Litigation Risk and Assisted Living Facilities

As I mentioned in the prior two posts, litigation activity is on the increase, post-COVID, and some of the most fertile ground for plaintiff’s counsel is Assisted Living. SNFs are still as targeted but as stays decrease and facilities improve care capability, the trend remains level, for the most part. Where perhaps, Assisted Living and Independent Living were in the background, today that trend is changed.

Assisted Living’s litigation fertility is born from a number of conditions. Each of these play an interdependent role in “why” litigation is on the increase.

  • Capacity in many markets is greater than supply of appropriate residents. The industry-wide view for years was “build it and they will come”. The reality is that Assisted Living is by origin, a fairly narrow market need. Its original purpose was to take a resident that was basically independent once, ADL assistance was provided. Either via cognitive declines or physical frailty, the care needs of the resident were such that active engagement of professional level nursing was not required and should the same be required, the resident moved to a nursing home. The demographic today, however, is quite a bit different.
    • For year-end 2022 and the last calendar quarter, Assisted Living occupancy averaged 80.7%, just a tad better than SNF occupancy. Performance and cash flow return for facilities is above this level – generally 85% and above, depending on the size of the facility and whether the same is free-standing or part of a CCRC (source: NICmap).  4Q22-NIC-MAP-Market-Fundamentals-PDF
    • When occupancy lags, the challenge is to maximize occupancy and the two options are to maintain existing residents as long as possible (even perhaps where the same is unwarranted) and/or to admit new residents.  The challenge with admission is that all facilities in a given area likely are chasing the same residents and as is the case with Assisted Living, financial qualification may be difficult.  Costs today for private units plus care can run proximal to SNFs.
  • As facilities seek incremental census gains, the push to admit residents that may not be appropriate for the setting by need or to maintain residents not appropriate for the setting increases the risk of negative outcomes and thus, the risk of litigation.  All too often, facilities may increase care acuity and need within the resident population without matching by staff level and service competency/capacity.  This gap between the care needs of residents and the ability of the staff to meet such needs is a certain risk area for poor care and thus, litigation.
  • As facilities seek to maintain residents in-place, the use of outside agency resources to do so further heightens litigation risk.  For example, the introduction of hospice to maintain terminally ill residents may seem like a good idea yet, if the Assisted Living Facility is not fully aware of each provider’s responsibility for what care needs, residents can “fall through the cracks” in terms of service.  The same is true with Home Health services for skilled rehab or nursing care.

Diane Hislop, RN, Sr. Partner at H2 Healthcare, LLC and head of the compliance practice, identifies some of the key perils she has seen in her practice.  Ms. Hislop’s work also focuses on litigation (defense) on a forensic and expert witness level. “I see facilities admitting and maintaining, more challenging residents with growing diversity in care needs.  If the facility is prepared for such residents by staff number and skill plus other service support (nutrition, therapy, social services, etc.), fine but, often the facility may not have such resources.  The regulations don’t require the same levels of staff as an SNF yet, the resident may be borderline, SNF appropriate”.

Per Ms. Hislop, facilities need to borrow or utilize, many SNF tools and standards, even if not required by regulation, if they intend to take care of more complex residents.  Even without requirements, best practices standards are what facilities should follow, by care needs of residents Hislop said. “The litigation I see is less about what is required and more about what residents needed and did the facility provide the requisite standard of care”.

Ms. Hislop stated that the tricky part of Assisted Living care centers around the goal of maximizing independence for the resident and choice.  Often, families and physicians and extenders, don’t understand the industry standards and are quick to want unwarranted and improper interventions. “Restraints, chemical and physical, are the hardest to explain to families and practitioners, especially when residents are a fall risk.  Things like side rails on beds, bed and chair alarms, forcing residents to sit in certain areas for observation are all in the ‘restraint’ realm.  Families simply don’t grasp this and can run to the ‘facility did not do enough to stop my loved one from falling accusation’.  Sadly, I see practitioners (doctors, NPs, etc.) who facilitate the misunderstanding.  Maximum choice, even for residents with cognitive impairment along with maximum freedom, is the standard.  The difficulty is that the same, allowing the resident as much choice and independence as possible, opens the door for increased bad outcome risk.  The hallmark in U.S. healthcare is that the individual has the right to make his/her own decisions (under most circumstances) even if the same, are ill-advised or perhaps, poor choices”.

Another litigation area Ms. Hislop noted was when other providers such as hospice or home health are integrated into the Assisted Living facility. “I have cases where the litigation is about a bad outcome, an alleged wrongful death and there are two parties involved – for example, a hospice and the Assisted Living facility.  Both have a part of the issue as each, had a distinct requirement of service and as is often the case, one assumed the other would take care of the issue.  For example, a hospice not getting pain control in-place as the resident was dying and being symptomatic.  The Assisted Living facility has basically a role as room and board and to provide meals, administer certain medications, and to update the hospice.  It is the hospice’s duty however, to put the plan in-place to provide for the terminal care needs of the resident and that includes, medication related to the terminal diagnoses.  Delays in care can be problematic”.

Below are Diane Hislop’s key recommendations as the same pertain to litigation risk in Assisted Living facilities.  It was great getting her expert input for this post!

  1. Have clear admission standards and discharge standards for the facility and make families and residents aware of the same.  Only take care of the residents the facility can safely manage by resources.
  2. Use best practice tools and standards for resident care even if the same are not required.  Some are on this blog but others, can be easily found (e.g., fall programs, fall investigations, cognitive assessments, etc.).  
  3. Utilize only a handful of outside resources or fewer if possible.  If the facility is going to offer hospice to residents, pick and partner with a certain agency.  This is possible.  The same is true with home health.  In this regard, the providers can develop a working relationship and a solid interface plan as to “who does what, is responsible for what”.
  4. Educate, educate, educate, staff and families on what is possible in an Assisted Living facility and what is not.
  5. Make sure staff have competencies, tested and trained no less than annually, in key care approaches and delivery, consistent with resident needs.  Don’t short-cut this step with agency staff either and certainly, don’t hustle new staff into roles where they are unprepared for the care needs of residents.