Assisted Living Challenges Lead to Rise in Litigation

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As the number of assisted living facilities increases to accommodate the aging population, so too have the number of related claims and lawsuits. But are the issues that serve as the basis for these actions against assisted living facilities the same as those against the more traditional skilled nursing facilities? The plaintiff’s bar would like the public to think so, with their motivations being recent multi-million-dollar verdicts against assisted living facilities and claims which can average 20% more than those in a skilled nursing facility (CNA Aging Services 2018 Claim Report.)

Review of Long-term Care Settings

A review of the differences in the types of long-term care facilities can serve as a basis for managing claims and litigation. Care settings are broadly categorized as skilled nursing, assisted living and independent living facilities, with the following characteristics:

Skilled nursing facilities provide a high level of medical care to patients who are unable to live on their own either due to physical or cognitive impairments. SNFs are staffed by licensed health professionals. This includes, but is not limited to, registered nurses, physical and occupational therapists, social workers, pharmacy services, radiology services, and dental services. These facilities are regulated by Medicare and Medicaid, and surveys are conducted on an annual basis to determine compliance with standards. Claims and litigation typically focus on these standards of care.

Assisted living facilities provide care for individuals who do not have high-level medical needs but need support with activities of daily living. ALFs have 24-hour staff on duty to provide personal care services including dressing, bathing, laundry, meals, medication management, and recreation/social opportunities. Most ALF residents have private, apartment-type units affording some autonomy. The majority of assisted living facilities are for-profit and only accept private pay. Just 16% accept varying types of Medicare and Medicaid payments.

Regulations of assisted living differ on a state-by-state basis. Assisted living communities should have standard admission and discharge criteria to ensure a resident is receiving the appropriate level of care. Once admitted, a specific service plan should be initiated which is altered as the resident’s needs change. Many assisted living residents are able to “age in place” whereby additional services, such as home health or hospice, may be provided at the facility to avoid a move to skilled nursing. The variations in state requirements, along with the introduction of outside service providers into the facility, create a different set of claim and litigation circumstances than in the skilled nursing model.

Independent living communities provide a community setting with minimal assistance to seniors. Usually apartments or free-standing homes, these types of communities offer activities, meals and transportation for the convenience of the residents. Medical care needed is contracted separately by each resident. These facilities do not typically fall under any state or federal regulations. However, if they are a part of a “continuing care” campus, the facility must be clear as to expected service levels. Independent living facilities are subject to claims and lawsuits related to transportation, lax security, and falls on the premises.

Assisted Living Claim Statistics

According to the National Center for Health Statistics, in 2019 there are 28,900 assisted living facilities and 15,600 nursing homes in the Unites States. Assisted living facilities accounted for 16% of the total number of long-term care claims with an average of $221,496 paid per claim. The number of skilled nursing facilities is declining, while the assisted living market continues to expand.

The 2018 CNA report revealed that in fall-related claims, which are the costliest, 22.8% are made against assisted living facilities. The average payment is $224,300, or $36,526 more than a fall in skilled nursing. The report also notes that over 75% of claims are associated with for-profit organizations and those claims average a higher payout than not-for-profit facilities. Assisted living claims topped the list of the highest indemnity payments. This increase of assisted living claim payouts, lack of a consistent regulatory structure, and predominance of the for-profit business model attracts plaintiff counsel to bring creative actions against assisted living facilities.

How Excelas Can Help

The rising trends in the senior population, the number and value of cases, along with the sometimes-blurred lines between facility type, dictate that an in-depth knowledge of the issues facing long-term care is essential in mitigating liability. Excelas’ extensive experience in record review provides expertise concerning the different and evolving requirements in each type of care setting. Use the contact us form below to talk to someone about how we can help your organization.

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