Top Assisted Living Facilities

Cats and Dogs and Even Birds Offer Special Therapy in Assisted Living Facilities

Posted on 02. Apr, 2010 in Assisted Living Articles

<a title=Assisted living facilities at Great Places! rel=”nofollow” onclick=”javascript:pageTracker._trackPageview(’/outgoing/article_exit_link’);” href=http://www.greatplacesinc.com/features/AssistedLivingFacilities.aspx>Assisted living facilities</a>  and hospitals all over the country have used pets to offer comfort when people are feeling low. Cats, dogs, birds and even hamsters and guinea pigs are often used for every age as a means for distraction, comfort, companionship and good positive energy that is so often needed in times of sickness or loneliness.

An <a title=Assisted living Minnesota at Great Places! rel=”nofollow” onclick=”javascript:pageTracker._trackPageview(’/outgoing/article_exit_link’);” href=http://www.greatplacesinc.com/features/AssistedLivingMN.aspx>assisted living Minnesota</a> therapeutic dog named “Kaiser,” has been making visits for several years to seniors coping with physical and mental disabilities. Kaiser is also known in Minnesota schools, hospitals and long term rehabilitation centers. Besides patients, Kaiser and his owner volunteer their time and have made several friends with staff members, nurses, doctors and caregivers all over the state. Besides having dogs like Kaiser make weekly rounds to different hospitals, many assisted living facilities have a resident pet or allow residents to keep pets themselves. Living with any pet can have its pluses and minuses of course.

The Positives and Negatives of Pets in Assisted Living Facilities

•    Allergies- residents can have intense reactions to pet dander that can make their current situation even worse. Before introducing any pet to an assisted living facility, it’s wise to double check everyone’s tolerances for cats and dogs. Best case scenario should there be allergies is to have one common area exclusively for the resident pet and for residents who are not allergic to spend some time without making anyone else miserable with itching and sneezing.

•    Cleaning, feeding and general care of the resident pet or pets- Owning a pet is a big responsibility on top of the other delegated tasks for assisted living staff. It will have to be the concern of all staff members to make sure the resident pet is properly fed, bathed and taken outside often. When residents own pets inside their rooms, even if it is just a goldfish, assisted living staff need to make sure each resident as well as their pet are having their needs met, which can be burdensome for an already busy facility.

•    Financial concerns- Pet food and vet bills can add up. It’s probably not the best idea for any assisted living facility to take on another financial responsibility if funds are already stretched thin.

•    The positives highly outweigh the negatives- happier residents, lowered anxiety, reduced depression and stress and brighter and more positive energy throughout the residence.

•    Pets can offer an outreach for residents who may have trouble speaking and communicating with other residences.

•    Pets can give seniors a job and a purpose to their lives, by feeding them, grooming them and taking them on walks.

Studies have shown that the genuine, non-judgmental love that animals can give to residents in assisted living facilities can prove dramatic results. If your facility cannot have a live-in pet, contact your local humane society and see if a dog or cat could come for weekly visits.

The Benefits of Assisted Living and Home Care

Posted on 01. Apr, 2010 in Assisted Living Articles

Assisted living communities accommodate a large percentage of the elderly population. Similar to individual residences, these communities provide various accommodations for those who need specialized assistance when it comes to Activities of Daily Living.  There are six basic activities generally classified as Activities of Daily Living, also known as ADL’s.  These activities may include bathing, dressing, eating, transferring (e.g.: from bed to wheelchair) walking and medication management.

When seeking information on assisted living communities in your area, the Internet can be a valuable, multifaceted resource. Using specialized comparison services, those who are looking for different options can find a community that provides both specialized personal care and general assistance with ADL’s. When the complications of aging begin to take their toll, the elderly will surely benefit from the many services offered in assisted living. 

Considered as somewhere in-between nursing homes and independent living, assisted living communities provide an entire range of services. Trained nurses and other specialized personnel make sure that their residents enjoy the quality of life that they are entitled to.  In addition to offering personalized assistance, assisted living communities aim at creating a caring environment that go a long way in lessening feelings of isolation and depression. Many residents benefit from new found friendships and depending on the community and the accommodations offered, they are even allowed to bring their pets.

In relation to ADL’s, assisted living communities also provide delicious meals, weekly housekeeping and linen services. The personnel are also instructed to offer assistance when it comes to taking medication and managing personal finances. When individuals find it increasingly difficult to live on their own and a nursing home is not a present need, an assisted living community may be the next best thing to living independently. With this in mind, and the sometimes difficult process of locating individual communities online, a single source reference website can be an excellent tool in finding an assisted living community in your area.

Unlike nursing homes, assisted living facilities provide health care and personal assistance for those who are not 100% independent. The best candidates for assisted living are not the individuals that require constant health care and assistance with everything they do. The best candidates just need a little bit of help with one or several ADL’s, and other regular activities. As senior sometimes require medical attention, assisted living communities may have medical care centers attached to their community, this way a seniors are given an alternative to stand alone nursing homes.

Creating an individual plan for each resident, assisted living communities provide great care and personalized services. With all this in mind, it is best to consider all senior care possibilities. Despite the great service offered by assisted living and retirement communities, many people prefer to remain in their home.  If this is the case, Home Care may be an option, offering a superior level of independence then that of a senior community.

If you are wondering what home care actually means, you should know that the Internet is a great source of information in that area as well. Apart from searching for home care providers, you can also read about the types of home care options offered by specialists in the field.  In addition to assisting with personal ADL’s, home care aids are prepared to take care of housekeeping, provide assistance with shopping and running errands. Making the right choice can be easier when you are equipped with the appropriate information and understand the many different options now available through the Internet.

Differences Between Nursing Homes, Assisted Living Facilities and Continuing Care Retirement Communities in Virginia

Posted on 31. Mar, 2010 in Assisted Living Articles

Benjamin Franklin said it best – “nothing in life is certain except death and taxes” but with daily advancements in science, technology and health care, Americans are living longer than ever before*. This blessing however, has created a unique dilemma for modern American families: How to plan for and prepare for one’s retirement years.

Have you taken a road-trip lately? Almost every highway is graced with large bill-boards providing the locations of new planned communities where couples can spend their retirement years dedicated to recreational pursuits. I doubt you will find a local newspaper that doesn’t have at least one ad promoting the amenities found at a local assisted living facility. Try to search for “nursing homes in Virginia” on the Internet and thousands of web pages will appear. Each and every day new facilities offering different programs are being built and marketed across the state.

Is such a facility right for you and your family? If so, which facility? We often hear the terms “retirement community,” “nursing home,” and “assisted living facility” but rarely consider what these terms actually mean. The differences however, are striking and it is imperative to understand these differences when making choices for yourself or your loved ones.

NURSING HOMES

In Virginia, a nursing home means any facility with the primary function of providing long-term nursing care, nursing services and health-related services on a continuing basis, for the treatment and inpatient care of two or more non-related individuals**. Put simply, a nursing home is a facility designed for someone who needs less care than a hospital, but requires daily health care assistance.

The Virginia Department of Health licenses such facilities and has established guidelines regulating various aspects of their operations, programs, and staffing needs, etc***. For example, a nursing home must: (a) have written policies and procedures regarding the treatment of residents and the management of resident care which are available to residents and their families (12VAC5-360-20); (b) provide emergency medical services within 15 minutes, under normal conditions (12VAC5-360-50); (c) be subject to unannounced on-site inspections of the nursing facility by State employees (12VAC5-371-60); (d) have a written agreement with one or more physicians licensed by the Virginia Board of Medicine to serve as medical director (12VAC5-371-230); and (e) each resident shall be under the care of a physician licensed by the Virginia Board of Medicine (12VAC5-371-240).

In addition, residents of nursing homes are also given certain rights as defined by Virginia Code §32.1-138. See http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+32.1-138. Nursing homes are the most regulated and structured residential options for our Seniors requiring some level of daily health care. If the facility provides care through Medicare and Medicaid programs, it is deemed a “Certified nursing facility” (Virginia Code §32.1-123; Virginia Code §32.1-127) and must be in compliance with both federal and state laws.

Of course, the more rules and regulations that define and control the daily operations of a nursing home, the greater the responsibility of the staff. These are the people who will be charged with the daily task of caring for your loved one, and making sure they are in compliance with state and federal laws. No matter how nice and or attractive the facility might be, the staff will make the difference between your loved one being cared for and encouraged, or not.

A nursing home is best suited for someone:

Who requires daily health care – such as assistance getting in and out of bed; taking medicine; or using the restroom.

Who may have dementia or Alzheimer’s and as a result, is unable to eat and or bathe daily without reminder or assistance;

Who is recovering from a fall or accident and is therefore unable to walk, dress and or eat without assistance

ASSISTED LIVING FACILITY

“Assisted living facility” means an adult care residence which has been licensed by the Virginia Department of Social Services to provide a level of service for adults who may have physical or mental impairments and require at least moderate assistance with the activities of daily living. Within assisted living, there are two types: regular assisted living for those seniors (typically) who need assistance with one or more daily activity; and intensive assisted living for someone who may be incapable of performing activities due to mental and/or severe physical impairment (12VAC30-120-450).

The Virginia Department of Social Services licenses assisted living facilities but does not regulate in the way the Department of Health regulates nursing homes. While there are Virginia guidelines regulating aspects of assisted living facilities, they are limited: An assisted living facility must: (a) provide or coordinate personal and health care services; and (b) provide 24-hour supervision.

As reflected in the table below, assisted living facilities have no obligation to provide health care and/or have health care staff available to assist your loved one. In addition, with no obligation to provide such services, there is the question as to whether or not they owe a duty to warn or treat residents with illnesses or diseases that could be transmitted from other residents.

While a nursing home will have many nurses on staff and doctors hired to monitor the residents, assisted living is more analogous to an apartment building or college dorm where laundry and food services are provided and residents are on their own for the rest of the day.

An assisted living Facility is best suited for someone:

Who is basically independent but may not be able or willing to prepare their own food or drive to doctors’ appointments;

Someone who wants to scale back and anticipates needing assistance with laundry, cooking, etc. in the near future.

A couple where one spouse is independent but may need assistance in feeding and or providing for needs of other spouse.

CONTINUING CARE RETIREMENT COMMUNITY

In Virginia you may also see advertisements for a retirement community. They are popping up all around our favorite College Towns and Tourist destinations.

A Continuing Care Retirement Community provides care depending on your current needs. Like an insurance policy, the resident pays an entrance fee and periodic adjustable payments, which in turn gives the resident a package of residential and healthcare services that the CCRC is obligated to provide at the time these residential and health care services are required. For example, if upon entering, all you want is help with your meals, that is the only service which will be provided. If you require intensive physical therapy or God forbid, daily assistance for a Dementia patient, the CCRC has assisted living services or nursing home services available under your contract. Continuing care contracts are regulated by the Virginia Bureau of Insurance of the Virginia State Corporation Commission.

Many CCRCs can have nursing home services available either on-site, or at licensed facilities off-site (12VAC5-360-10). While you may be entering the Retirement Community as a very healthy independent and capable resident, as your needs change, so will your contract with the Community and in turn, the facility’s obligations to you.

A Continuing Care Retirement Community Facility is best suited for someone:

Who is basically independent but anticipates the need for daily health care for themselves or a spouse in the near future;

Someone who is physically disabled and would be unable to care for themselves or a spouse if the disability grew worse.

With at least three very different choices, it is very important to do your research:

To research assisted living facilities in Virginia, go to Department of Social Services website: http://www.dss.state.va.us/facility/search/alf.cgi.

To research nursing homes, go to Medicare’s website: www.medicare.gov.

AND LAST BUT NOT LEAST

It is always best to speak to a family member of a current resident and spend time getting to know the staff, no matter what type of facility you are looking into. If looking and researching is not enough, then consider the chart below – a comparison of the legal duties of a nursing home compared to the legal duties of an assisted living facility in Virginia.

DUTY or REQUIREMENT

NURSING HOME

ASSISTED LIVING

Duty to provide nursing care and or monitor resident’s health?

YES

NO

Doctor required to supervise residents?

YES

NO

Each resident shall be under the care of a physician licensed by the Virginia Board of Medicine?

YES

NO

Must have nurses on staff?

YES

NO

Must offer rehabilitative services?

YES

NO

Must have ongoing consultation from a registered dietitian or dietitian on staff?

YES

NO

24 Hour Supervision required?

YES

YES

Must develop a written plan upon admission of resident?

YES

YES

Staff must undergo criminal background check?

YES

YES

Monitored by Virginia Center for Quality Health Care Services and Consumer Protection

YES

NO

Monitored by Department of Social Services

NO

YES

*Life expectancy increased dramatically during the past century, from 47 years for Americans born in 1900 to 77 years for those born in 2001. These same factors—improved medical care and prevention efforts— that are partly responsible for the dramatic increases in life expectancy have also produced a major shift in the leading causes of death in the United States in the past century, from infectious diseases and acute illnesses to chronic diseases and degenerative illnesses.” The State of Aging and Health in America 2004, published by the Center for Disease Control, available at http://www.cdc.gov/aging/pdf/State_of_Aging_and_Health_in_America_2004.pdf.

**See generally, Virginia Code §32.1-123, as amended and Virginia Administrative Code § 12VAC5-360-10.

***It is a Felony under Virginia law to operate a nursing facility without a license. See generally, 12VAC5-371-30.

Does Your State Accept Medicaid for Assisted Living Facilities?

Posted on 30. Mar, 2010 in Assisted Living Articles

Before individual state governments passed much-needed legislation, many assisted living facilities were only private pay situations. Fortunately, for many older Americans facing housing dilemmas, Medicaid waiver programs have taken up much of the slack that Medicare did not. Providing funds for placement in assisted living facilities as well as a number of other helpful services, Medicaid helps lower-income, elderly individuals receive the care they need.

All states accept funds from Medicaid waiver programs for placement within a nursing home, which are normally more expensive than assisted living facilities. While many states do not recognize funds from Medicaid waiver programs for assisted living, those that do are located throughout the country and offer many options to aging Americans needing assistance with daily living activities. After searching high and low, finding a general overview of states that offer the Medicaid waiver program for assisted living was rather nonexistent, but my research is your gain.

Medicaid Waiver Programs State Line-Up

As of publication, there are no definitive lists that outline states with Medicaid waiver programs for assisted living facilities. At best, the government (via the Centers of Medicare and Medicaid Services) has created an online list of all Medicaid waiver programs (1), meaning visitors have to spend time finding the desired information. Although I’ve outlined the states that do accept Medicaid waiver programs, certain impediments may be in place to securing a Medicaid-covered bed in an assisted living facility. Be aware that some states may offer the program on a trial basis, follow limited participation quotas, or are just introducing the program to state residents. As always, verify eligibility requirements with the Centers for Medicare and Medicaid Services.

i. Arkansas – Aged and disabled program participants are provided with adult residential care, assisted living, and medication assistance and consulting till death.

ii. California – Beginning in 2003, California began offering Medicaid waiver programs to aged individuals.

iii. Delaware – Program participants with Alzheimer’s, dementia, physical disabilities, or needing assistance with activities of daily living (ADLs) are provided with funds for assisted living facilities.

iv. Florida – There are quite a few Medicaid waiver programs for the state of Florida, including a broad waiver for all individuals aged 65 or older; individuals with Alzheimer’s disease and dementia; case management services; assisted living; incontinence supplies to frail, elderly, and disabled individuals aged 60 or older; and a home and community based waiver that offers mental health services to seniors in specific areas of the state.

v. Iowa – Many assisted living facilities across the state accept money from Medicaid waiver programs; however, the number of residents in a facility using these funds is limited.

vi. Indiana – Aged and disabled individuals are provided with case management, transportation, assisted living, medical equipment, congregate care, home delivered meals, nutritional supplements, and much more. The state also offers a targeted assisted living waiver program that focuses on therapeutic social and recreational programming.

vii. Maryland – Program participants are assessed and, if deemed eligible, are offered either services in the home or placement in an assisted living facility.

viii. Mississippi – Medicaid waiver programs for this state cover individuals requiring assisted living services due to disabilities, Alzheimer’s disease, and dementia as well as individuals aged 65 and older needing adult residential care.

ix. Missouri – Program participants aged 65 and older needing assisted living services are eligible.

x. Nebraska – Individuals aged 65 or older who agree to participate in medical and health care evaluations are eligible for home services or can be placed in an assisted living facility (2).

xi. New Jersey – Under the Enhanced Community Options waiver (3), individuals can either remain at home to receive assistive services or be placed in an assisted living facility.

xii. Ohio – The Ohio Department of Aging is responsible for determining applicants’ waiver eligibility, evaluation of disabilities, prognoses, and financial assets for proper placement within assisted living facilities.

xiii. Rhode Island – Aged and disabled individuals are provided with assisted living services, case management, and specialized medical equipment.

xiv. Vermont – Eligible Medicaid recipients are provided with assisted living services under Choices for Care, 1115 Long-Term Care Medicaid Waiver, as well as a number of other care options.

xv. Virginia – This state’s Medicaid waiver programs apply only to individuals with Alzheimer’s disease or dementia who require the services of assisted living facilities. Depending upon the medical circumstances, age limits may be in effect.

xvi. Washington – The waiver program provides for aged and disabled residents at assisted living facilities.

xvii. West Virginia – Aged and disabled program participants are provided with adult residential care and assisted living services.

Additionally, some states offer details on restrictions and eligibility that can be downloaded by navigating to each respective state’s Medicaid waiver informational link.

What to Look for in the Future

State governments determine eligibility based on income, giving lower-income seniors an opportunity to be placed in a facility that will look after their needs and supervise daily activities. With the baby boomers retiring as we speak and well into the coming years, will we see growth in the number of Medicaid-eligible assisted living facilities in other states? Perhaps the thirty-three or so other states will realize the incredible benefits to both seniors and society in general.

Sources

1. http://www.cms.hhs.gov/MedicaidStWaivProgDemoPGI/MWDL/list.asp?intNumPerPage=all&submit=Go
2. http://www.nenaaa.com/finding-care/aged-medicaid/
3. http://www.state.nj.us/health/senior/go.shtml

Increased Safety in Assisted Living

Posted on 29. Mar, 2010 in Assisted Living Articles

Assisted living facilities are rapidly becoming the nursing homes of the future. According to the National Academy for State Health Policy, more than 36,000 licensed facilities are operating nationwide.[1] Because there is no common definition for these facilities, however, this number may not adequately reflect their prevalence.

Although most litigation in the long-term-care field over the last 10 years has involved nursing homes, suits against assisted living facilities are mounting. One reason is that these facilities are not regulated by the federal government, and the state regulations that exist are inconsistent and, for the most part, lax in enforcing industry standards.

In an attempt to compete with nursing homes, assisted living facilities are accepting residents with greater medical needs or significant cognitive impairment. Most major chains promote special Alzheimer’s disease units, but the reality is that staffing in many of these facilities is inferior to that in nursing homes and simply cannot meet the needs of these residents.

Neglect in assisted living facilities can result in falls, fractures, sexual or physical abuse, pressure sores or other skin breakdown, malnutrition, depression, immobility, and even death. For example, one assisted living facility admitted an elderly alcoholic undergoing detoxification who required close supervision and care. An employee allegedly provided him with a lighter and cigarettes, then left him unsupervised. The resident set himself on fire.[2]

In other cases where supervision was severely lacking, people who tended to wander were admitted into facilities that were not set up to prevent this behavior. Wanderers mostly suffer falls and fractures, but some who have ventured out during winter months have died from hypothermia. One unfortunate resident wandered into the path of a moving train and was killed.

In several cases, assisted living facilities accepted severely ill patients who either had or were at severe risk for developing pressure sores, even though these facilities are not equipped to provide the skilled care—including tube feeding, catheterization, and daily turning and positioning—necessary to prevent or treat them. These residents developed severe pressure sores as a result of improper care.

These scenarios are not uncommon, but a lack of reporting requirements, state investigation, and active litigation has allowed assisted living facilities to continue operating under far less scrutiny than the nursing home industry.

Admission criteria

When a facility accepts residents whose needs or acuity levels exceed the staff’s skill or training, it opens itself up to legal liability. In most jurisdictions, liability can be determined by the state’s admission criteria.

For example, Virginia regulations prohibit assisted-living facilities from admitting or retaining patients who have stage III and IV pressure sores; who are ventilator dependent; who require nasogastric tubes, intravenous therapy, or injections directly into the vein; and who need continuous licensed nursing care.[3] Other states have similar limitations.[4]

These are some common state law criteria that would preclude a person’s admission to assisted living facilities:

1. is a threat to self or others[5]

2. has a contagious or an infectious disease[6]

3. requires care beyond the facilities’ skill[7]

4. requires physical and/or chemical restraints[8]

5. requires 24-hour nursing or other care[9]

6. is bedridden[10]

7. requires specialized long-term care[11]

8. has stage III and/or IV pressure sores[12]

9. requires more than minimal assistance in moving to a safe area during an emergency[13]

10. is less than 18 years old[14]

11. requires help with tube feeding[15]

State regulations that set forth specific admission criteria can be used to set the standard of care in your jurisdiction. Even in states that have no criteria, the community-practice standard would dictate that an assisted living facility may not accept a patient whose needs it cannot meet. However, the lack of case precedent and strong regulatory standards poses significant—although not insurmountable—obstacles to successful litigation.

Case selection

The first step in evaluating your case will be to get the records from the facility, including the signed contract, which should define the duties the facility agreed to undertake.

Most assisted living facilities offer various levels of service. Basic service might include only room, board, and activities. The highest service level might include assessment of physical and mental health, care or service planning (a multidisciplinary process in which various providers come up with a unified plan to address the resident’s physical, mental, and psychosocial needs), medication administration, and nursing care (assistance with bathing, feeding, and grooming). These facilities are like nursing homes that do not provide skilled care, and arguably they should be held to the same standard of care.

You will also need to submit a Freedom of Information Act (FOIA) request to identify the corporate entity that owns and operates the facility. The license should always be available from the local regulatory agency in charge of licensing and inspecting the facility; it may include information about the scope of services that the facility is authorized to provide.

In your FOIA request, also seek access to results of surveys and inspections of the facility conducted by the local department of social services. Do not expect these reports to contain the wealth of information typically included in such reports on nursing homes: Often they do not include assessments of whether the facility is complying with regulatory standards.

Once you have obtained these records, have a reliable nursing expert review the case. Because many nurses who work in the assisted living industry are licensed practical nurses, not registered nurses, they may lack the background you need, so you may need to retain an expert from outside the field. If a case involves a relatively simple issue like a fall, you may not need a liability expert.

Working with your expert, consider these factors when deciding whether to accept a case:

1. The nature of the resident’s condition upon admission. If he or she was mentally competent and living independently, contributory negligence and comparative fault defenses will pose significant hurdles.

2. The nature of the contract and duties the facility assumed. If the facility agreed to provide only room and board, the defense will argue that its duties are comparable to those of a landlord in an apartment building.

3. The quality of the relationship between the resident and his or her personal representative. If the resident is deceased, this issue may take on a greater importance: The nature of that relationship may determine what damages are available under the applicable wrongful death act.

4. Whether the family members make good fact witnesses, appear genuinely outraged by the facility’s conduct, and complained and/or removed their loved one from the facility.

Whether the facility had serious staffing shortages or a pattern of neglecting its residents.

5. Whether the resident suffered a significant injury in the facility that will adversely affect the quality of his or her life in the future, or that caused his or her death.

6. Whether you have strong witnesses and powerful exhibits. Do you have an insider who is willing to blow the whistle on rampant staffing shortages? Do you have color photos of the resident’s pressure sores or compound fracture?

7. Whether the client has significant economic damages that are not encumbered by a Medicare or Medicaid lien.

8. Whether the defendant is a charitable organization, religious affiliate, or part of a large assisted living chain. Charitable organizations tend to be more sympathetic defendants, and some states have statutory limits on their liability.

Liability theories

Attorneys who file claims against assisted living facilities can be creative in developing liability theories. However, don’t complicate your case with unnecessary theories, and remember that the scope of discovery may be affected by the ones you advance.

Common law negligence. This is probably the most common liability theory in assisted living cases. Make sure you do not plead breaches in medical or nursing standards of care, or you may face the argument that you have pleaded a traditional medical malpractice case.

Instead, plead the breach of regulatory and/or industry standards that proximately caused your client’s injury. Because assisted living facilities are not traditional health care providers, these cases should not be subject to damages caps or discovery limitations such as quality assurance privileges that would apply to medical negligence claims. A quality-assurance or peer-review privilege is typically asserted over any documents created to improve the quality of care in that facility—such documents can include incident reports, meeting minutes, or internal memos addressing any problems.

Violations of the state consumer protection or “adult protection” act. Many states have statutes that allow a private right of action for neglect committed in assisted living facilities.[16] Plaintiffs have advanced consumer protection theories even against health care providers,[17] so there should be no reason why such theories can’t be applied against an assisted living facility.

For example, one U.S. district court upheld consumer-protection and fraud-based claims against Manor Care, Inc., an assisted living provider that allegedly persuaded a resident to enter the facility with misrepresentations about staff ratios and training.[18] Ask your client what representations the facility made, and obtain any marketing brochures.

One advantage to filing under state consumer- and adult-protection statutes is that they allow for recovery of costs and attorney fees. While some states specifically exempt health care providers from such statutes,[19] these exemptions should not apply to assisted living facilities.

Breach of contract. Almost all assisted living facilities require prospective residents to sign a contract as a condition of admission. Scrutinize the contract for waivers of liability or of the resident’s right to a jury trial. Facilities can assert such waivers whether or not a plaintiff pleads a separate breach of contract claim. Usually such waivers impose mandatory arbitration of all claims, including tort and contract claims.

Most states limit contract damages to foreseeable economic damages, so don’t plead this as your only liability theory. However, the contract may have required that certain services be delivered to the resident—activities, assistance with daily living, 24-hour supervision—that were not provided. If the resident did not suffer physical injury from the facility’s failure to deliver services, the defense will argue that evidence of such failures should be excluded at trial. You can argue that this evidence is admissible to prove contract damages and to recover monies for services that were not provided.

The defense may respond that contract damages would be based on speculation, since the plaintiff failed to quantify the services that were not provided. To preempt this argument, have your client provide a good-faith estimate of the percentage of services that he or she did not receive.

If you have a strong negligence claim based on a discrete event, such as a fall that caused a hip fracture, you may prefer to omit the contract claim to avoid confusing the jury with collateral facts and issues unrelated to your client’s damages.

Negligent hiring and/or retention. Consider this claim when the case involves intentional torts, such as assault, committed by an employee who the defendants knew or should have known was a potential danger to residents. Obtain the employee’s personnel file early in litigation; if you discover evidence of the defendant’s knowledge, amend the complaint to include this claim before the statute of limitations expires.

Also consider suing the employee individually. If the same defense firm represents both the employee and the corporation, it will be difficult for the defense to argue that the employee was not operating within the scope of his or her employment.

When the case involves an intentional tort, always check the terms of the facility’s insurance coverage to determine whether any exclusions apply. If the policy excludes coverage for intentional torts, you may want to dismiss the claim against the employee after you have obtained a ruling that he or she acted within the scope of employment. Then, if you recover damages against the facility under a general negligence theory, this ruling will make it difficult for the defense to argue in a subsequent declaratory judgment action that liability insurance coverage for torts does not apply.

Wrongful death. When there is evidence that the facility’s negligence caused or contributed to the resident’s death, you should assert wrongful death and survivorship claims. Also plead any claims for injury that did not contribute to the death with your survivorship claims.

Determine what damages you can recover under the wrongful death statute in your jurisdiction. If the law allows only economic damages, you may decide to forgo a wrongful death claim.

Punitive damages. Economic damages in an assisted living case usually are not impressive because most residents are too old or infirm to hold jobs, and any preexisting conditions that your client has may weaken the compensatory damages claim. Therefore, plead punitive damages whenever possible. Making a punitive damages claim will also provide a basis for exploring the defendant’s conduct toward other residents who experienced neglect similar to your client’s. Courts around the country have upheld such claims against nursing homes,[20] and these precedents should apply to assisted living facilities.

Essential experts

In almost every assisted living case, you will need experts to establish causation and damages. Since many residents injured in assisted living facilities require long-term care in a nursing home, consider obtaining a life-care plan from a qualified expert. In most cases, you will need a medical expert to establish causation, support the life-care plan, and testify to life expectancy. When determining whether the facility breached regulatory or community-practice standards in admitting a resident whose needs exceeded its capabilities, have an expert evaluate the resident’s condition and the relevant admission criteria.

Be prepared for a battle over the admissibility of your experts’ testimony. Selvin v. DMC Regency Residence, Ltd., a Florida case, is a good example.[21] In Selvin, an elderly resident of an assisted living facility wandered off and was found dead in a nearby canal. The plaintiff alleged two separate theories of liability: The first was a statutory wrongful death action, and the second was based on alleged violations of statutes relating to assisted living facilities.

The plaintiff claimed that the facility had a common law and statutory duty to supply at least the level of services and care that all licensed assisted living facilities generally furnish residents of the decedent’s age and health condition.

The plaintiff sought to introduce expert testimony that specific safety precautions that the defendant had not taken were the industry standard, including building a fence to prevent elderly residents from wandering near a dangerous area of the canal. The trial court excluded this testimony, finding that the facility had no legal duty to fence off the canal to the general public.

The appellate court reversed, finding that the facility’s undertaking to furnish certain services created a legal duty to protect residents. The court also held that the trial court had erred in excluding the expert’s testimony regarding industry standards.

Experts may also be helpful in cases involving falls, depending on the facts of the case. If the facility’s staff simply dropped the resident during a transfer or made some other obvious mistake, an expert may not be necessary.[22] In more complex cases, an expert will help the jury understand the facility’s negligence in failing to implement adequate fall-prevention measures.

For example, if the resident came to the facility with multiple risk factors for falling—such as dementia, unstable gait, arthritis, or a history of falls—that were never assessed or planned for, and fell while wandering the hallway, retain an expert to discuss how the standard of care for fall prevention was breached. To establish causation, the expert will testify that if the facility had followed appropriate standards, the fall, more likely than not, would have been prevented.

As the use of experts in assisted living cases is an area of first impression in many jurisdictions, educate the court with a trial memorandum addressing your expert’s testimony before trial.

Liability for negligence by assisted living facilities is a new and evolving area of the law, and attorneys who litigate these cases should strive to establish favorable precedent for those who follow. These claims, like those involving nursing homes, help protect the rights of elderly Americans by ensuring that the industry follows standards to keep facility residents safe.

Notes

[1]ROBERT L. MOLLICA, STATE ASSISTED LIVING POLICY: 2000, at 3 (Nat’l Acad. for State Health Pol’y (Portland, Maine) Nov. 2000).

[2] Holt v. Clarksville Residential Care Ctr., No. 50300430 (Tenn., Montgomery Cir. Ct. filed Nov. 11, 2002).

[3] 22 VA. ADMIN. CODE §40-71-150(F) (West 2003 & Supp. 2004).

[4] For example, Montana law prohibits assisted living facilities from admitting patients who are a danger to self or others (aside from being at risk of leaving the facility), in need of physical or chemical restraints, or have severe cognitive impairments rendering them incapable of expressing needs or making basic care decisions. MONT. CODE ANN. §50-5-226 (2002). Florida law prohibits admission of residents who require 24-hour nursing care. FLA. STAT. ch. 400.426(12) (2003).

[5] See, e.g., IOWA ADMIN. CODE r. 321- 25.23(3)(c)(231C) (2004); TENN. COMP. R. & REGS. 1200-8-11-.05(6) (2004).

[6] See, e.g., FLA. ADMIN. CODE ANN. r. 58A-5.0181(1)(b) (2003); UTAH ADMIN. CODE 432-270-10(5)(b) (2003).

[7] See, e.g., IDAHO CODE §16.03.22- 422.07.a (Michie 2003); OR. ADMIN. R. 411-056-0020(1)(a)(A) (2004).

[8] See, e.g., ARIZ. ADMIN. CODE R9-10-705.1 & .2 (1998); MISS. REGS. pt. I §A-122.1.b(1) & (2) (2003); MONT. CODE ANN. §50-5-226 (2003); TENN. COMP. R. & REGS. 1200-8-11-.05(8) (2004).

[9] See, e.g., N.M. ADMIN. CODE tit. 7, §8.2.19 (B) (2004); S.D. ADMIN. R. 44:04:04:12.01.(1) (2000); WIS. ADMIN. CODE §HFS83.06(1)(a) 4.a (2000).

[10] See, e.g., MO. REV. STAT. §198.073.1 (2003).

[11] See, e.g., N.J. ADMIN. CODE tit. 8, §36- 4.1(f) (2004).

[12] See, e.g., D.C. CODE ANN. §44- 106.01(e) (2) (2004); MISS. REGS. pt I §L-122.1.b(1) & (2) (2003).

[13] See, e.g., 210 ILL. COMP. STAT. 9/75(c)(5) (2003).

[14] See, e.g., D.C. CODE ANN. §44-106.01.(c) (2004); N.M. ADMIN. CODE tit. 7, §8.2.19 (2004).

[15] See, e.g., FLA. ADMIN. CODE ANN. r. 58A-5.0181(1)(k)(2) (2003); MISS. REGS. pt. I §L-122.1.b(4) (2003).

[16] See, e.g., ARK. CODE ANN. §20-10-1209 (Michie 2004); CAL. HEALTH & SAFETY CODE §1430(b) (West 2003); CONN. GEN. STAT. §19a-550(e) (2003); see also D.C. CODE ANN. §44- 105.05 (2004).

[17] See, e.g., Winkler v. Interim Servs., Inc., 36 F. Supp. 2d 1026 (M.D. Tenn. 1999); Chalfin v. Beverly Enters., Inc., 741 F. Supp. 1162 (E.D. Pa. 1989), reconsideration denied, 745 F. Supp. 1117 (E.D. Pa. 1990). But see Dorn v. McTigue, 157 F. Supp. 2d 37 (D.D.C. 2001).

[18] Beaty v. Manor Care, Inc., No. 02-1720-A, 2003 U.S. Dist. LEXIS 25044 (E.D. Va. Feb. 10, 2003). The case gave rise to a detailed memorandum opinion that upheld liability theories based on actual and constructive fraud, violations of the Virginia Consumer Protection Act, and false advertising.

[19] See, e.g., TENN. CODE ANN. §§ 71-6-101 to 71-6-120 (2002).

[20] See, e.g., Tex. Health Enters., Inc. v. Geisler, 9 S.W.3d 163 (Tex. App. 1999) (repeated staffing shortages and other acts of negligence supported punitive damages); Estate of McIntyre v. Transitional Health Servs., Inc., No. 2:96CV00424, 1998 U.S. Dist. LEXIS 13965, at *17-18 (M.D.N.C. May 20, 1998) (defendant’s knowledge that it was violating several health codes and its failure to remedy those violations might reasonably be found to constitute reckless indifference to residents’ rights); see also Christopher Vaeth, Allowance of Punitive Damages in Medical Malpractice Action, 35 A.L.R. 5th 145 (1996).

[21] 807 So. 2d 676 (Fla. Dist. Ct. App. 2001).

[22] See, e.g., Walker v. S.E. Ala. Med. Ctr., 545 So. 2d 769, 771 (Ala. 1989) (not requiring plaintiffs to present expert testimony because the alleged breach of care—leaving the bed rail down contrary to doctor’s orders—was so apparent as to be understood by a layperson).

Assisted Living Litigation: Considerations in Pursuing Relief for Those Neglected and Abused

Posted on 28. Mar, 2010 in Assisted Living Articles

Assisted living facilities are rapidly becoming the nursing homes of the future. According to the National Center for Assisted Living, there are over 36,000 licensed assisted living facilities nationwide with an estimated 1 million residents.[1] However, because there is no common definition for assisted living facilities, this number may not adequately reflect the prevalence of these facilities. In fact, in 2002 the National Conference of State Legislatures hailed the assisted living market as one of the fastest growing long-term care options for senior citizens; the number of seniors in assisted living facilities receiving Medicaid benefits has grown nearly 50% over the past few years.[2]

These facilities tend to aggressively market and recruit residents, many times promising staffing levels or services that, in reality, are not available.[3] In an attempt to compete with nursing homes, assisted living facilities are accepting patients with higher acuity. Most major chains promote special Alzheimer’s Disease Units, and are accepting patients with significant cognitive impairment. 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 the higher acuity residents. The end result is that residents throughout the county are suffering from serious injuries due to the neglect and abuse that is taking place in these facilities.

A. Assisted Living v. Nursing Home Care

Assist living abuse and neglect cases and nursing home abuse and neglect cases are similar in some respects, i.e., both involve supervision and care of the elderly, but evaluating the assisted living case involves a greater perception of the differences in the two types of facilities.

1. Standards of Care. The litigation of assisted living abuse and neglect cases, like the litigation of nursing home abuse and neglect cases, can be an effective tool in forcing the industry to comply with proper standards. However, since most states have weak regulations, it often becomes difficult to establish the legal standard of care for a particular facility. Many times a plaintiff may have to fall back on basic community practice nursing standards that will apply when an assisted living facility contracts to provide more than just room and board.

Nursing homes are highly regulated and must comply with the regulations set forth in the Omnibus Budget Reconciliation Act (“OBRA”) of 1987[4] (otherwise known as the federal Nursing Home Reform Act) which set minimum standards of care for long term care facilities that receive federal funding. 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, not aggressively enforced.

When considering the basis for liability, one must consider whether the assisted living facility breached regulatory or community practice standards in admitting the resident whose needs may have been too great to be met by the assisted living facility. Many assisted living facilities, especially those with “Specialized Alzheimer’s Units” are accepting residents with advanced dementia who would normally be admitted to a nursing home, and possibly even a skilled wing of the nursing home. In such cases, it would be advisable to obtain an expert who will evaluate the resident’s condition and the relevant admission criteria. Such an evaluation will likely be beyond the abilities of a lay person, although many admissions decisions in assisted living facilities are being made by non-medical personnel.

Almost all states prescribe some limitation on who can be admitted into an assisted living facility. For example, Virginia regulations prohibit adult care facilities from admitting or retaining patients with a variety of conditions, including ventilator dependency, dermal ulcers stages III and IV, those requiring intravenous therapy or injections directly into the vein, nasogastric tubes, and those who require continuous licensed nursing care. 22 VA. ADMIN. CODE § 40-71-150 (West 2003). Other states contain similar limitations with prohibitions aimed at excluding patients with a demonstrated need for skilled or specialized care.[5] Assisted living facilities do not provide skilled care; consequently, they are uniformly required to screen patients to determine the level of care needed and reject patients whose needs exceed their capacity. State regulation of assisted living facilities is lax and, for the most part, ineffective. Only a few facilities in the Commonwealth of Virginia have been denied a license for regulatory noncompliance. It is the opinion of this author that weak regulatory enforcement is in part due to inadequate regulations that do not adequately specify industry standards.

2. Experts. To litigate a nursing home abuse and neglect case it almost always requires the use of medical experts who will define the standard of care and address breaches in the standards. As assisted living facilities are generally not considered health care providers, one may question whether an expert is necessary. This will obviously depend on the facts of your case. But in almost every case, at the very least, you will require an expert to establish causation and damages. Since many times injuries in assisted living facilities result in the patient requiring long term care in a nursing home, you may also want to consider obtaining a life care plan from a qualified expert.

Once you have obtained records, you should have the case reviewed by a nursing expert you can rely upon. Unlike nursing homes where there DON and Administrators are RNs, many of the nurses who work in the assisted living arena are LPNs and lack the background that you may be looking for in an expert. Finding talented nurse experts who are actively involved in assisted living care is a challenging task. This author has used the ATLA list serve, and random calling of facilities to locate qualified experts.

B. Evaluating the Assisted Living Case

1. Facility Records. The first step in assessing liability against an assisted living facility will be to obtain the records from the facility and the contract that was signed. The contract will likely define the duties undertaken by the facility. Most assisted living facilities have various levels of service. Level one might be the basic service which would include only room, board, meals and activities. Level four, or the highest level of service, might include resident assessment, care or service planning, medication administration, and dementia and nursing care. The standards applied by these facilities could be analogized to standards of care applied by a nursing home that was not providing skilled care.

2. Freedom of Information Act. In addition to obtaining the records, you will need to do a Freedom of Information Act request. This will help you identify the corporate entity that actually owns and operates the facility and may also allow you to see surveys or inspections that were done on this facility. The license should always be available, and may include information about the scope of services that the defendant facility is authorized to provide. Do not expect the surveys or inspection reports to contain the wealth of information that are available for nursing homes. Many times surveys are performed by the local Department of Social Services and do not include assessments of whether or not these facilities are complying with regulatory standards of care.

3. Case Review. The following are some factors to consider early on in deciding whether or not to prosecute an assisted living facility for negligence or abuse:

a. The nature of the resident’s condition upon admission. If she was mentally competent and independent with acts of daily living, you will confront significant problems with contributory negligence and comparative fault defenses.

b. The nature of the contract and duties assumed by the facility. If they only agreed to provide room, board, and meals, the defense will argue their duties are analogous to that of a landlord in an apartment building.

c. The quality of the relationship between the personal representative and the victim. If the victim is deceased, this may take on a greater importance as the nature of that relationship may define your damages under the applicable wrongful death act.

d. Whether the family members make good fact witnesses, appear genuinely outraged by the facility’s conduct, and complained and/or removed their loved one from the facility.

e. Whether the facility had serious staffing shortages or a pattern of neglecting their residents.

f. Did the victim suffer a significant injury in the facility that adversely affected the quality of her life for the future, or caused her death?

g. Do you have strong witnesses and powerful exhibits? Do you have an insider who is willing to blow the whistle on rampant staffing shortages? Do you have color photos of that pressure?

h. Do you have significant economic specials that are not encumbered by a Medicare or Medicaid lien?

i. Is the defendant a charitable organization, religious affiliate, or part of a large assisted living chain?

C. Theories of Liability

With weaker regulation, variety in industry standards, and market competition, it is not surprising that the U.S. General Accounting Administration, in 1999, identified problems in assisted living facilities that included inadequate or insufficient resident care, insufficient trained staff, improper medication administration, and not following admission and discharge policies required by state regulation. A 2000 study by the U.S. Department of Health and Human services found that a high percentage of the staff at assisted living facilities were not knowledgeable about the normal aging process and at least 60% of the staff did not know how to properly manage difficult behavior among assisted living residents.

Liability: Improper Admission. Many times, liability based upon an improper admission results when someone is admitted into a facility that is not locked down or enclosed. Many residents with dementia have a tendency to wander and they should simply not be admitted into facilities that are not locked down or do not have appropriate wander guard systems and/or alarms on the doors.

In Selvin v. DMC Regency Residence, Ltd., 807 So. 2d 676 (Fla. Dist. Ct. App. 4th Dist. 2001) a resident of an assisted living facility wandered off and was found dead in a nearby canal. Plaintiff’s complaint alleged two different theories of liability: the first was a statutory wrongful death action and the second was based on alleged violations of statutes relating to assisted living facilities. Plaintiff alleged that the facility had a common law and statutory duty to supply at least the level of services and care that all licensed assisted living facilities generally furnish elderly patients of the plaintiff’s decedent’s classification and condition. At the time of trial, plaintiff sought to introduce expert testimony about specific safety precautions that were the industry standard and further sought to show that the facility should have built a fence to prevent elders from wandering near the dangerous area of the canal. The trial court precluded this testimony, finding that the facility had no legal duty to fence off the canal to the general public. The Appellate Court reversed, finding that the facility undertook to furnish certain services of care and security which created such a duty of protection. The Appellate Court also held it was an error to exclude testimony regarding industry standards of what could have been done to protect these impaired residents from falling into the canal.

1. Liability: Falls. Another common area of liability in assisted living facilities involves falls. Expert testimony may not be required in such cases. See, Walker v. Southeast Alabama Med. Ctr., 545 So. 2d 769 (Ala. 1989).[6] However, fall assessment and fall prevention planning is usually done by a nurse or other medical provider and it may be advisable to have an expert address this issue. In large part, the need for an expert will be determined by the facts of your particular fall. If the staff simply dropped the resident during a transfer, an expert may not be necessary. However, if the resident came in to the facility with multiple risk factors for falling[7] which were never assessed or care planned and he fell one day while wandering the hallway, you should retain an expert to discuss how the standard of care for fall prevention was breached. To establish causation, she will have to testify that if appropriate standards were followed, it would have, more likely than not, prevented the particular fall which caused injury to plaintiff. As this is an area of first impression in many jurisdictions, it is advisable to educate the court with a trial memorandum addressing experts and other issues prior to trial.

D. Other Theories of Liability

Attorneys who prosecute assisted living facilities have an opportunity to be far more creative in the prosecution of these claims, given the broad range of theories that are available. Below are some typical theories that can be advanced against an assisted living facility.

1. Common Law Negligence. This is probably the most common theory of liability advanced in assisted living cases. Make sure you do not plead breaches in medical or nursing standards of care, or you may face the argument that you have pled a traditional malpractice case. You can plead the breach of regulatory standards and/or industry standards which proximately caused injury to your client. As assisted living facilities are not health care providers, they should not be subject to caps or other discovery limitations (i.e., quality assurance privileges) that apply to traditional health care providers.

2. Violations of the Consumer Protection Act. Make sure to inquire of your client what representations were made as an inducement to enter the facility. Obtain the brochures that were handed out by the marketing representative. Most consumer protection statutes provide relief for misrepresentations which were made as an inducement to enter into the consumer transaction. Case law has allowed such theories to be advanced even against health care providers, so there should be no reason that this theory could not be advanced against an assisted living facility.[8] The advantage is that many states’ consumer statutes allow for the recovery of costs and attorney’s fees.

3. Adult Protection Act. Most states have statutes that have been specifically enacted to protect the rights of elder Americans.[9] Some states, like Tennessee, specifically exempt health care providers from the application of such statutes.[10] As assisted living facilities are not health care providers, these exemptions should not apply.

4. Breach of Contract. Almost all assisted living facilities will make their residents sign a contract as a condition of admission. Scrutinize the contract carefully, as it may contain waivers of liability or waivers of the resident’s right to a jury trial. Such waivers can be asserted irrespective of whether one pleads a separate breach of contract claim. Under the laws of most states, contract damages will be limited to foreseeable economic damages, so it would be disadvantageous to plead this as your only theory of liability. However, the contract may have required that certain services be delivered to the resident (i.e., activities, assistance with acts of daily living, 24 hour supervision) which were not, in fact, provided. The resident may have suffered no physical injury from the failure to deliver such services and the defense will argue that such evidence should be excluded at the time of trial. With the contract theory properly pled, plaintiff can argue that such evidence is admissible to prove contract damages and recover monies for services which were not provided.

Be wary that the defense may argue that since plaintiff failed to quantify the extent of services that were not provided, any award of contract damages would be based on speculation. As such, you should make an attempt to have your client provide a good faith estimate in percentage terms as to what services were not provided. However, if you have a strong negligence claim based on a discreet event (i.e., a fall causing a hip fracture) you may not want to confuse the jury with a lot of collateral facts and issues that may not have a strong bearing on your damages.

5. Negligent Hiring and/or Retention. Consider this claim where you have intentional torts committed by an employee and some evidence that the defendants knew or should have known that this was a troubled employee. Many assisted living facilities don’t adequately screen their employees. This evidence may not be revealed until the discovery process begins and it is essential that you obtain the employee’s personnel file early on in litigation so you can amend your complaint if necessary. Depending on the tolling provisions of your individual claim, the cause of action may still relate back because it arguably arises out of the same set of operative facts. It is also a good idea to sue the employee individually. The same defense firm may represent both the employee and corporation, making it impossible to argue that the employee was not operating within the scope of his employment.

6. Wrongful Death. In any case where there is evidence that the facility’s negligence caused or contributed to the resident’s death, a separate wrongful death claim should be asserted. If there is any good faith basis to conclude that the negligence contributed to plaintiff’s death, you should plead both survivorship and wrongful death claims. Any long term care case has greater value if you can argue that defendant’s neglect caused plaintiff’s death. You may also have separate claims for injury that in no way contributed to the resident’s death. Such claims should be pled with your survivorship claims. Research the law in your jurisdiction to determine what forms of damages are recoverable under a wrongful death statute. If you’re in one of those unfortunate jurisdictions that allow only economic damages, you may not want to plead a wrongful death claim.

7. Punitive Damages. As the nature of economic damages in an assisted living case may not be impressive, and as your client will likely have suffered from several preexisting conditions that may weaken your compensatory damage claim, you should, whenever possible, plead punitive damages. Successfully pleading a punitive damage claim will also provide you with the basis for exploring defendant’s conduct with respect to other residents who were neglected in substantially similar ways to that of your client. Cases from around the country have upheld such punitive damage claims against nursing homes, and there is no reason that such precedent would not apply equally to assisted living facilities. [11]

8. Americans with Disabilities Act/Fair Housing Act. The Fair Housing Amendments Act of 1988 (FAA)[12] prohibits discrimination in virtually all housing and related activities, whether such conduct takes place in the private or public sector. This law is complemented by the Americans with Disabilities Act,[13] which, while it specifically does not include entities covered by the FAA, applies to non-housing functions of a facility, such as common areas, meeting rooms, cafeterias, adult day care, or long term care under Title II (state and local) and Title III (public accommodations) programs.

E. Selected Case Results

A survey of reported cases reveals very few published cases throughout the country. This author has litigated fall cases, negligent admission resulting in pressure sores cases, and one case involving an unfortunate resident who caught fire in the recreation room. The manner in which he was ignited was never explained by the facility.

In one assisted living case taken to verdict in Virginia, plaintiff had fallen during the evening and was placed back in bed (with a hip fracture) by a nurse aid who denied the fall ever happened. Plaintiff was alive at the time the case went to verdict and required ongoing nursing care because of her injuries. The jury rendered a verdict of $1.5 million in compensatory damages.

A brief survey of published assisted living cases results and verdicts across the U.S., reveals the following:

1. Dick v. Bixby Knowles Towers; No. NC 021 371, verdict date 04/15/1998. Plaintiff was walking through the dining room when she felt hot coffee spill onto her neck, back and shoulder. She turned away from the coffee and stumbled and fell. One employee acknowledged holding two pots of coffee at the time of injury, but denied spilling coffee on the Plaintiff. Plaintiff suffered a fractured distal femur and first and second degree burns. Verdict was $378,990, with medical expenses totaling $128,000.

2. Wiggins v. St. John’s Terrace Homes, Inc. Docket No. 96-2705-CA; FJVR reference No. 98:7-55 (July 1998) Plaintiff, an assisted living resident, was seated at a dining table when a coffee pot burst open, pouring scalding coffee down Plaintiff’s leg. Verdict of $223,893.

3. Weiland, as Personal Representative of Louise Debenack, v. Alexandra & Co. of Boca Raton, Inc., d/b/a/ The Colonnade at Haverhill, Docket NO. CL 99-00066 AE; FJVR reference No. 01:6-54 Pub.(June 2001). Plaintiff found dead after she developed a UTI that became septic. Upon admission to hospital, plaintiff had a large hematoma which was not explained by the defendant. Settlement for plaintiff for $1 million.

4. Estate of John Doe v. Anonymous Assisted Living Facility. (Reported from the Michigan Trial Reporter, JAS Publication) Settlement of $1,350,000 for an elderly assisted living resident who died from burn injuries sustained while showering. Plaintiff’s theory of negligence alleged that defendant was negligent in not having proper temperature controlling devices for their residents.

5. Davis v. Premium Health Care, Inc. Docket No. 98-20263, Reference No. 01:8-12 (August 2001). Settlement of $300,000 for decedent who developed multiple pressures sores (including a stage IV) while in the facility.

6. Casaletto v. Helen Homes Corp., d/b/a The Palace Gardens, Docket NO.: 01-12468 BA 20; FJVR Ference No. 02:9-44 (Miami, September 2002) Defense verdict involving an 86 year old male who was admitted to an assisted living facility in May and suffered a fall in August of the same year. Plaintiff alleged improper admission and failure to properly supervise. Defendant contended that the decedent was a proper admission and that the level of supervision was appropriate in he ambulated independently. Both parties relied on experts in the area of assisted living administration.

7. Pollock v. CCC Investments I. LLC d/b/a Tiffany House by Marriot, Docket No. 01-16746, Ref. No. 05:3-9 (Florida 2005). Defense verdict involving a resident who was murdered by another resident. Defendant’s argued they had no notice of the other resident’s potential violent conduct. The jury found there was no negligence on the part of defendants that caused plaintiff’s death. They also found there was no violation of the assisted living facility’s resident’s rights under Florida statutory law. Defendant’s highest offer was $750,000 with lowest demand at $9,900,000.

II. Conclusion

As this is a new and evolving area of the law, attorneys who litigate these cases should strive to establish favorable precedents for those who follow. If the recent explosion in nursing home litigation is any indication, assisted living facilities could be the nursing homes of the future. As with nursing home litigation, the civil prosecution of these cases provides an important safeguard in protecting the rights of our elderly and assuring that proper standards are followed in the industry.

[1] Mollica, Robert L. State Assisted Living Policy: 2000. Portland: National Academy for State Health Policy, 2000, Executive Summary.

[2] Issue Brief, Health Policy Tracking Service, National Conference of State Legislatures, October 1, 2002.

[3] Based on a study done by AARP that randomly shopped some 80 assisted living facilities, a pattern of discrepancies was found between what representations were made in the marketing materials versus promises made in the admission’s contract. Two previous surveys that compared marketing materials and assisted living contracts, one by the American Bar Association’s Commission on Legal Problems of the Elderly Consumer Reports, and the other by the U.S. General Accounting Office, revealed similar problems. Adrienne Oleck & Bruce Vignery, Nurture or Neglect? Challenging Deceptive Practices in Assisted Living Facilities, CONSUMER ADVOC., Jan. 2001, 7(1).

[4] See, 42 C.F.R. 483.10 et seq.

[5] Montana law prohibits assisted living facilities from admitting patients who, inter alia, are non-ambulatory, in need of physical/chemical restraints, or unable to self-medicate. MONT. CODE ANN. § 50-5-226 (2002); Florida law prohibits admission of residents who are bedridden, those who have stage III or stage IV pressure sores and those residents who may require 24 hour nursing care. FLA. STAT. Ch. 400.407 (2005).

[6] In Walker, there was evidence that a patient had a history of falls and further that the patient’s doctor had instructed the nurse to leave the bed rails up at all times. A nurse lowered the bed rails and the patient fell. The court held that the plaintiffs were not required to present expert testimony because the breach of care alleged by the plaintiffs, leaving the bed rail down contrary to doctor’s orders, was so apparent as to be understood by a layman.

[7] Risk factors for falling could include dementia, confusion, unstable gait, prior stroke, arthritis, medications usage, history of falls, history of agitated behaviors, vision problems, and weakness or muscle atrophy.

[8] Dorn v. McTigue, 157 F. Supp. 2d 37 (D.D.C. 2001) (holding that District of Columbia Consumer Protection Act applied to the medical profession); Chalfin v. Beverly Enters., Inc., 741 F.Supp. 1162 (E.D. Pa. 1989), reconsideration den., 745 F.Supp. 1117 (E.D. Pa. 1990) (health care services provided by a nursing home were within the scope of “trade or commerce” provisions of Pennsylvania consumer protection laws); Winkler v. Interim Servs., Inc., 36 F. Supp. 2d 1026 (M.D. Tenn. 1999) (Disabled Medicare beneficiaries’ claims against home health care provider for violation of Tennessee Consumer Protection Act were not exempt on the grounds that the provider’s termination of services was regulated by the Medicare Act, given the alleged claims did not arise under the Medicare Act).

[9] According to the National Center of Elder Abuse, www.Elderabusecenter.org/laws, all fifty states and the District of Columbia have enacted legislation authorizing the provision of adult protection services in cases of elder abuse. The statutes vary widely on definitions of abuse, investigation responsibility, and remedies for such abuse.

[10] The Tennessee Adult Protection Act, TENN. CODE ANN. § 71-6-101 et. seq. (2002) does not apply to actions against “health care providers,” as defined in the TENN. CODE ANN. § 63-6-228 et. seq. Alternatively, Tennessee’s Medical Malpractice Act provides the statutory authority to suits against health care providers.

[11] See, Texas Health Enters. V. Geisler, 9 S.W.3d 163 (Tex. App. Fort Worth 1999) (repeated shortages of staffing and other acts of negligence supported punitive damage award against defendant); Estate of McIntyer by & Through Ex’r v. Transitional Health Servs., 1998 U.S. Dist. LEXIS 13965 (M.D.N.C. May 1998) (holding that defendant’s knowledge that it was operating in serious violation of several health codes and that it took very little, if any, action to remedy those violations might reasonably be found to constitute reckless indifference to the rights of their elderly residents with varying medical and non-medical needs); Beverly Enters. – Florida v. Spilman, 661 So. 2d 867 (Fla. Dist. Ct. App. 5th Dist. 1995) (testimony that expert was “outraged” at poor level of care of resident who developed and died from an infected decubitus ulcer supported punitive damage award against corporation and management company). See also, Christopher Vaeth, Allowance of Punitive Damages in Medical Malpractice Action, 35 A.L.R. 5th 145 (1996).

[12] Fair Housing Amendments Act, 42 U.S.C. § 3601 et. seq. (2000).

[13] Americans with Disabilities Act, 42 U.S.C. § 12101 et. seq. (2000).

Popular Holiday Activities in Assisted Living Homes This Year

Posted on 27. Mar, 2010 in Assisted Living Articles

Besides holiday parties in the nursing homes right around Christmas time, there are several other activities that <a rel=”nofollow” onclick=”javascript:pageTracker._trackPageview(’/outgoing/article_exit_link’);” href=http://www.greatplacesinc.com/features/AssistedLiving.aspx>assisted living</a> centers have in store.

Local And Community Plays
Besides the local theater, stage house or ballet, affordable plays and performances done by elementary schools, junior highs and high schools are just as entertaining, more affordable and often times in need of more attendees.

Christmas Light Displays
An affordable and beautiful activity for seniors is taking in the sites from the comfort and mobility of an assisted living bus or van.

Decorating Holiday Cookies
Decorating holiday cookies is an affordable and fun way-as well as delicious way to celebrate the holidays. Decorated holiday cookies can be given to their family members or last as dessert throughout the week.

Knitting, Scrapbooking, Ornament Making Classes
Gather anyone who is interested in learning how to make a gift from the heart for their loved ones in the activity area and have an “expert” guest come and demonstrate making scrap books, ornaments or other crafty projects like knitted scarves, hats or potholders for family gifts.

Sleigh Ride
More of a splurge say than other outings or activities-  a sleigh ride is a fun, festive thrilling activity that is still okay for sedentary individuals. Nothing says winter holiday like a sleigh ride.

Nativity Event
For your religious residents, making plans to attend a church nativity performance or other choir concert may be a very popular activity that more than your religious residents will treasure.

Christmas Tree Decorating Party
Once everyone has made an ornament, the next best thing to do is to have a Christmas tree decorating party to show them all off. Make it a social and festive event complete with lights, eggnog and music.

Candy Cane, Holiday Cake Tours
There are several different companies around town that offer free tours of their facilities- be it candy cane factories to holiday card printing presses. See what factories are in your area and plan for an exciting and interesting outing.

Even during these hard economic times, there are several things assisted living facilities can do to make the season more festive. From crafts and parties in house to free events out about town, there is no reason any assisted living calendars shouldn’t be filled with holiday themed events.

Assisted Living & Nursing Homes: is it the Right Career for You?

Posted on 26. Mar, 2010 in Assisted Living Articles

As we age there are many ways in which we need to be cared. From in home healthcare to assisted living facilities there is many career choices if you have the heart for this type of the healthcare industry. Some of the career choices may involve a background in medicine or it may be that you just want to find a rewarding way to help. There are many options available if you want to get involved in this industry.

In Home Healthcare

For many, their last months, days or hours want to be spent in the comfort of their own home. In home hospice or nursing care can be a tremendous help for the families. It is also a very sensitive time because you are going to someone’s home and caring for what may be his or her final needs. Often you may be surrounded by other family members and might want training or additional information on how to respect people’s wishes, space and how to best comfort them during difficult times. This time spend with a family can also be very fulfilling. It allows you to forge a very special and meaningful relationship with those whom are receiving care and for their families. Families are counting on you to help their loved ones during very difficult times.

Assisted Living Facilities

These types of facilities provide a living situation for people that need some help but who are capable of doing most of their daily activities without extra help or supervision. By working in this type of facility you can forge many great relationships and will learn a lot from those around you. There may be opportunities to help with providing activities, or doing routine checkups on patients or providing other care and support as needed.

Nursing Homes

In this type of atmosphere the daily needs of those being cared for need to be assisted with. Simple activities such as eating or bathing may have become a chore that requires assistance. Again, this would be a valuable place to forge meaningful relationships. It may be difficult at times to watch those you have come to know and love pass away. However, the potential rewards may outweigh the emotional strain. Nursing homes have regulated schedules, times for activities and perhaps even time alone to read to a patient or spend time in conversation.  As with assisted living facilities, there are many different areas in which you could become involved. It could be a great way to exercise your conversation skills and spend time with someone that needs a companion or it may be a job for which you would be perfect.

There are many potential benefits to working in nursing homes, assisted living facilities or as an in home health provider. The meaningful relationships and the reward of helping and caring for others make for a tremendously fulfilling career. If you have the emotional strength, the skills and the compassion, this might be the right industry for you. Even without medical training there are many other ways to help. Contact local facilities to find out if there is a place that is right for you.

Are The Workers In Your Loved One’S Assisted Living Facility Qualified?

Posted on 25. Mar, 2010 in Assisted Living Articles

“Are you dedicated, driven, committed, and professional? Do you want to make a difference by caring for others and working with people from all backgrounds and socio-economic levels?”

Yes, this could be an ad aimed at recruiting knowledgeable senior caregivers for openings at an assisted living facility. And, in fact, the many qualified care providers on the staff of a facility work together to make sure each day’s routine runs smoothly. Of course, in order to ensure the highest level of quality and care for your loved one, verifying the facility’s credentials and the staff’s training and on-the-job experience are vital.

Essentially, an assisted living facility provides care for individuals who can no longer live independently but do not necessarily need round-the-clock care. More importantly, however, you must remember that an assisted living facility is not a nursing home nor can it provide the kind of medical care your loved one may require. And while there are many safeguards in place, there are many more caregiving roles at the facility that are not required by law to be provided.

But how do you know what to expect from each caregiver? First and foremost, inquire about the hiring requirements of the senior caregivers – what are their daily tasks? What sort of training have they received? Remember you can never be too careful or too inquisitive, so before your tour, prepare yourself with a look into the care provider structure of an assisted living facility.

RNs/LPNs – Even with an extended staff of experts and senior caregivers on hand, an assisted living facility is not required by law to have registered nurses and licensed practical nurses on staff or even on call.

Nurses are often required to assess the health care needs of residents in coordination with the administrator and the resident’s physician, serving as a sort of liaison between the two parties. They are responsible for developing a comprehensive plan or outline of care for each resident (if necessary) and carry out these tasks on a daily basis. In addition, they train new hires that have an active part in the resident’s health plan.

As RNs and LPNs are licensed medical caregivers, only they can administer and/or distribute medication to residents. While many facilities do have RNs on call, it makes administration and/or distribution of medication to residents harder as they are the only ones able to perform these tasks. If your loved one requires round-the-clock care and supervision from senior caregivers, a skilled nursing facility may be a more practical option.

CNAs/General Caregivers – Certified nursing assistants and general caregivers are hired to bathe, dress, feed, and tend to residents on a daily basis. While CNAs have extensive training, hands-on experience, and a considerable subject knowledge base, general senior caregivers often receive on-the-job training, learning as they go, so to speak.

In addition, some facilities require specialization in key areas such as dementia and Alzheimer’s disease. CNAs and general senior caregivers are the primary point people that interact with residents every day and often provide them with much-needed social and emotional support.

Administrator/Director of Marketing and Sales – Initially, you’ll speak with the administrator and/or the director of marketing and sales, who will guide you through the entire process, conduct a tour of the facility, and answer all of your questions regarding the senior caregivers and staff. The administrator oversees all operations within an assisted living facility, keeping track of the staff, and monitoring residents’ needs and well-being. He or she is responsible for the training of all licensed and unlicensed staff and senior caregivers on the premises.

The director of marketing and sales, on the other hand, promotes the assisted living facility, ensuring the proper advertising messages are relayed regarding the approach to resident care, amenities, and services. He or she will speak with you to discuss the features and benefits of the facility as well as pricing, on-site senior caregivers, and any other perks.

Activity Coordinator – The duties of the activity coordinator are an important part of your loved one’s daily routine at an assisted living facility. These individuals are called on to provide stimulating, mind-challenging, and invigorating games and therapies that help residents get moving and thinking. The activity coordinator keeps aging minds thinking cognitively and aging bodies moving actively with singing, outdoor adventures, movie nights, shopping trips, and other engaging events and games.

During your tour, observe some of the in-house activities to get a feel for what residents do each day. The activity coordinator at an assisted living facility is also responsible for special programs and social events that occur outside of the scope of daily activities.

Dietician/Chef – The makeup of a senior’s diet is much different, and meals require nutritious elements that aid in recuperation, rejuvenation, and weight maintenance. Though a dietician may not always be on staff, if one is, he or she will be able to offer helpful insights into the necessary requirements of a senior diet, including reduced sodium, increased fiber and calcium, and more protein, all while supervising calorie intake.

Besides proper food handling and sanitation requirements, a head chef at an assisted living facility is often required to have line experience, efficient organization and time management skills, and a basic understanding of preparing food for the senior stomach.

The senior caregivers at an assisted living facility promote interaction and prevent isolation but are not capable of caring for a loved one in poor health. Above all, the most important thing to keep in mind when finding the right place for your loved one is that it offers quality assistance from kind senior caregivers and satisfies the requisites for welfare, health, and happiness.

How to Select a Nursing Home or an Assisted Living Home

Posted on 24. Mar, 2010 in Assisted Living Articles

Nursing home abuse becomes the three scariest words to an individual seeking an assisted living facility. Moving into an assisted living facility means giving up a certain amount of independence and freedom as well as leaving behind a home that is loved and filled with memories.

Nobody wants to leave their home and enter a nursing home. Facing the possibility of nursing home abuse makes the entire process an even scarier ordeal.

Selecting an assisted living facility based on reputation is a place to start. Talking with professionals such as geriatric nurses and doctors, physicians and even psychologists can help in determining whether or not a particular nursing home or assisted living facility carries a low risk of abuse.

Selecting the facility that is appropriate for the individual is also a preventative measure. Nursing homes are different from assisted living facilities, and often placing someone in an assisted living facility when they actual belong in a nursing home can set them up for a certain amount of abuse.

Assisted living staff does not meet the same training requirements in many states as staff and are more likely to lose their patience with someone who is unable to care at least partially for themselves.

Nursing home abuse victims are often seen in hospitals, and often speaking with the nursing staff of the local hospital about a particular assisted living facility can give some indication about whether or not the facility of choice is a high or low risk for abuse.

Of course, searching public records online can also benefit, as lawsuits are public record. Thoroughly investigating a facility prior to undergoing placement is crucial in avoiding abuse.

Lawyers can also be a valuable reference, as they are typically well aware which nursing homes or assisted living facilities are receiving a high number of complaints and which ones are receiving no complaints at all.

Unfortunately, there is no guarantee that even with the greatest amount of due diligence that a loved one won’t fall victim to nursing home abuse, as it is a horribly rampant problem in our society. In fact, America is rated one of the worst first world societies to grow old in. A general lack of respect for the elderly has contributed greatly to the downfall of our elder care.

We, as a society, are happy to warehouse the elderly simply so that we do not have to be reminded of what we may become as our youth escapes us. This is an unacceptable attitude considering these are the people who laid the foundation in one way or another for our very lives to be as they are.

Abuse is simply a statement of society’s ill concern for the aging. Picking a nursing home or an assisted living facility that combats this general attitude is a huge plus in combating abuse.

The local office of the aging and social service programs can also report on the suitability of an assisted living facility. These governmental agencies are able to do this because they have the insider information that allows them to determine whether or not there are open or pending cases of nursing home abuse.

They can also testify whether any old cases of abuse were handled well internally. Nursing homes and assisted living facilities that have a good clean record usually come with a higher price tag. It’s unfortunate that our elder care is based on assets and income, however, most assisted living facilities that are higher priced are more careful about their reputation.

It is not uncommon for people to find the need for an assisted living facility to be urgent in nature, and all too often people are willing to place their loved one in a less than par facility because it was the first available bed.

Without due diligence, you have no idea whether or not your loved one is at risk for falling victim to nursing home abuse. Choosing an assisted living facility based entirely on availability is often the one way to ensure that your loved one will be at a higher level of risk for nursing home abuse. Check out assisted living facilities carefully before signing any type of contractual agreement.