Proving Your Assisted Living Facility Abuse and Neglect Case: It’s a Numbers Game

The Rise in Assisted Living Care

Assisted living facilities (ALFs), also called residential care facilities, are becoming the nursing homes of the future. Nearly 1 million residents live in the more than 30,000 ALFs in the United States.[1] However, there is no common definition of ALFs so there is likely to be some underreporting of statistics.

These numbers are expected to rise. The number of people aged 65 and older grew from 35 million in 2000 (12.4% of U.S population) to 49.2 million in 2017 (15.2% of population).[2] By 2030, 1 in 5 (20%) Americans will be over the age of 65.[3]

In an attempt to compete with nursing homes, assisted living facilities are accepting patients with higher acuity levels than ever before. ALFs often aggressively market their services and recruit potential customers through websites, online campaigns, pay per click advertising, and banner ads. Many times, these facilities promise staffing levels or services that they simply cannot provide.

These advertisements and marketing materials are often directed toward the children of the elderly who make decisions about their parents’ placement and are assured of their parents’ independence and safety—often mutually exclusive notions when caring for specific subpopulations of the elderly.

Most major chains advertise special memory care or Alzheimer’s disease units, and are accepting patients with significant cognitive impairment and physical limitations. The reality is that many of these facilities have staffing that is inferior to the staffing levels present in nursing homes and simply cannot meet the needs of these higher acuity residents.

Assisted Living Facilities by the Numbers

More than 835,000 Americans reside in assisted living communities. The majority of these residents are the “oldest old,” or age 85 and older, female, and non-Hispanic white.

While many residents don’t require 24-7 skilled nursing care, more and more ALFs are accepting residents with high acuity levels who would traditionally be nursing home residents.

ALFs promote independence, but the reality is that many residents have complex needs. Residents are receiving hospice care, have advanced dementia and Alzheimer’s, have swallowing disorders, and have paralysis from strokes and other injuries. Approximately 50—75% of residents require assistance of some kind with their medication, and 66-81% of residents suffer from dementia, depression, other psychiatric illnesses or receive psychotropic medications.[5]

The most common activity of daily living that residents need assistance with is bathing followed by dressing, bed transfers, and toileting. Nearly half of all residents are living with a cardiovascular disease, and 4 in 10 are living with some form of dementia, including Alzheimer’s. These conditions place residents at risk of injury without appropriate supervision and treatment. In particular, dementia patients are at risk of choking because of dysphagia and other issues with eating while Alzheimer’s dementia patients are at a heightened risk of wandering off or elopement injuries.

Who Owns Assisted Living Facilities?

56% of ALFs in the U.S. are chain-affiliated (defined as a company with two or more communities) while 44% are independently-owned. Of the chain-affiliated facilities, there are around 40 corporations that control nearly all of these facilities in the U.S.

Who Pays for Assisted Living Facility Care?

The majority of ALF residents use private pay (e.g., long term care insurance or personal finances) to pay for assisted living services.[6] Low-income individuals may be able to utilize Medicaid to help cover the cost of services, depending on their state’s Medicaid program.[7] Ohio’s Department of Aging administers the assisted living waiver program that pays for nursing care in an assisted living facility.[8] Approximately 15% of assisted living residents rely on Medicaid to cover their assisted living services.[9]

What Services are Provided by Assisted Living Facilities?

Most assisted living facilities provide the following services to their residents.

• 24-hour supervision and assistance;
• Exercise, health and wellness programs;
• Housekeeping and maintenance;
• Meals and dining services;
• Medication management or assistance;
• Personal care services (such as Activities of Daily Living); and
• transportation.

 

After a median stay around 22 months, roughly 60% of residents will move out of assisted living to transition to a nursing home.[10]

The Rise of Disease-specific Programs in Assisted Living Facilities

An increasing number of assisted living communities are providing disease-specific programs. Below is a breakdown by percentage of assisted living communities that provide disease-specific programs:

• 58% of ALFs residents have an Alzheimer’s disease or other dementias program;
• 12% of ALFs have a designated dementia care unit, wing, or floor;
• 10% of ALFs serve only adults with dementia;
• 58% of ALFs have a diabetes program;
• 52 % of ALFs have a cardiovascular program; and
• 48% of ALFs have a depression program.[11]

Assisted Living Facilities Often Are Not the Ones Providing Care

ALFs usually do not directly provide certain health care services, but consistently work with other providers to offer these services. These services frequently include:

• 8% dental;
• 3% depression screening;
• 6% hospice;
• 1% mental health or counseling;
• 4% pharmacy / pharmacist;
• 8% podiatry;
• 0% skilled nursing; and
• 0% therapy (physical, occupational or speech).[12]

Many of these services are not provided directly by the ALF but by employees of home health agencies and other entities. This is an important consideration when you are deciding who to name in a lawsuit.

Commonly, there are contracts or letters of endorsement between the facility and the provider whereby the ALF assumes responsibility for any wrongdoing and injury. In other circumstances there are overlapping ownership interests between the ALF and providers, but unlike in the nursing home context, these do not have to be disclosed as related parties.

Who’s Providing the Care at Assisted Living Facilities?

The vast majority of care being provided in ALFs is from aides, as opposed to nurses. The reason behind this is two-fold. First, the regulatory framework for staffing requirements for ALFs is ambiguous and does not require any nurse to resident ratio in Ohio. Second, for long term care facilities generally, the largest individual revenue source is residents (filling beds), and the largest individual expense is the cost of employing nursing staff to provide care to those residents.  This creates a financial incentive to take on more residents while reducing the costs of nursing staff, and aides earn much less than nurses.

Despite this financial incentive, however, in the nursing home setting, study after study has shown a direct correlation between the amount of nursing care and patient outcomes.[13] The same applies to ALFs.

Analyzing Assisted Living Liability: Sources for Finding Liability

Abuse, neglect, and overall poor quality of care in ALFs results from structural systemic problems. Staff shortages combined with long hours results in worker frustration and fatigue. This increases the risk for errors, abuse, and both patient and worker injuries. However, proving the systemic case can be more challenging in the ALF context than in traditional nursing home litigation due to a lack of regulatory framework.

Nursing homes are highly regulated and must comply with the regulations set forth in the Omnibus Budget Reconciliation Act (“OBRA”) of 1987 (otherwise known as the federal Nursing Home Reform Act) which set minimum standards of care for long term care facilities that receive federal funding. This forms much of the basis for nursing home inspections and violations. The federal agency charged with overseeing most nursing homes, the Centers for Medicare and Medicaid Services (Medicare or CMS), recently made the first substantial upgrade of existing federal nursing home regulations in 15 years. (For an overview of the more recent federal regulations, you can see our recent article “How Recent Changes to Nursing Home Regulations Affect Nursing Home Abuse Cases,” here: https://goo.gl/8tjRZw).

Unlike nursing homes, assisted living facilities are not regulated by the federal government, and the state regulations that do exist are inconsistent and, for the most part vague. Despite these limitations, there several important factors that go into proving the systemic case.

Finding the Profit Motive

The systems case always lies in the profit motive, and there is always a profit motive that underlies the poor decisions and care in an ALF. The profit motive is often a combination of multiple factors consisting of (1) a need to increase resident census (keep the facility full) and (2) a desire to keep expenses and overhead as low as possible. These manifest as (1) marketing materials and in-person sales tactics that induce potential customers by making claims of care they cannot provide; (2) accepting residents who should receive nursing home care because of significant health issues; (3) understaffing the facility in a manner so that residents cannot receive appropriate care; and (4) steadfastly keeping to annual and semi-annual budgets regardless of changes in patient acuity and needs.

Remember, errors in care are not as simple as an innocent mistake by a nurse or aide. They stem from top-down systemic failures, and caregivers are often exploited parties in this scenario as well. You would be well-served not to outright attack them.

Sometimes the profit motive is obvious. Directors or administrators will sometimes admit at deposition that they are required to stay within 5 or 10% of the annual budget while maintaining a full resident census in order to receive an annual bonus, while other times the profit motive less conspicuous.

For example, in one of our recent wandering off (elopement) cases, an Alzheimer’s patient moved into an ALF but was not placed in the dedicated and locked memory care unit. The memory care unit costs more per month so you would assume that the ALF would push this on residents. This wasn’t even offered to the family. Rather, the family was told that someone would keep an eye on their mother, so a dedicated memory program wasn’t necessary. How could a profit motive explain this? We learned through our experts and discovery that while residents are charged more per month for memory care units, the facility actually profits less per patient in memory care because of the additional resources needed to operate and monitor the memory care wing. Thus, the goal is to induce customers to their facility because they have a memory care facility but offer them regular units which produce greater profits for the facility. Clearly, attacking the overworked aide who didn’t check on the woman as often as she should have is a far less compelling narrative than the facility’s profit generating scheme.

The Entity’s Own Marketing Materials

For anyone using the Rules of the Road method—which I assume is everyone at this point—you can find invaluable information peppered throughout the facility’s own marketing materials that they use to aggressively solicit potential customers. In an effort to solicit customers, these marketing materials often make lofty promises concerning things like safety, protecting their residents well-being, supervision, promoting a family environment and happiness, and providing the best medical and nursing care available. These are excellent sources for rules because they are the guarantees of the entity itself. These are also excellent sources for proving the type of misrepresentations needed to pursue a fraud claim.

On a similar note, you will want to find the job descriptions and online offers of employment for many of the positions, including sales and marketing managers and staff. Many of the chain-affiliated providers are in constant need of sales staff and their job offers can be easily located on websites like Indeed.com.

We have found that these job offerings endorse our clients’ complaints of heavy handed sales tactics and promises by including position requirements of “aggressive closing skills,” ability to “persuade all potential customers,” and history of high “win rates.” These reinforce that this is a corporate numbers game with little concern for the well-being of residents.

A particularly fruitful way to take advantage of this approach is through 30(b)(5) (or 30(b)(6) if you are in federal court) depositions of corporate designees. You can explore in detail issues of: all marketing materials you have uncovered including who drafted them and what efforts were made to ensure they were accurate or could be carried out; who responds to inquiries about referrals, leads, and potential customers; census goals; and facility budget—including any portions of the budget allocated for caregiving staff. You will almost always find that these decisions are being made by nonclinical staff and are often the decisions of corporate officers and sales and marketing staff with little or no input from clinical staff.

Understaffing

Staffing is at the root of any long-term care case as it explains why many acts of negligence, neglect, and abuse occur. Errors don’t occur simply because someone is a bad or indifferent aide but because of staff turnover and shortages that make good care impossible. This is a corporate greed and accountability issue, not simply a bad spirited employee. (For an overview of proving nursing home understaffing, read our recent article published by OAJ, “The Nursing Home Systems Case, By the Numbers” here: https://goo.gl/N75XqQ.)

Despite similar acuity levels among residents at ALFs and nursing homes, only a handful of states mandate a staff to resident ration. Ohio is not one of them. Ohio’s regulatory guidance on staffing is entirely vague.

Despite the confusing regulatory framework and lack of minimum staffing requirements, Ohio law does recognize that ALFs have “sufficient staff time to adequately . . . meet, in a timely manner, the resident’s total care.”[14]

Resident care needs are often outlined in a pre-assessment screening tool where the resident’s conditions and needs are identified, a physician or nurse screening tool, resident lifestyle questionnaire, and resident agreement. These are essential because while Ohio does not regulate assisted living facilities nearly as much as nursing homes (and the federal nursing home regulations do not apply), one of the most important rules is that the ALF must make sure the resident is safe to be there. Part of these obligations involves assessing the resident and re-assessing after changes in condition.

Frequently, we see ALFs accepting complex patients with almost no nursing staff available meaning that care needs simply cannot be met. Although different than the nursing home context, this is still understaffing.

Ohio Administrative Code

You can find the state regulations at issue for assisted living facilities in Ohio Administrative Code section 3701-17-50 through 17-68 (the materials before that are for nursing homes only).

While each of the regulations plays an important part, the most commonly recurring issues in ALF litigation are dealt with at:

• 3701-17-57 (resident agreement requirements)
• 3701-17-58 (assessment requirements)
• 3701-17-59 and 59.1 (services and limited skilled care)
• 3701-17-62 (reporting changes in condition).
• 3701-17-67 (records and reports).

Violating these regulations does not automatically mean you would win an assisted living lawsuit.  But they can provide significant evidence that the ALF was negligent.

Nursing Home Bill of Rights

Every resident of an Ohio assisted living facility will have the Resident Rights listed in Ohio Revised Code section 3721.13.  That includes the right to:

“a safe . . . living environment”; and

“adequate and appropriate medical treatment and nursing care and to other ancillary services that comprise necessary and appropriate care consistent with the program for which the resident contracted”

Violating these rights can be the basis of a lawsuit against an ALF.  And, under certain circumstances, violations can expose an ALF to punitive damages.

Community Nursing Standards and Assisted Living Specific Guidelines

Although commonly overlooked, there are numerous guidelines that apply specifically to ALFs. These are becoming increasingly important as ALFs continue to take on patients with higher acuity levels. For example, the Alzheimer’s Association has published guidelines for how ALFs and nursing homes should care for dementia and Alzheimer’s patients during the 3 phases of the disease process.

This is invaluable as more and more facilities market disease-specific programs and memory care plans.

Likewise, the American Geriatrics Society Position Paper on Assisted Living lays out requirements for staff knowledge and skills needed to competently provide care for older adults, which  includes signs of condition change, risk for falls, depression, and so forth.[15] Similarly, the Scope and Standards of Assisted Living Nursing Practice formulated by the American Assisted Living Nurses Association outlines requirements of care, integrity, education, and assessment for nurses working in the assisted living environment.

Remember, the point is not to blame specific nurses or caregivers but to develop the case for corporate indifference by demonstrating that these and similar materials are given no weight in hiring, training, supervision, or retention decisions.

What Claims are Available?

Common Law Negligence / Medical Claim

This is the most common and intuitive theory of liability in assisted living cases. We always bring both a common law negligence and medical negligence claim in our assisted living cases. Clearly, there are advantages to a traditional negligence claim, primarily the ability to get outside the damage caps for severe physical injuries. However, these cases almost always end up being medical claims given the narrow view taken both by the state legislature and the courts.

Violation of Nursing Home Residents’ Rights

Violations of the resident rights statute provides weight to traditional negligence claims by building in statutory rules, primarily the requirements

“a safe . . . living environment”; and

“adequate and appropriate medical treatment and nursing care and to other ancillary services that comprise necessary and appropriate care consistent with the program for which the resident contracted”

These are particularly important because in ALF claims, a primary overriding theme is often that the resident should not have been at the ALF at all. Rather, the resident required a higher level of care and either should never have been admitted or there was some change in condition during the residency that required placement in a nursing home. Either way, the claim is that the ALF could not provide a safe environment, and it knew it.

Breach of Contract

Assisted living facilities have their residents sign a contract or resident agreement as a condition of admission. This is a requirement of Ohio law.[16] The resident agreement is required to set forth the type of care that the facility can and cannot provide. “A residential care facility shall not admit an individual who requires services or accommodations beyond that which a residential care facility is authorized to provide under” the terms of the resident agreement.[17]

Direct Negligence Claims against the Corporation and Corporate Parents

It’s always important to bring direct claims against the ALF when possible. The ALF, or often a corporate parent who you should name in the lawsuit as well, is often responsible for making all personnel, budgetary, and marketing decisions, as well as creating policies and procedures for the local facility. The employees and local administrators are simply cogs in the wheel.

Additionally, with the rise of disease-specific programs and medically complex populations, you would assume that the training for ALF employees would increase. But that assumption is often incorrect. Aides may work throughout a facility, sometimes with residents who require only minimal assistance and then transition to memory care units where patients have advanced dementia and are at pronounced risks for choking. However, these same aides often receive no additional training in what food is prohibited, how to prevent choking instances, and how intercede once choking has occurred. These training and staffing decisions are all made at the corporate level.

Only when the corporation or even a seemingly distant corporate parent is being scrutinized can you recognize the full potential of the systems case.

Fraud

Make sure to gather all of the marketing materials and discuss with your client what brochures they were given and what representations were made as an inducement to enter the ALF. To prevail on a claim of fraudulent inducement or fraudulent misrepresentation, you must show (1) a representation material to the transaction was made; (2) it was made falsely, with knowledge that it was false or with utter disregard or recklessness regarding whether it was false; (3) the intent to mislead another into reliance on that representation; (4) justifiable reliance on the representation; and (5) injury proximately resulting from that reliance.[18] Although proving a fraud claim is difficult, it is a powerful claim that can give you substantial leverage in the case.

Civil Conspiracy

We also add a claim for civil conspiracy when the case warrants, because of the unique way the claim allows you to tie the actions of disparate actors together where otherwise corporate shell games with entities, management and operational control, and ownership, would obscure a straightforward corporate decision to put peoples’ lives at risk for more money.  This allows you to say, so what?

The elements of a civil conspiracy claim include: (1) a malicious combination, (2) involving two or more persons, (3) causing injury to person or property, and (4) the existence of an unlawful act independent from the conspiracy itself.[19] The “unlawful act” need not be illegal, just tortious.[20]  Underlying “unlawful” acts can include fraud, conspiring to deprive someone of their right to privacy, intending to cause them emotional distress, intending damage to their reputations in the community, and so on.

Note that arguably a corporation cannot conspire with its own agents or employees, so they cannot be two separate “people” to form a conspiracy.  Of course, it’s the rare case where there isn’t an attempt by defendants to play games with different entities and employers.

Wrongful Death

It goes without saying that a wrongful death claim should always be included where causation can be established.

The Takeaway

The takeaway is that ALF claims are neither regular negligence claims nor nursing home claims but share similarities with both. They are time and labor intensive, but when handled correctly can result in significant outcomes leading to industry reform.

We always appreciate the opportunity to discuss potential claims with our colleagues and welcome the opportunity to assist our colleagues in their cases.

[1] National Center for Assisted Living (NCAL), https://www.ahcancal.org/ncal/facts/Pages/Residents.aspx

[2] The Statistics Portal, Share of Old Age Population (65 years and older) in the total U.S. Population 1950 to 2050, https://www.statista.com/statistics/457822/share-of-old-age-population-in-the-total-us-population/

[3] Id.

[4] All images courtesy of the National Center for Assisted Living, www.ahcancal.org/ncal.

[5] Pamela L. Lindsey, DNSc, RN, Psychotropic Medication Use among Older Adults: What All Nurses Need to Know, J Gerontol Nurs. 2009 Sep; 35(9): 28–38, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3128509/

[6] NCAL, https://www.ahcancal.org/ncal/facts/Pages/Finance.aspx

[7] NCAL, https://www.ahcancal.org/ncal/facts/Pages/Finance.aspx

[8] NCAL,  https://aging.ohio.gov/services/assistedliving/

[9] NCAL, https://www.ahcancal.org/ncal/facts/Pages/Finance.aspx

[10] NCAL, https://www.ahcancal.org/ncal/facts/Pages/Residents.aspx

[11] NCAL, https://www.ahcancal.org/ncal/facts/Pages/Communities.aspx

[12] NCAL, https://www.ahcancal.org/ncal/facts/Pages/Residents.aspx

[13] Institute of Medicine (US) Committee on the Adequacy of Nursing Staff in Hospitals and Nursing Homes; Wunderlich GS, Sloan F, Davis CK, editors, Nursing Staff in Hospitals and Nursing Homes: Is It Adequate? https://www.ncbi.nlm.nih.gov/books/NBK232673/ (Concluding, “[i]t is clear that substantial improvements in the quality of nursing home care are not possible without the allocation of increased financial resources for additional and appropriately qualified staffing.” ) (emphasis in original).

[14] OAC 3701-17-54 (C)(2).

[15] AGS Healthcare Systems Committee, Assisted living facilities: American Geriatrics Society Position Paper, J Am Geriatr Soc. 2005 Mar;53(3):536-7.

[16] OAC 3701-17-57.

[17] OAC 3701-17-57(A).

[18] Burr v. Board of County Comm’rs, 23 Ohio St. 3d 69, 23 Ohio B. 200, 491 N.E.2d 1101 (1986), paragraph two of the syllabus; Cohen v. Lamko, Inc., 10 Ohio St.3d 167, 169, 10 Ohio B. 500, 462 N.E.2d 407 (1984).

[19] Marshall v. Cooper, 2017-Ohio-5813, ¶ 20 (8th Dist.)

[20] “An underlying tort is necessary to give rise to a cause of action for conspiracy.” Ohio Ass’n of Pub. School Emps./AFSCME Local 4, AFL– CIO v. Madison Local School Dist. Bd. Of Edn., 190 Ohio App.3d 254, 2010–Ohio–4942, 941 N.E.2d 834, ¶ 62 (11th Dist.) quoting Stiles v. Chrysler Motors Corp. (1993), 89 Ohio App.3d 256, 266, 624 N.E.2d 238 (6th Dist.1993).

Author Byline:

Michael A. Hill is a nursing home abuse and medical malpractice trial lawyer at the Eadie Hill Trial Lawyers firm in Cleveland, Ohio. Michael handles cases throughout Ohio and much of the country. His trial practice focuses on nursing home abuse and neglect and medical malpractice related to stroke and heart attack. Michael can be reached at michael.hill@eadiehill.com and you can learn more about his practice at www.eadiehill.com and www.thestrokelawyers.com. 

William Eadie is a nursing home abuse lawyer at Eadie Hill Trial Lawyers in Cleveland, Ohio.  He handles nursing home abuse and neglect cases throughout Ohio.  You can reach Will at william.eadie@eadiehill.com, or learn more about his nursing home practice at www.eadiehill.com/nursing-home.