Countering Defenses in Assisted Living Facility Cases
How do assisted living facilities defend themselves after a resident is harmed? Many rely on predictable legal defenses to avoid responsibility for neglect or abuse. Knowing how to challenge these arguments is essential to building a strong case. In this week’s episode, nursing home abuse lawyer Rob Schenk welcomes guest Victoria Schall to discuss effective strategies for countering defenses in assisted living facility cases.
Intro
Schenk:
Assisted living facilities love to remind injured residents that they’re not nursing homes. The question is, does that excuse them from responsibility to keep residents safe? I’m attorney Rob Schenk. This is the Justice for Residents podcast, and this week I’m talking to Victoria Schall, a New Jersey trial attorney who represents victims of abuse in long-term care.
And we’re discussing the defenses assisted living facilities rely on, whether staffing levels still matter in those facilities, and when resident choice becomes less of a defense and more of an excuse. Stick around.
That is an interesting jingle, because my outline that I’m looking at says it, that jingle is supposed to be, quote-unquote, “news broadcast,” which I imagine is kinda like when a, a new show starts or comes back from commercial that’s the intro music. But that sounded more like a, again, like a marching band.
I feel like we’re on a marching band tip recently. So score one against AI this week. We have talked a lot about assisted living facilities on this podcast, so your homework is to go back and listen to just a couple of them. I will highlight a few. So we got episode 108, where we talked about are assisted living facilities regulated, and we did that with Eric Carlson back in 2019.
And then episode 210, kinda s- similar concept, but a little bit more on the recent past in 2024. We talked to Richard Mollet essentially about the same thing. How are these facilities regulated, and how are the regulations different than your typical nursing home? And then we also have from Looks like November of ’24, episode 227, 2-2-7, like the old show.
227, we talked to Parke Morse about what makes assisted living facilities different than nursing home cases. And of course, if you wanna learn more about Tori Schall, Victoria Schall we talked to her on episode 225 about deposing CNAs. So I know I threw a lotta, throw- threw a lot out at you, but there’s a lot to learn.
Guest Intro
Schenk:
So without any further ado, let’s get into the meat and the potatoes of this particular episode. So Victoria Schall is a New Jersey Supreme Court certified civil trial attorney. She has dedicated her career to advocating for the elderly and nursing home residents. She has litigated nursing home abuse and neglect claims since 2010.
Victoria holds a certificate in adult development and aging and has volunteered in various care facilities. She previously served as an elder law staff attorney and is licensed to practice law in New Jersey, Pennsylvania, Virginia, and the District of Columbia, and we are so delighted to have her back on the show talking to us.
Stay updated with educational content and firm news by following Schall at Law on Instagram.
How Do You Overcome “Not a Medical Facility” Defenses?
Schenk:
So Tori, right out of the gates, why, or not why, how are you addressing the argument that an assisted living facility is not a medical facility, it’s not a skilled nursing facility, so you shouldn’t expect very much from them?
Schall:
Yeah. So I think that’s a pretty easy one in, in part because it’s, okay, what services do you provide, right?
And it goes back to the contract. Most assisted livings are governed, m- state regulations only go so far for each of the states whereas, nursing home regulations are pretty lengthy, as you have in your corner there. But yeah, so here’s the deal. It doesn’t mean that, just because they’re not a skilled nursing facility doesn’t mean they’re not providing medical care, right?
They have C- CMAs, so certified medical assistants, they have nurses, so it’s a lum- a lotta LPNs, and maybe they have an RN running around in the entire building. Maybe you get one, maybe not. But at the end of the day, they still have to make sure that they’re taking care of the residents’ needs, right?
They still have to make sure that if they need to go to the hospital, that they put them in touch with a physician. They have to make sure that if they’re at risk of certain issues, that they have to they have to set up a care plan and make sure that they follow those care plan and put into place the interventions that resident needs in order to prevent that from happening.
All of those things are still the same. And so even though they may try to say it’s not a skilled nursing facility,” you’re still providing nursing services. And you still have to also keep people safe, right? And I think that’s the key argument behind it is just because it’s not in a nursing home doesn’t mean you don’t have to keep people safe.
Explore patient safety initiatives for long-term care facilities on the impact of preventive health measures in elderly populations.
Can Staffing Levels Still Establish Negligence in ALFs?
Schenk:
Are you able to, in an assisted living facility case, make- A staffing argument analogous to a nursing home. In other words, if you would have had enough staff, this particular incident would have happened. Would not have happened. Sure.
Schall:
Yeah. So here’s the fun part about assisted livings with the staffing stuff, right?
It goes back to, when you’re talking about nursing homes and staffing, we have all the data, right? We get all of… Because they have to mandatorily report so much data, so we can get that data. We’re not necessarily always getting that data in a, in an assisted living situation. So you’re you rely on, you’re re- A, relying on a lot of what the families are telling you about who’s there, who’s…
It’s a ghost town. They moved us from the regular section into from the regular assisted living into a memory care unit, and in that memory care unit, they said there would be more staff and more supervision, and yet there was less, right? So you twist the y- the, the staffing goes off of specific numbers of what they think they should have and goes towards what do the residents necessarily need and how much was really there.
So when we’re talking about that, I really look more so at, okay, particularly in the memory care unit, which is where the majority of the claims end up happening not as much in the regular assisted living section, but in this memory care unit that they’re claiming they’re getting increased care because you’re paying more money for it and you’re not actually getting that.
For insight into frontline caregiver testimony, listen to Deposing Nursing Home CNAs.
So those people, I want to know how many there are, how many residents are there. I want to know the background of those people. And then what are the needs of the people that are in that memory care unit, right? The, the key thing to me, and I do this in my nursing home cases too, is like, did you have the proper people in order to be able to provide the care that these residents need?
So even if I’m not, I don’t have a great number staffing data situation or if they fudge that and I can’t prove it one way or the other then I’m looking at did you have the right people there, and how many of those did you have? So I recently had a case and where they had an assisted living facility.
They claimed that the janitor was responsible for making sure that residents don’t fall Like I’m sorry, what? What? So I took his deposition, and he was quite shocked to find out that was a part of his job description that was never in his job description. And nor did he feel like he was capable of doing so, had never received training and all those sorts of things.
So I think it goes back to, did you have the right people? Did you have the right numbers of people? And what are they really saying about them having enough people to take care of the residents?
Learn more about assisted living standards and resident care on the impact of preventive health measures in elderly populations.
How Do You Assess Resident Acuity Without MDS Data?
Schenk:
I don’t wanna say anything is easy in this industry. Yeah. But with nurse- with nursing home residents, y- as you mentioned there is an MDS assessment by way of example that you can really hone in resident by resident what their acuity is.
With… and it’s uniform. Every nursing home is gonna have an MDS assessment, so we can get good at it. But every as- I feel like every assisted living facility has a different service plan package. You know- … and so you’re looking at… And that’s how they’re determining what level of care they’re gonna get by this weird probably document that they found on the internet or now created by J- with ChatGPT.
I guess, a- at least in my case is it m- it goes down to perhaps the deposition of the executive director or the administrator to be like, “Okay, if you’ve got a resident that scores this, what does that mean to you?” Is that kind of how you’re… h- how you approach it in a way?
Schall:
So I look at, I look at it more so with the wellness director again and then the initial assessment, right?
So because the initial assessment oftentimes for assisted livings happens at their home, right? Whereas with nursing homes, you’re dealing a lot of times with residents that come in from a hospital setting and are initially start out at sub-acute rehabilitation, right? So they’re not really doing that full-blown…
they do their assessment when the person first comes into the facility, right? But nine times out of ten they’re not rejecting somebody that’s coming in unless they have a stage four wound that’s infected that they need to go back to the hospital for, right? Or if they have really, bad, behavioral issues that, that there’s, worse issues that you gotta handle, right?
Learn about our legal strategy by reading how Schenk Firm approaches nursing home abuse cases.
So I think when it comes to an assisted living, I’m always looking at did they accept somebody at this facility that they never should have accepted in the first place? When we’re talking about the service plans where… because, as, as with the assisted livings and the billing portion of it, like oftentimes they’ll start them out at like the lowest amount if they’re gonna be in the regular section.
Or if they’re in the memory care unit, they’re generally like a level three or four, where they’re needing more and more assistance, which means they’re gonna bill people more for those services, right? And for people in the in a regular assisted living section, oftentimes those assessments that they’re doing in people’s homes are not done well enough to really understand.
They’re maybe spending five, 10 minutes with somebody. They don’t know the full grasp of whether that person really is qualified to come into the facility or should be there. So I, I see a lot of times when somebody’s in an assisted living and, they are… they maybe then do… something happens, right?
Many claims are resolved without trial—learn more about settling a nursing home abuse case outside of court.
And then they do a new assessment of that person, and that’s when they say, “Oh, you know what? You need more supervision. We’re moving you to the memory care unit.” And then they’re not doing any assessments in there because a lot of peop- they’ve got so many issues going on in that department, right?
Or they’re left out in the regular assisted living section and, they just completely fail the person and continue to just take their money.
Schenk:
And tell me then about like who, you hear sometimes in nursing home cases, residents have the right to fall or the residents can, make their own choices and things like that.
How Do You Counter “Resident Choice” as a Defense?
Schenk:
And I feel like because typically the acuity level is lower in assisted living facilities sometimes, that you get more of those type of arguments. The resident has the, h- has stronger rights of self-determination than they would in a nursing home, for example, and therefore it’s their fault that X, Y, and Z happened to them.
D- are you getting that? And how do you address that?
Schall:
Yeah, of course. Of course. I get it. I think the, the bigger issue is it goes back to the same argument that I have in nursing home cases. Did this person have the capacity or should they have been making their own decisions?
Should you have been talking to a child? Should you have been looking into, what, whether they could or should? And frankly, if I have somebody that is completely clear of mind and there’s no issues whatsoever, and they’re saying, “Absolutely not, I’m not using that walker,” or, abs- I want to go out and go to,” I wanna go across the street, right?
And, and then they elope from the facility, and then there’s a problem, and it happens, right? Then, you really have to look at, is that a case that you should be taking based on what their capacity is. But most of the time you have a lot of people, because most people aren’t going to an assisted living facility when they’re completely clear of mind, right?
They’re either having, Because the way that it’s sold, right? The way they, that I see it being sold is you have the continuing care retirement communities where you have the independent living, assisted living, and nursing home all on the same campus, right? And you have the con- the independent living, that’s where you’re gonna have the people that are completely clear of mind, right?
You may have somebody in a nursing home that’s completely clear of mind, but they’re physically needing all the assistance in the world. Most people in an assisted living facility need some sort of assistance with memory care loss. There’s over two hundred different types of dementia that are out there.
Find out who investigates a nursing home abuse case and what agencies may become involved.
And, Alzheimer’s being only one of them, right? And, so it’s having somebody that can recognize what those particular issues are, and then again, staffing your facility to handle those issues. And then making sure that your facility is properly equipped to handle people that have those concerns and issues.
And most of the time they’re not, right? So when you’re gonna sit here and say that person, has, has a right to fall,” it’s the same argument you go back to with a nursing home. Did they have the capacity to know what they were doing, right? Did they make certain choices? Did they say, “I’m not gonna do this”?
Did you care plan for that? Did you talk to their family about it? And what did they have to say about it? And what’s interesting is like in, in assisted livings, they can come up with a risk management agreement. And in the risk management agreement, they can try to protect their own rights, saying, “Hey, look, like we know this person’s doing this.
And you know this person’s doing this. If you keep him here without getting another person to come in and provide one-on-one assistance, then that’s on you, right? Then you’re taking the known risk of that particular situation.” Good example in the past that I had was in a, an elopement case in assisted living where they knew that the gentleman had grown up being, or had been a, a pharmacist.
Understand what legally constitutes nursing home abuse under Georgia law.
His whole life had been a pharmacist. And across the street on this like five-lane road from the assisted living, it’s literally right there off this five-lane road, where it comes on and off of a major highway exit ramp is a pharmacy. So my guy used to like to go and hang out in the pharmacy because he was the local pharmacist that, spoke to kids and, engaged in the community, and that was his role.
He loved being there. But he had a version of dementia. And so instead of setting the facility up in a way, he just continued to like walk out the front door, and either people weren’t there, they didn’t have the right staff, they didn’t, make sure that he should’ve been probably on a lockdown unit.
Legal distinctions between facility types are discussed in What Makes Assisted Living Facility Cases Different.
And, or to have supervision. They addressed it with the family, right? Saying, “Hey, look, you know your dad’s doing this.” The family ended up getting like a, an alert, right? So that if, if he did purchase things, so if he went over to the pharmacy and purchased something, they would know that he was there.
And what ended up happening eventually was he they said, “Look we’re cool with him going to the pharmacy. We don’t wanna stop him from doing that, but he can’t go by himself.” So they had these like shuttle car services that they said that they would use, and that was never done, right? So it’s one of these things of like who knows what, who’s trying to prevent these situations from happening, and again, based on a care plan that should be put into place to try to prevent it from happening. That could be an intervention, right? “If Mr. Wants to go to the pharmacy across the street, please use the car to the shuttle service,” right? They could have that in a care plan. The problem is they’re not individualizing their care plans, and you know they’re not really doing it in nursing homes anyway, let alone doing it in an assisted living facility.
It’s not happening. And in that situation, the state cited that facility for not having a risk management agreement.
Families can recognize warning signs by reviewing how to tell if your loved one is being neglected or abused.
Schenk:
Wow.
Schall:
So mitigate your own risks, and that was part of what they failed to do. So in that particular situation, he went across the street and he got, he was struck by a car and then the rest ensued at that point in time.
So yeah, I think it makes for great claims because they know and the main thing about an assisted living is more so safety than anything else.
Question of the Week
Schenk:
I interrupt this interview to bring you the nursing home regulation question of the week. This week, difficulty is medium. That means that if you get this correctly, you are in charge of the AC, and you get to run it at any temperature that you want, as long as it’s actually running.
If you’re the person in the house that’s like the hot person, like you don’t want the AC on, you don’t get, you don’t get this prize. You don’t get a treat this week, okay? I’m talking about the people that are like me, that it has to be on Fahrenheit 66 or 67 all year round. That’s me, okay? So if you get this right, you get control of the AC, whatever temperature you want
Under 42 CFR 483.90e1, each resident bedroom must, A, be located at least 20 feet from a nurse station, B, have direct access to an exit corridor, or C, have at least two windows
And that answer is B, every nursing home resident must have a bedroom that has direct access to an exit corridor, which is usually a hallway that leads out of the facility.
Schenk:
It sounds to me like it’s second verse, same as the first verse, as you mentioned. Yeah. It’s, just because it’s an ALF doesn’t mean that they don’t have to plan, they don’t have to implement, they don’t have to revise.
It’s the sa- … it’s the same process, it’s the same attacks you would in a nursing home.
Schall:
And specifically in New Jersey, Rob, there is when it comes to who they should have in their facility, there’s specific listings as to, how many activities of daily living a person can have or should have if they’re getting services in that facility, right?
Re- regulation-wise, that’s there too. I also have a case where, they took a woman in that they just shouldn’t have taken in because she needed too much help, and they should have just said, “Look she needs too much help. She needs skilled nursing care. We’re not gonna be able to meet those needs.”
And they chose not to do that.
How Are Assisted Living Cases Similar to Nursing Home Cases?
Schenk:
That’s one of the things that, that I often investigate first as a threshold matter in my assisted living facility cases, because in Georgia there’s four or five criteria of who can be who qualifies- … for assisted living, and it’s even more for personal care homes, which is a, a step down from that.
For example- … one of them is that you have to at least be self-ambulatory. That even if you’re in a wheelchair, you should be able to, you should be able to ambulate in that wheelchair because ultimately, I think at least for our regulation, is that they’re trying to prevent some kind of catastrophic…
If there’s a fire, everybody should be able to get out on that- Oh, yeah. Yeah … which is almost never the case. So a lot of- Yeah … the times, as you mentioned, in my cases, it’s like this happened and it was bad and, but they never should have been there in the first place because they didn’t meet the threshold.
Schall:
Yeah.
Are There Any New Defenses in ALF Cases?
Schenk:
Okay, so in the last couple minutes, Tori, tell me about is there anything that you’ve seen in the past, maybe lately or in the past couple years, in terms of defenses that you hadn’t seen before in assisted living facility cases?
Schall:
Sadly, Rob, no.
Schenk:
I don’t know if that’s good or bad, yeah
Schall:
the same game. And I think it’s just paying attention to it, right? I think it’s recognizing what that looks like. I think for me, having had the background in volunteering in facilities, in nursing homes, in assisted livings, in retirement communities, I see, I’ve seen what this looks like from a ground perspective, right?
So I understand what’s going on here, and I think to me, sometimes the assisted living situations are even more offensive because people are shelling out, tens of- Thousands, yeah … thousands of dollars each month, you know, thinking that their loved one is safe, and they’re not, right? So we’re not talking about government insurance reliance on for paying for services.
Families comparing care options can listen to Episode 210: Assisted Living Facilities – Understanding Long-Term Care Options.
We’re talking about people’s hard-earned money that they’ve earned over their lifetime, that they’re now shelling out for promises that are made and broken promises that end up happening. And for simple things sometimes, where it’s like, particularly elopement cases, where you have the door that’s propped on the lockdown unit, right?
Because that’s where they go out to go smoke. Or, the, the alarm was broken, and we just didn’t fix it. Simple, like simple things, right? And I think that, to me, assisted livings are just… some- sometimes they’re more shocking than not. And frankly I don’t know, outside of the, the couple of defenses that you’ve brought up, which is, it’s not a medical facility, it’s a different standard of care, it’s a, resident choice.
I think it, it really goes back to, Yeah. I- the same defenses that we see in every case, which is aw- awful to say, but it’s always the, “They were old and gonna die anyway,” right? “What did you want us to do?” “This isn’t a nursing home.” But I think it goes back to the same thing we talked about.
Learn what services residents can expect in What Is Assisted Living Care?.
Why Is Public Confusion About ALFs a Problem?
Schenk:
I think that at least in Georgi- Thank you. That was very well said. I think that in Georgia It really, there is a lot, and maybe in New Jersey too, there is an extreme amount of confusion among the public about what happens in these places, right? Yeah, definitely. So I’ll get calls every day, and this probably happens to you too, is like my mother was in a nursing home,” blah, blah, blah, and I’m on the little, on my computer looking up very quickly as I’m talking to them.
I’m like, “This is a personal care home.” Yeah. This is not a nursing home. Did you think this was a nursing home?” They have no idea. And they’re like, “Do you know what they were s- do you know how they were taking care?” Yeah, the nurses all said in Georgia, personal care home, they can’t have nurses.”
If they’re telling- … their nurses they have to take their nurse hat off. I had a, and I’ve mentioned this on the podcast before, but I had a case against a personal care home where I filed the complaint as ordinary negligence ’cause in Georgia they can’t provide medical care, so I didn’t provi- I didn’t make a professional claim.
Regulatory requirements are explained in Episode 108: Are Assisted Living Facilities Regulated?.
Okay. And I got a motion to dismiss to the extent that there would be professional negligence. And I’m like, “Okay if you’re saying that you got professionals, I filed an affidavit to make a professional- Absolutely … affidavit claim,” and they filed an opposing motion to themselves- … to say that they to say they can’t give medical care.
So I had, I, and the case settled before the judge. I didn’t have to do anything. They literally filed a motion to say, “You should have made a professional claim and you didn’t, so you’re out.” And then, you know-
Schall:
Had to
Schenk:
backtrack
Schall:
on that,
Schenk:
right? Yeah. ‘Cause they don’t wanna- Not that you-
go down
Schall:
that road either,
Schenk:
right? Yeah, not that you filed a professional claim, we’re filing a motion to dismiss on. I didn’t have to brief anything. Anyway. So- … I guess all that being said, no b- n- the public doesn’t know what’s happening in these places, and they should become more aware. But Tori you’re the best.
Oh, thank you. I really appreciate you coming back on the podcast and sharing your- Always … knowledge with us. Always happy to, Rob. Thank you so much for having me. Appreciate it. Awesome. Folks, I hope that you found this episode enjoyable, informative. If you have an idea for a guest that you would like for me to talk to, let me know that.
If you have an idea for a topic that you would like for me to talk about, let me know that as well. New episodes, for the time being, of the Justice for Residents podcast come out every single Monday. And with that, folks, we’ll see you next time.
Thanks for tuning in to the Justice for Residents podcast. Nothing said on this podcast, either by the host or the guest, should be construed as legal or medical advice, nor is intended to create an attorney-client relationship between the lis tener and either the host or any guest. New episodes are published every Monday and are available on all your favorite podcast apps, as well as on YouTube and our website, justiceforresidents.com.
Again, that’s justiceforresidents.com. The Justice for Residents podcast is hosted by Rob Schenk, a trial lawyer representing victims of nursing home abuse and neglect throughout the state of Georgia. We’ll see you next Monday.