because the state lacks the funding to in- spect the ALFs regularly.10
In
For example,
in Pennsylvania, there are 31 inspectors for 1581 ALFs, compared to 120 inspec- tors for about 750 nursing homes.11
Michigan, there are 100 ALFs for every inspector.12
In Maryland, there are 22
inspectors for over 2100 ALFs and each ALF is required to be inspected annually. According to the Office of Health Care Quality of the Maryland Department of Health, in 2005 the Office was only able to complete 30% of the inspections required by law.13
Claims and Causes of Action When you review ALF cases, the tradi-
tional theories of liability associated with nursing home cases exist, with some differences. Some additional theories of liability are more unique to the ALF environment and should be considered when screening an ALF case.
9
It is a generally accepted truth that states do a deplorable job of regulating nurs- ing homes. See, e.g., Oversight of Nursing Homes Is Criticized, By Robert Pear, New York Times, Published: April 22, 2007. The fact that assisted living facilities receive even less regulatory scrutiny is directly responsible for the low quality of care in some ALFs.
10
For a comprehensive list of links to state agencies that regulate ALFs, and other information, see the Consumer Consor- tium on Assisted Living,
http://www.ccal. org/
agencies.htm.
11
‘Shame of the State’ Troubled facilities and lax state oversight have for years put residents of Pennsylvania’s assisted-living homes at risk of assault, neglect - and trag- edy. Ken Dilanian Philadelphia Inquirer, February 25, 2007.
http://www.philly. com/inquirer/front_page/20070225_
Shame_of_the_State.html
12
Assisted Living, Erratic Regulation: With No Federal Regulation And Limited State Laws, Negligence Cases Are Growing, Ar- men Keteyian, CBS Chief Investigative Correspondent, November 13, 2006. h t t p : / / w w w . c b s n e w s . c o m / stories/2006/11/13/cbsnews_investigates/
main2177892.shtml
13
See Maryland Department of Health and Mental Hygiene Office of Health Care Qual- ity Annual Report and Staffing Analysis, January 2006 at pages 10, 17. http://www.
dhmh.state.md.us/ohcq/reports/ohcq_ arsa_05.pdf.
Summer 2007 Trial Reporter 43
Negligent Admission to Assisted Living
Negligent admission of a resident in DJG-Trial Reporter Ad 4/1/05 3:45 PM Page 1
an ALF is a common claim where the ALF admits a resident whose needs exceed the facility’s ability to care for the resident. A resident who is totally dependent in all activities of daily living (“ADLs”) may require more staff hours than can be provided by a particular facility. Negligent admission may also occur where the resident’s admission violates state law, for example, where the resident is on a ventilator and state law prohibits this ALF placement.
Negligence The standard of care is generally simi-
lar in both the nursing home and ALF settings. For example, nursing standards of care are similar because the state nurse practice acts apply in all environments. Regulations pertaining to delegation nursing duties to nursing aides, however, may vary with the setting, especially since some aides in ALFs are not certi- fied.14
In addition, nursing duties that
are given to non-certified aides may give rise to liability. Standards of care for fall cases may also differ in the ALF setting, depending
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