Friday Feature: Senior Living Litigation Watch: Risks at CCRCs/Independent Living

Among the many topical areas I watch in health care, I pay particular attention to liability and litigation. As frequent readers/followers know, my firm, H2 Healthcare, LLC, focuses a practice area on clinical compliance and litigation support. My wife and the firm’s Senior Partner is one of the foremost experts (nationally) in litigation support and clinical compliance in senior living and post-acute care.

Most attention in the litigation area when it comes to senior living is on nursing homes plus now, a growing focus on assisted living. I’ve written before about COVID litigation and how it is on the rise nationally (https://rhislop3.com/2023/10/16/sr-living-litigation-and-covid-implications/). I’ve also written posts across the years of this site (approaching fifteen now), on litigation specific to staffing issues, assisted living, and on core contributing factors to litigation.  An oldie but a goodie from 2018 on quality, compliance, and risk management is here: https://rhislop3.com/2018/11/16/the-real-impacts-of-poor-quality-inadequate-compliance-and-weak-risk-management/

Just the other day, I read about an Independent Living case coming out of the State of Washington.  It involved a 96 year old man who resided in an independent living section of a retirement community.

The man, known to have Alzheimer’s disease, had lived in the Independent Living section since 2017 until his death in December of 2022.  He died from hypothermia after leaving the building after the door locked behind him. He fell into a snowbank and was found by a snowplow driver.  

Most of the incident had to do with miscommunication between a hospital that he went to the same day for a health concern and the facility he was living at.  He was discharged back to the facility but arrived at the SNF where staff did not know him. Ultimately, the employee misdirected the gentleman, he became confused as to his whereabouts, causing him to exit the building.  A local newspaper article on the event is here: https://www.chronline.com/stories/family-sues-washington-senior-living-center-for-negligence-in-mans-death,329726

What caught my attention was the age of the resident and his health condition, seemingly on the surface, rather precarious for an independent living placement.

The risk that is present and growing for CCRCs and Independent Living communities is simply termed, acuity creep or in other words, too much aging in-place.  Residents enter communities generally capable of meeting substantially all of their own health needs or accessing care independently.  As time passes and advancing chronicity or changes in mental acuity (negative) set in, the resident requires more interventions and more care which, may not be accessible in the independent environment. As average age on entry to these communities has steadily crept higher, the fragility of residents and the present of numerous chronic conditions has come with the admission to the facility.

The same has been true for assisted living as facilities seek to bolster census, especially hard hit during COVID, by admitting residents with more complex care needs.  As the primary purpose of assisted living is to provide ADL (activities of daily living) support and assistance, the infrastructure for more direct skilled nursing and therapy care typically isn’t present or is coordinated through contractors (home health agencies for example). With staffing challenges, facilities may find it difficult to employ enough nursing hours (RN, LPN) to meet more complex resident care needs. A good article on the subject of acuity creep in assisted living is here: https://www.wtwco.com/en-us/insights/2023/03/the-risky-business-of-acuity-creep-in-assisted-living

For Independent Living communities and CCRCs, a significant contributor to litigation risk concerning acuity creep and methods to prevent too much care needs on admission is the Fair Housing Act. The FHA prohibits inquiry into disability or the extent of disability unless the facility is only for people with disabilities and the inquiry is needed to make sure the applicant meets the requirement.  In that case, the inquiry must be made of all applicants. 

Residents moving into a CCRC cannot be required to waive rights under the FHA, such as letting the facility determine what level of care they will live in or whether, they meet other residency requirements.  Such provisions or conditions are not permitted under the Fair Housing Act.

The Act further allows residents to age in-place provided the accommodations needed can be reasonably met or, executed by the resident.  For example, a resident in need of additional care can employ caregivers to meet his/her needs. § 3604(f)(3) of the Act provides that facilities,

1.  Must permit reasonable physical modifications at resident’s expense.
2.  Must make reasonable accommodations in housing rules and policies.
3.  Must include accessibility features in the design and construction of new (after 1991) multifamily dwellings.

The HUD (Housing and Urban Development) page for the Fair Housing Act is here: https://www.hud.gov/program_offices/fair_housing_equal_opp/fair_housing_act_overview

In April of this year, the Department of Justice settled a HUD related case that required reasonable accommodation policies applicable to eight CCRCs. At these locations, residents have access to a continuum of health care, including residential living, assisted living, and skilled nursing care.   

The case involved an elderly woman with progressive memory loss requiring additional assistance.  The events happened during COVID.

The complaint alleged that after years of living in her own apartment, the CCRC threatened to evict the woman needed assistance with activities of daily living. Her son insisted on staying with her—beginning in March 2020—to provide her care and support during the pandemic, when the CCRC barred family, friends and private caregivers from resident interaction. The case is detailed here: https://www.relmanlaw.com/news-474

In Monday’s post, I’ll cover steps organizations can take to minimize risks associated with advancing resident care needs and from the provisions found under the Fair Housing Act that don’t theoretically, allow residents to be medically screened prior to community entry or allow communities to move residents from Independent Living settings as care needs advance.

Oh, and before I forget, TGIF!