Assisted living facilities (ALFs) were designed to provide homes for people as they aged. In terms of the amount of care they provide, they sit between Independent Living Facilities, where no care is provided, and Nursing Homes, where extensive care is provided.
Assisted Living Facilities are only allowed to accept patients who need very limited care or no care at all. These include individuals who would be able to live independently but may need very limited assistance with things like taking their daily medications.
Most assisted living facilities claim to provide the following services to their residents.
These are services that are traditionally provided by nursing homes.
Nursing homes are highly regulated by the state and federal governments. They are required to comply with the Federal Nursing Home Reform Act. These laws were first created in 1987 because there was rampant abuse and neglect occurring in nursing homes. These laws set minimum standards that nursing homes must follow.
Unlike nursing homes, assisted living facilities are not required to follow these rules and regulations. The federal regulations that apply to nursing do not apply to assisted living facilities. Many states regulate assisted living facilities. However, those regulations vary from state to state and are often not very strong and require very little of the assisted living facilities.
The reason that there are so few regulations for assisted living facilities is because assisted living facilities are supposed to only accept residents who require no care or very little care. In reality, however, assisted living facilities are accepting the same residents as nursing homes. This is dangerous and illegal.
The number of assisted living facilities has exploded over the last two decades. Nearly 1 million residents live in the more than 30,000 assisted living facilities. These numbers are expected to rise. The number of people aged 65 and older grew from 35 million in 2000 (12.4% of the U.S population) to 58 million in 2022 (17.3% of the population). By 2030, 1 in 5 (20%) Americans will be over the age of 65. More than 835,000 Americans reside in assisted living communities.
Assisted living facilities are big business. In an attempt to compete with nursing homes, assisted living facilities are accepting patients who need more care than they can provide. Assisted living facilities often aggressively market their services and recruit potential customers through online advertising. These facilities promise staffing levels or services that they simply cannot provide. These advertisements and marketing materials are often directed toward the children of the elderly who make decisions about their parents’ care.
More and more assisted living facilities are accepting residents with complex medical conditions and care needs that can only be provided in nursing homes. They do this because they have built so many assisted living facilities, there are no longer enough assisted living residents. In order to make money, they accept patients who are only safe in nursing homes.
56% of ALFs in the U.S. are part of a chain. There are around 40 corporations that control nearly all of these facilities in the U.S.
As a marketing scheme to get more residents, assisted living communities are marketing disease-specific programs. These are more marketing than they are additional care. Oftentimes no additional care is provided to these residents.
Below is a breakdown by percentage of assisted living communities that provide disease-specific programs:
Assisted living facilities often are not even the company providing the care they promise. They contract with outside providers to actually provide the nursing care. These services frequently include:
Many of these services are not provided directly by the assisted living facility. They are provided by outside agencies the family may not even be aware of.
The vast majority of care being provided in assisted living facilities is from aides and not nurses. The reason behind this is money. For long term care facilities, the largest individual revenue source is residents (filling beds), and the largest individual expense is the cost of employing nursing staff to provide care to those residents. This creates a financial incentive to take on more residents while reducing the costs of nursing staff. Aides earn much less than nurses.
An injured resident or their family can sue an assisted living facility just as they can a nursing home. The most common reasons that we sue assisted living facilities on behalf of residents and patients are the following:
Abuse, neglect, and overall poor quality of care in assisted living facilities is caused by corporate decisions when they choose to put their own profits over resident safety. Staff shortages combined with long hours results in worker frustration and fatigue. This increases the risk for errors, abuse, and both patient and worker injuries.
Abuse and neglect at assisted living facilities are the result of understaffing and undertraining of staff. Poor care is not as simple as an innocent mistake by a nurse or aide. They are caused by top-down systemic failures. Caregivers are often exploited by their employers. They are underpaid, undertrained, and there simply are not enough of them.
Assisted living facilities have marketing materials that they use to aggressively solicit potential customers. These marketing materials often make lofty promises concerning things like safety, protecting their residents well-being, supervision, promoting a family environment and happiness, and providing the best medical and nursing care available. These are promises the assisted living facility never intended to keep.
Staffing is at the root of most cases of abuse, neglect, or negligence. Errors don’t occur simply because someone is a bad or indifferent aide but because of staff turnover and shortages that make good care impossible. This is a corporate greed and accountability issue, not simply a bad spirited employee.
States have regulations that apply to assisted living facilities. Violating these regulations does not automatically mean you would win an assisted living lawsuit. But they can provide significant evidence that the assisted living facility was negligent.
The federal government created the nursing home bill of rights in 1987. Every resident has the right to:
“a safe and clean . . . living environment” or
“adequate and appropriate medical treatment and nursing care and to other ancillary services that comprise necessary and appropriate care consistent with the program for which the resident contracted”
Even though assisted living facilities are not nursing homes, many states provide these same rights to assisted living facility residents.
There are numerous guidelines that apply specifically to ALFs. These are becoming increasingly important as ALFs continue to take on patients with higher care needs. For example, the Alzheimer’s Association has published guidelines for how assisted living facilities should care for dementia and Alzheimer’s.
The American Geriatrics Society Position Paper on Assisted Living lays out requirements for staff knowledge and skills needed to competently provide care for older adults. This includes signs of condition change, risk for falls, depression, and other common concerns. Similarly, the Scope and Standards of Assisted Living Nursing Practice formulated by the American Assisted Living Nurses Association outlines requirements of care, integrity, education, and assessment for nurses working in the assisted living environment.
If an assisted living facility takes on residents they cannot properly care for, they are negligent. Similarly, if they accept a resident and that resident’s condition changes while they are there, then the facility is required to send them to a nursing home. If they do not do this, they are negligent.
Assisted living facilities can be sued for violating residents rights laws. Residents have numerous rights. Some of those rights that can form the basis of a lawsuit include violating the rights to:
“a safe and clean . . . living environment” or
“adequate and appropriate medical treatment and nursing care and to other ancillary services that comprise necessary and appropriate care consistent with the program for which the resident contracted”
Assisted living facilities require their residents, or their residents’ family members, to sign an agreement when they are admitted. This is a contract. If an assisted living facility fails to provide the services identified in the resident agreement, they can be sued for breach of contract.
Fraud occurs when a company engages in a dishonest practice and those dishonest practices cause harm. Assisted living facilities often have marketing materials that make promises about the care they can provide. Assisted living facilities often make promises that they cannot keep. If the facility made promises to the resident or family directly or in their marketing materials and knew they would not be able to fulfill those promises, they can be sued for fraud.
If an assisted living facility’s abuse, neglect, or negligence causes a resident’s death, then the family of the resident can file a wrongful death claim.
Several class action lawsuits have been filed across the country based on understaffing practices. The basis for these lawsuits is that assisted living facilities direct funds directly to the owners that should be used for resident care.
