Aging. (2011). Under the Radar: New York State Elder Abuse Prevalence Study (PDF).
[ix] Quinn, K., & Benson, W. (2012). The states’ elder abuse victim services: a system in search of support. Generations 36(3), 66–71.
The first thing to do is complete the contact form at the bottom of this page. That way, you can put in details that we can review before we schedule a phone call.
You can also call us at 216-777-8856 if you prefer.
You will likely not speak to us immediately, but will schedule a phone or in-person meeting. Why? Because we’re busy working on the important cases other families have entrusted to us. Just like we would not constantly take phone calls when we’re entrusted to work on your case.
You should also gather all the records and papers you have from the medical providers, go back and look for dates, names, and events that happened, and otherwise prepare to discuss the case. We’ll have a meeting and, if it seems like a case we’d be a good fit for, we’ll move into an investigation phase.
Once we’ve investigated, we’ll candidly tell you what we think about what happened, whether the medical provider is to blame, and what we think about the strength of the case.
Fair warning: we only take on clients whose cases we believe have very strong merits. We’re not lazy—the cases are still very complex, difficult, and expensive—but the risk to your family of being drawn into a difficult process with little chance of a positive outcome is not something we do.
Which means when we do take on a case, our reputation tells the other side this is a serious case we believe in.
If for whatever reason we do not take on the case, and we think there is some merit to the case, we’ll try and help you find a lawyer who might take it on.