Assisted Living Facility Litigation:


Not Your Average Nursing Home Case1 by Lisa J. Sansone


We’ve all seen recent headlines and


news exposés warning of the egregious cases of abuse and neglect of helpless elderly residents in assisted living fa- cilities. These media events document the increase in abuse and neglect cases in assisted living in facilities across the country. As with the nursing home industry, poor care in assisted living facilities is a problem with many causes. Two of the primary reasons for this problem are the explosion in numbers of assisted living facilities that now house at least one million residents,2


and inad-


equate state enforcement of regulations which differ from state to state.3 Irrespective of the causes of poor care,


there is no doubt that nursing home litigation attorneys will see an increase in assisted living abuse and neglect cases. Before you litigate an assisted living case, you need to know the differences between litigating an assisted living case and litigating the typical nursing home case.


Differences from Nursing Home Cases


First, there is no national definition


of assisted living. Each state has differ- ent terms and definitions for an assisted living facility (“ALF”). ALFs are also known as adult homes, group homes, continuing care retirement communi- ties, domiciliary care homes, personal care homes, and adult foster homes. Most states, approximately 70%, cur- rently use the term “assisted living.”4 These state regulations vary greatly


in terms of the types of residents that can live in an ALF, and the type of care that can be provided. In Maryland, ALFs can admit residents with dementia and major health issues.5


The current trend 4 1


Portions of this paper were originally presented at the 2006 ATLA Teleseminar, Baltimore, Maryland, June 8, 2006, and at the AAJ Winter Convention in Miami, Florida on February 14, 2007.


2


AARP Public Policy Institute, Across the States: Profiles in Long Term Care and Independent Living, 7th


3 Ed. (2006) State


Data and Rankings Supplement at W-18. http://assets.aarp.org/rgcenter/health/ d18763_2006_ats_rankings.pdf


Occupancy of nursing homes is decreasing while occupancy of assisted living facilities is rising. This trend is due, in part, to an increase in the use of the Medicaid waiver programs to fund stays in assisted living, and using assisted living as a substitute for nursing home care. See The Shape Study, Chapter VII: Long Term Care Findings: Nursing Home Facilities, at page 3. http:// www.shaperi.org/longtermcarefindings. pdf.


42


See National Center for Assisted Living, Assisted Living Regulatory Review 2007. http://www.ncal.org/about/2007_reg_re- view.pdf (Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Dela- ware, Florida, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Maryland, Massachu- setts, Minnesota, Missouri, Montana,. Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Dakota, Texas, Utah, Vermont, Virginia, West Virginia, Wisconsin,. Wyoming).


5


See, e.g. COMAR 10.07.14.10J: Maryland assisted living facilities may not admit persons with the following conditions: (1) More than intermittent nursing care; (2) Treatment of stage three or stage four skin ulcers; (3) Ventilator services; (4) Skilled monitoring, testing, and aggressive adjustment of medica- tions and treatments where there is the presence of, or risk for, a fluctuating acute condition; (5) Monitoring of a chronic medical condition that is not controllable through readily avail- able medications and treatments; (6) Treatment for an active reportable com- municable disease; or (7) Treatment for a disease or condition which requires more than contact isolation.


Trial Reporter


among states is to permit them to admit residents with multiple medical diagno- ses. The bottom line is that ALF residents look a lot like nursing home residents.6 Nursing oversight is different within


ALFs than in nursing homes. The tim- ing of the initial assessments and when care plans must be updated can differ from nursing homes. Many states do not require a new patient to be seen by a physician within a certain time of admis- sion. In many states, there is no licensing requirement for ALF administrators. There is no federal regulation of ALFs. OBRA does not apply to ALFs.7


Each


state has its own regulations concerning such areas as staffing, certification or non-certification of nursing aides, types of patients that cannot be housed in an ALF, and other regulations.8 As for regulation, overall, states do a


much worse job of inspecting and en- forcing regulations of ALFs than nursing homes.9


If you are looking for a stack of


deficiencies to show the jury at your next ALF trial, they may not exist, not because the ALF was complying with the law, but


6


Paul Willging, the CEO of the Assisted Living Federation of America, has de- scribed assisted living facilities as “nursing homes with chandeliers.” Long Term Care Needs to Change Its Focus, Nursing Homes Magazine, February 2004, also available at http://findarticles.com/p/articles/mi_ m3830/is_2_53/ai_n6094123.


7


See the Omnibus Budget Reconciliation Act (“OBRA”) of 1987 (P.L. 100-203), 42 U.S.C §1396r, 42 U.S.C. §1395i-3, 42 CFR §483.1 et seq.


8


For a state by state review of these regula- tions, see theNational Center for Assisted Living, Assisted Living Regulatory Review 2007, http://www.ncal.org/about/2007_ reg_review.pdf; see also, Mollica RL, and Johnson-Lamarche. (2005). State Residen- tial Care and Assisted Living Policy, 2004. Washington, DC: U.S. Department of Health and Human Services. http://aspe. hhs.gov/daltcp/reports/04alcom.htm.


Summer 2007


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