Tuesday, September 12, 2017
We often write on this Blog about concerns or even scandals in "nursing home" care for seniors. But, increasingly senior care spans a wide spectrum of formats and identities, and the SNFs of old, both good and bad, are increasingly outnumbered by newer names. "Assisted Living" facilities -- traditionally positioned somewhere between skilled care and independent living -- are now often the target of concerns and lawsuits.
Reading the complaint in the latest suit, a class action filed in federal court in July 2017 in California against Brookdale Senior Living Inc. and Brookdale Senior Living Communities, Inc., I can see a central frustration, regardless of any issue of poor or negligent care. Brookdale is one of the largest, if not the largest providers of assisted living, especially after it acquired another large assisted living operator, Emeritus. The named individual plaintiffs, who describe their extensive impairments, including physical and mental disabilities, also describe their expectations about receiving appropriate care in "assisted living" at an affordable rate. They allege, for example:
Assisted Living facilities are intended to provide a level of care appropriate for those who are unable to live by themselves but who do not have medical conditions requiring more extensive nursing care.
In recent years, [Defendant] has increasingly been accepting and retaining more residents with conditions and care needs that were once handled almost exclusively in skilled nursing facilities. This has allowed [Defendant] to increase not only the potential resident pool but also the amounts of money charged to residents and/or their family members.
The plaintiffs complain that rates charged, alleged to range between "approximately $4,000 to $10,000 per person per month," increased at a rate of 6% to 7% percent per year in each of the last two years, at the same time that staffing levels dropped to a critical, allegedly unsafe level.
At the core of the complaint is the frustration that residents are not being provided the services they need. The legal theories include violation of the Americans with Disabilities Act, state civil rights and consumer protection laws, unfair trade practices laws, and California's Elder Financial Abuse laws, all leading to what I see as a fundamental question:
Can Assisted Living operators be held liable for failure to provide skilled care to residents they allegedly "know" need such care, or is the less-than-skilled label and license to operate a defense against such liability?
The Brookdale defendants deny the allegations of fault. For more, see Largest Assisted Living Chain in U.S. Sued for Poor Care of Elderly from California Healthline.