Sunny Thompson of Snell & Wilmer provided an overview of recent class action cases and multi-facility litigation at the September DRI Long-Term Care and Senior Living conference.  She provided highlights of several recent cases as well recommendations for risk mitigation strategies.

The first area discussed was class action lawsuits alleging understaffing in long-term care facilities.  Common themes in the allegations:

• Fraud and misrepresentation
• Unfair business practices
• Violations of consumer protection laws
• Elder financial abuse

Many of these cases have been brought by the same group of plaintiff attorneys primarily in California, Arkansas, Florida, North Carolina, and Washington.  They seek high settlements and high plaintiff attorney fees.  The allegations often are “cookie cutter” and it is recommended that providers should mount a vigorous defense.  These factually identical allegations include accepting patients who need higher levels of care, misrepresentations in marketing materials, managers who are driven by personal compensation tied to budgeting targets, and failure to consider individual resident needs related to staffing.  Due to the high expense, both in bad publicity and dollars, many senior living facilities are settling prior to class certification.  However, defense counsel should focus on the individual resident experience to avoid class action status and reduce exposure.

The exorbitant expense and time required in resolving these cases makes risk management efforts of paramount importance.  Risk mitigation in understaffing claims include, but are not limited to:

• Arbitration Agreements with residents that bar class and collective actions
• Robust policies, which are approved by regulatory counsel, concerning the provision of resident care
• Ongoing review of staffing policies and procedures and compliance monitoring of the same
• Avoidance of “overpromising” services or products in marketing materials and residency agreements
• Training of sales staff, front desk staff, and others who interact with potential residents
• Clear understanding of what data is being collected and how it is being used to match care levels to staffing

Ms. Thompson also reviewed the Stiner v. Brookdale Senior Living case which contains understaffing allegations.  Interestingly, the case also contains a novel theory of liability which is that Brookdale’s alleged understaffing violates the Americans with Disabilities Act (ADA) and California’s Civil Rights Act.  Allegations include physical access barriers for persons with disabilities and failure to provide sufficient emergency access plans.  The allegation that Brookdale is violating ADA through alleged understaffing and failure to adequately train staff is noted to be the first of its kind.  Considering the Stiner case, in addition to the mitigation strategies listed above, companies should evaluate their manuals and training programs as they relate to residents with disabilities.  This may help ensure that residents are routinely evaluated to determine if they are in the appropriate room for their mobility needs.

The presentation also reviewed other litigation trends in the senior housing industry.  These trends included “tester” lawsuits asserting fair housing and ADA discrimination claims by potential deaf residents who need American Sign Language interpretation, employee wage and hour class actions, and biometric privacy laws.  The common threads in the mitigation of risk in all of these areas are well-defined policies, procedures, and training of staff.  These policies must be consistently monitored to ensure compliance with federal and state laws and regulations.

Excelas has extensive experience assisting clients in managing claims and litigation in the long-term care setting.  The Excelas Comprehensive Integrated Timeline Tool (CITT) allows clients to incorporate key data with guidelines, regulations, and standards.  The Excelas Staffing Scorecard, Provider of Care Report and Care Calendar/Touch Chart reports allow clients to quickly access the workforce status at the time of an alleged incident.  Contact Excelas today for a demonstration of how these powerful tools can assist counsel in clearly telling the story of the case.