What Makes Assisted Living Facility Cases Different?
Are assisted living facilities really safer than nursing homes? Uncover the surprising legal differences and challenges that come with cases involving assisted living facilities. In this week’s episode, nursing home abuse lawyer Rob Schenk welcomes guest Parke Morris, Esq. to discuss the intricacies of litigating cases in assisted living settings and how they differ from typical nursing home cases.
Schenk:
What makes assisted living facility cases different? Stick around.
Hello out there. Welcome back to the nursing home abuse podcast. My name is Rob. I will be your host for this episode. This week we are talking about assisted living. What are assisted living facilities? Who are the residents there? Who are the staff there? And what makes these cases different from your typical nursing home?
Case, but we’re not doing that alone. We have the fantastic trial attorney, Park Morris up in Tennessee with us today to get his perspective on assisted living facilities.
Again, we’re going to be talking about assisted living facilities, ALFs. But we’re not doing that alone. We have the trial attorney, Park Morris, with us. Park Morris, a former defense lawyer and appellate clerk, now represents families and individuals With catastrophic injury claims, focusing on a long term care industry for over 20 years, he has handled numerous cases involving stage four pressure injuries, severe dehydration, sex assault, elopement, mystery injuries, and medication errors, and often encountering falsified or missing charts, a national lecturer on nursing home and assisted living malpractice park enjoys tennis and spending time with his children and patient wife. And we’re so happy to have him on the show. Park, welcome to the show.
Morris:
Hey, thanks for having me on. I appreciate it.
What is assisted living?
Schenk:
And I’ve mentioned this in previous episodes, but this is, it’s a, it’s an issue that I like to have a continuous discussion about. And that is a lot of times a potential client or a client will call me and say my loved one was in a nursing home and they were injured.
And then you look by the name of the facility and you realize it’s not a nursing home. It is either an assisted living facility or depending on what state you are, it’s a personal care home or a resident home, something other than a nursing home and that to me, this is just, it’s just a dangerous thing that this, that the public at large in their brain, everything is a nursing home.
So I wanted to have you on today because you’ve got boatloads of expertise in this is we need to talk about. what assisted living facilities are. And I know it varies from state to state, but in general, what assisted living facilities are and why they’re different from nursing homes and what makes those cases different.
So the kind of the first question I want to throw to you is what is assisted living? What does that mean to say that there’s an assisted living facility?
Morris:
I think that if you look at the foundational definitions of what I’m going to use the term ALF, but that’s okay, just because it takes a little bit longer to say it out.
But the first thing that you want to look at is, and this is the sort of the essential test that they put over anyone who’s thinking about coming into an ALF is can they evacuate? From the building under their own power. And so that right there is a demarcation line that separates out someone who is bed bound for instance, and is going to need a lot of assistance just with just getting out of the building.
So it’s almost from a fire code perspective as one of the foundational ways that you look at it. And secondly, I call ALFs or ALF cases nursing home light which is in general, it’s folks who your classic ALF resident might be someone who had a minor stroke or has the beginning stages of dementia.
And so it’s not able to, or struggles with the ability to dress themselves. May need some assistance. Often where you really see a lot of folks entering the ALF environment is that they need help with their medications for a variety of reasons. And so when I look at one of these cases there’s pros and cons to them in all candor.
ALF cases make up and I don’t really I’ve never met an attorney who just focuses only on assisted living facility cases because you don’t see nearly the volume of them where I’m seeing a lot of phone calls is on financial issues with contract issues where a family’s gotten screwed over and they’ve been billed even though the care has been horrific and they’ve pulled the resident out and this happened to me last week and they continue to be billed by the month for the services or they’ve paid a huge upfront fee but from an injury perspective You don’t see as many ALF cases, and I think that’s partially because it’s private pay.
And so they’re able to hire usually more competent staff than in a nursing home environment. And then secondly, often the people don’t need the level of care. And the care that they are able to receive is so basic that usually the facility can provide. Take care of it’s requested for the majority. But when you see a bed sore case out of an ALF that ought to be a gigantic red flag right there.
Because for one thing, assisted leave facilities are not allowed to accept someone who has a stage three or stage four, pressure injury, which means that it’s got depth to it. That being said, where I tend to and if it’s okay, I’ll go ahead and segment into the next part of that question.
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Who is the typcial assisted living resident?
That’s all right. Sure. Which is where I tend to see these cases arise. And here’s one of the, another foundational question, which I always ask is when I tend to find a successful ALF case, my first question to the family is what in the world was this resident doing, even being allowed to enter the ALF, that facility?
I had a case where it was an elopement case and this is where you see also where the ALF may stretch to be able to. Accept the resident and then once they get into the facility, they’ll improve through therapy or just strengthening a stroke victim. For instance, I had a case where a gentleman was partially paralyzed and was in a wheelchair.
And really, when we first filed the lawsuit, one of our theories is that he should never have even been allowed to enter the facility in the first place for a variety of reasons, including that he just couldn’t, he couldn’t get out of the facility under his own power. But while he was at the facility, He actually got stronger to where he could transfer out of the bed in a wheelchair under his own power.
And we abandoned that theory because at the end of the day, from a pragmatic perspective, we didn’t really feel like that was where the power of the case lay to begin with. And it became an elopement case. Where as his physical prowess increased, his mental situation deteriorated to the point where he really posed a threat to himself.
And so where you’ll see these cases arise often, I’ve found, is where someone, I call it the donut hole, where there’s a missing component when the resident may first arrive, they present in a certain way. And yet they’re not going to qualify as a candidate for the memory care unit. And at most of these ALFs, you’ll see attached to the ALF a memory care unit or an Alzheimer’s locked unit.
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And those portions of the ALF are actually highly regulated and you’ll see those locked units also attached to a nursing home. And so those are much more regulated and that really is the equivalent of a nursing home. But in that interim timeframe where they pose a threat to themselves from a mental perspective.
where they have advancing dementia, but they don’t quite qualify for the Alzheimer’s lock unit. And there are certain threshold requirements to get into one of those lock units. That’s where, that’s I call the donut hole, that’s that missing time frame where the facility, the ALF does not want to let go of that private pay patient who may be paying 9, a month, and yet they’re posing a risk to themselves.
And that’s what we had with that elopement case where I ended up taking close to 30 depositions on, witness statements from 11 or 12. to work there. And that was a sad case, but one where the facility was repeatedly warned and knew that he posed a threat of escape. He posed a threat of danger to himself.
He didn’t have adequate staffing and these ALS are not really set up to provide the care that person can.
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How is assisted living different from nursing home care?
Schenk:
So at least in Georgia an assisted living facility is not allowed to provide. Nursing care, direct medical care. Now the individual residents can get private care like they can have their nurses come in, but facility itself.
So I think that when you mentioned the donut hole, I think that’s one of the major problems of this is living is that you have people that are not nurses most of the time. And when they are, when they do have a nurse, it’s like director of clinical services or director of medical or whatever, they don’t have their nurse head on, they’d have their 11, 000, a month resident hat on.
So they’re not doing comprehensive assessments that like you would see in a nursing home. These have you, you have non licensed people. that are unable to understand that an individual is in that donut hall. And I think that’s one of them. What’s one of the, at least the IC, that’s one of the bigger problems.
So tell me then you’re talking about differentiators between the assisted living or the ALF and the nursing home. One of them being the threshold that they must. they must meet to even be in there, right? So one of them is being able to leave if there’s a fire. Talk to me about that. Like what is the, at least in Tennessee where you’re at are there any other threshold admission issues?
Morris:
Really? I gotta tell you, for the most part, these ALS They’re going to take anybody that they can. Now where I’ve seen, I’ve had a couple of cases where someone was in an independent living facility, which then I call it cradle to grave. They had a staggered sort of like single a ball and baseball up to the major leagues, which would be the nursing home and the lock unit.
And I had a case where that, when you’re graduating from independent care over to the assisted living facility. Where I think you need to do your discovery is if there, if you believe that there was a delay and someone entering the ALF or they should have left the ALF moved over the nursing home, what I find is what we find out is that the facility knew that person needed to move from one grade to the next, but they didn’t have an available bed and they didn’t lose.
They didn’t want to lose the person, the resident to a competitor. But I got to tell you, most of my cases they’ll take pretty much anybody as long as they can figure out how to fudge on being able to, leave the facility under your own power. We had a case where they took the position.
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Yes, he wasn’t capable independently of doing so. But since we had a nurse on the night shift or an employee on the night shift, he would have been available if there had been a fire. Since he was he had someone there for 16 hours a day, whose private duty care he qualified. And that of course is not appropriate.
But having actually represented two families in a nursing home fire up in Nashville, which was where 15 people died. I know, O2 how important it is to be able to have that mobility, to be able to get out of the facility in case of a fire. I gotta tell you that is, they are not picky and it was just this last summer we deposed the admissions director.
That was a fascinating deposition when you realize that the bonus of the admissions coordinator was contingent upon how full the facility was. Their utilization rate is what they called it, but at the end of the day, it was how many, Heads are in the bed at midnight and she talked about the growing competitive nature of assisted living facilities.
How there it is, dog eat dog. And when they get ahold of somebody who’s a full pay at nine or more. The client I was talking to earlier this week was paying 13,000 a month. Wow. And yeah. And they don’t wanna let go of these folks because they’re cash cows. Oh yeah. They don’t have to. They don’t have to staff them nearly as heavily as nursing homes.
And once you get in there, they do not want you to leave. So I gotta tell you, I don’t see barriers to entry and they will fudge and push the boundaries on minimal requirements.
Who are the staff at assisted living facilities?
Schenk:
What is the so you got these people that are, they’re just pushing them in as fast as you can because they’re worth so much money, but who in your experience, who is the typical individual, who is the care provider, the care professional that gets the individual out of bed, puts them in the wheelchair make sure that, that if they need help toileting or help showering, doing that, like who is that person in your experience?
Morris:
It’s been someone who has worked in a nursing home environment and they’ve been overworked, underpaid. They’ve normally had, what I have found is that these are the better nursing home employees who like the ALF experience, their CNAs, who are maybe getting a bump in pay and that they find that the staffing is generally not nearly as involved.
That’s what I’m finding. In other words, in all candor, I’m finding in general that the quality that we saw a decrease in this during COVID, but the quality of the individual providing the care. And the ALF environment generally is better because it’s private pay. And so they can afford above or they can be more competitive on the hourly rate.
So having done nursing homework for over 20 years and having handled, I generally have at least one open ALF file pretty much at all times. I just find the quality of the employees in general to be better. What I’m starting to see is. A minor league component to ALFs. And what I mean by that is in the past, they were all sort of premium, high dollar, high brow, upper middle class families who had their loved ones at these ALFs, now you’re starting to see five and 6, 000 a month ALFs spring up.
And the positive here in Tennessee, you’re actually in state court. You’re not able to discover. The amount of insurance that a company carries or an individual carries for that matter. It’s not discoverable in Tennessee, one of the few states that’s like that. But the upside when you sue an ALF is that they tend to have adequate insurance, and they don’t have an issue with their aggregate insurance tapped out because there’s just so many claims.
So I like these ALF cases because I don’t have to worry about a bankruptcy usually, which you see all the time in the nursing home environment, or 20 claims made on a 3 million aggregate, I took 30 depositions in this case, I gotta tell you, I was actually somewhat impressed with the sophistication level and many of the, and there were nurses who were employed there, but many of the staff were very candid with us, yes, we thought that the plaintiff was, had the mentality of a three year old and We told management that he’s not appropriate candidate to stay here.
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And yes, we were constantly redirecting him and yes, we were worried about him escaping. And yes, we told management about that. And I got to tell you these elopement cases, I’ve seen several have crossed my desk recently. And one of the things that when we work up one of those cases I generally tend to draw a concentric one mile ring around the facility and deploy my private investigator And it’s shocking how often if you go talk to local business owners or anybody who has a business anywhere close to the A.L. F. They will tell you. Oh, yeah, we used to have residents who clearly had some dementia issues. He would just show up inside our, my business. We’d have to call the facility and have him brought back in. These elopement cases are potentially very powerful and they are classic cases.
They highlight all of the deficiencies of an A. L. F. Which is They’re not staffed to take care of someone. And then the question becomes when you have it, when you have a locked unit, that’s literally across the hall, why didn’t you recognize the need? And inevitably the answer is we didn’t have room at the end over there and we didn’t want to lose the pay.
Schenk:
So the so from a broad standpoint in a typical nursing home case, when you’re making an understaffing argument, you can grab the acuity of the residents using the MDS and then crunch your numbers with your little calculator and figure out here’s typically the amount of staff you’re going to need.
You can’t do that with an assisted living facility because there are no MDSs. So can you walk us through what are some of the strategies that you use in an ALF case to a figure out what the quote unquote acuity level is of the staff and then trying to figure out either through your experts or whoever how much stuff they should have.
Morris:
All right so so Tennessee’s a little bit different and I gotta tell you haven’t done this for a while. I think that staffing arguments are very difficult for a plaintiff. They are expert, factually intensive, and often the nursing home can shift the playing field, because you can make an argument that when you’re looking at staffing, looking at the entire facility is one thing, but you really need to look at the staffing for your particular hall that your resident is on.
And there are HIPAA compliant and HIPAA privacy issues to deal with, and it’s always a slog. And so in Tennessee, since we’re able to talk to current employees, my private investigator can talk to people who are not management. And I’ve spent the first 18 paragraphs of our declaration is all prophylactic. I understand I’m not being paid.
I understand this is voluntary. Here’s the name of the defense lawyer. I’ve been given a copy, et cetera. And we make them sign every paragraph at the bottom of the page. But since we can talk to currents as well as Nazi formers, The case law in Tennessee allows us to create a subjective understaffing argument where we don’t have to go on the objective side.
And so we can bring in testimony from people who worked in the same area of the nursing home where my particular client lived, who can talk about, it was constantly a battle. And where I find, I tell folks this anybody who calls me, I always blow their mind. I’ll say, let me guess. Your dad or mom ended up going to the hospital on Sunday night.
Or Monday morning. Monday morning and there’s a pause and almost inevitably, 95% of the time it’s correct. And what I find is where the B teamers hang out, who are the B team staffers, is on the weekends and the holidays. This is Memorial Day that we’re being interviewed. Guarantee you a bunch of folks are gonna be working at that facility.
who don’t want to be there, who’d rather be at the lake or the beach who have to, who are being forced to work there. And they also are generally unfamiliar with baseline levels for the residents. And so there’s a there’s a, I tell my clients the most dangerous time at a nursing home is Saturday evening.
Tune into our podcast episode exploring the differences in care received from nursing homes versus assisted living facilities.
And if you’re going to, if you’re going to look to check out a facility on staffing issue, I find that if you simply hold your phone up, you can basically walk into anywhere if you act like you’re typing on your phone and just glide right in and you can walk into virtually any facility at nighttime on the weekends and check it out and look to see what the staffing levels are before you put someone in there from a prophylactic perspective.
But on the back end, we almost inevitably use rotten facilities. We have no problem because there’s a huge turnover. So the red flags that I’m looking for is a large turnover in the director of nursing administrator positions. Often you’ll see turmoil right around the time frame when the injury occurred.
What I find is And most injuries, most cases in an ALF are usually incident cases. In other words, I don’t see that many bedsore cases. And when you do, that is going to be or should be almost a slam dunk case. In my opinion I’ve had a couple and they’ve resolved fairly quickly. We haven’t gotten down to the weeds, but could be, I guess I’m in a roundabout way in terms of staffing analysis is going to differ on each state.
But I don’t, I feel like it’s hard often, the facility says we’ve met the minimum levels and, It’s difficult often because of shape shifting where it’s difficult to pin down where someone was, where they were assigned to at a certain time, often just finding those employees and talking to them, they’re going to give us what we want that may be different in different states.
Schenk:
No, that makes sense. Like you’re not having to use spreadsheets and stuff. You’ve got the test, direct testimony from people that are currently working there. That’s, I’m sure there’s pros and cons of the law in every state, but that’s definitely a pro for you guys is that you can talk to current employees.
Obviously we can’t do that in Georgia. In the last couple of minutes, walk me through what are some more of the challenges of an ALF case? What are some of the things that it might be more challenging for you than a typical nursing home case?
Morris:
First of all, you’re not going to see the volume because the needs are not as great where the often the difficulties going to rise is and certain lawyers rely heavily on state and federal regulations to create their case.
I tend not to, and I’m a big rules of the road guy. And where I think you’re going to have problems is that they are not heavily regulated and. A fall case in an assisted living facility environment is, in my opinion, much more challenging than in a nursing home case. And, I don’t, I’ve never been a huge fan, and a lot of plaintiff’s lawyers disagree with me.
I don’t fall cases, in general, because There’s a built in defense, which is that we can’t restrain them. And all we can do is encourage them and try to protect them. But there’s only so much that we can do. And so if someone suffering falls in an assisted living facility environment, they’re not required to hover over the patient of the resident.
Learn about regulatory practices for assisted living facilities in our discussion on Are Assisted Living Facilities Regulated?.
And so I think those can be challenging cases in an ALF environment. Often the charting, there’s just not a lot of charting to look at,
Schenk:
right?
Morris:
There’s just not. And we have a one year statute limitation here in Tennessee. And so you may end up having to be able to get your merit letter, which we have to get a key to legislation.
You’ve got to, you’ve got to have a, even finding an expert can be more difficult at times. There’s not going to be as many. There’s less boxes to check. There’s less paperwork to create, which gives them less opportunity for error. In Tennessee, we’re a one party state. And so I often encourage my clients to go lock in the story with, I say, turn your cell phone into an expensive tape recorder and put it on airplane mode and go down and lock the story in before the lawyers get involved.
For the other side. And so often I think that you’re just figuring out what happened. Can be difficult. I think getting a spoliation letter over to the facility sooner rather than later in our looping case that we recently handled. We found out that the gentleman who was in charge of preserving the videotape, he said I was told by management that you can’t have an elopement case at an assisted living facility because we’re not supposed to, they’re supposed to have freedom to come and go.
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And so we’re not supposed to guard them. So how could you elope from a facility, an ALF, if they’re free to come and go? That was an attractive argument facially. Until you get a hold of their internal policy, which says there is an elopement policy at all of these assisted living facilities. And the policy says that if you’re aware that they’ve got dementia and that they need supervision, then the definition of an elopement is someone leaving the facility just per se, and they’re required to notify the police over that, regardless of whether there’s a, getting those policies and procedures sometimes.
Can help really make your case, but on the front end, it may be more difficult to get a merit letter because you’re going to have a whole lot less to work with, which means you’re going to have to do a lot of shoe leather, and that can become a lot more expensive than being a desk jockey and looking at an MDS and looking at, all of the tools that you have to work with in a standard nursing home case.
I will tell you this, one of the great fears that the assisted living facility industry has is their cases being shoehorned into a landlord tenant claim, which has attorney’s fees on it in most states. There’s only one reported case that I’m aware of in the entire country. I think it’s out of Wisconsin, where the plaintiff brought an argument that the assisted living facility, basically at that point, there were no services being rendered.
They were basically an expensive hotel for the resident. And so the argument made is that the caps in a medical malpractice or health care liability action didn’t apply. The Landlord Tenant Act, which I think is pretty much got the similar language in all 50 states, something very similar. That was the controlling statutory authority, which has, of course, attorney’s fee provision on it.
Explore long-term care options and understand the role of assisted living facilities in our podcast episode, Understanding Long-Term Care Options.
And they are scared to death of that argument. Sure. Do not want an appellate court set precedent for that. And so if you’ve got a situation where your plaintiff is not on a whole host of services, it’s a lot easier to argue. And I actually, we had an independent living case where we got the trial court judge to agree that it was not governed by the Health Care Liability Act. And, of course, we had, attorney’s fees. Which is a humongous tool to enforce or lever the case up. That was a case of alarm fatigue where, the president was required every day to go over and punch a button saying, I’m okay. And if the person didn’t punch that button by 10 a.m, they go down to do a welfare check. And because so many people weren’t punching the button, they just quit doing the welfare checks. Basically was left on the ground for three days and became horribly dehydrated, which we were able to use the sodium level to prove that up on the hypernatremia and the and the B1 and creatinine in the baseline levels are normal.
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And then she was in total renal failure from just lack of water. And And that was a powerful case. It wasn’t an ALF, but you’re seeing these independent living are often there on the same campus as the ALF. And there, an issue becomes was that person really supposed to be in an ALF environment as they grade down or head towards the bottom, which would be the, the nursing home environment.
Schenk:
Right on. Park, I really appreciate you coming on the show and sharing your perspective on this. I know that we could probably talk for another six hours about this, but I appreciate you taking your time with us today. Yeah.
Morris:
Thanks for the opportunity.
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