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Increasing safety in assisted living: as assisted living facilities gain popularity, they are taking on responsibilities that they are not equipped to handle. Attorneys need to step in when regulation fails to protect the elderly.

Article Excerpt
Assisted living facilities are rapidly becoming the nursing homes of the future. According to the National Academy for State Health Policy, more than 36,000 licensed facilities are operating nationwide. (1) Because there is no common definition for these facilities, however, this number may not adequately reflect their prevalence.

Although most litigation in the longterm-care field over file last 10 years has involved nursing homes, suits against assisted living facilities are mounting. One reason is that these facilities are not regulated by the federal government, and the state regulations that exist are inconsistent and, for the most part, lax in enforcing industry standards.

In an attempt to compete with nursing homes, assisted living facilities are accepting residents with greater medical needs or significant cognitive impairment. Most major chains promote special Alzheimer's disease units, but the reality is that staffing in many of these facilities is inferior to that in nursing homes and simply cannot meet the needs of these residents.

Neglect in assisted living facilities can result in falls, fractures, sexual or physical abuse, pressure sores or other skin breakdown, malnutrition, depression, immobility, and even death. For example, one assisted living facility admitted an elderly alcoholic undergoing detoxification who required close supervision and care. An employee allegedly provided him with a lighter and cigarettes, then left him unsupervised. The resident set himself on fire. (2)

In other cases where supervision was severely lacking, people who tended to wander were admitted into facilities that were not set up to prevent this behavior. Wanderers mostly suffer falls and fractures, but some who have ventured out during winter months have died from hypothermia. One unfortunate resident wandered into the path of a moving train and was killed.

In several cases, assisted living facilities accepted severely ill patients who either had or were at severe risk for developing pressure sores, even though these facilities are not equipped to provide the skilled care--including tube feeding, catheterization, and daily turning and positioning--necessary to prevent or treat them. These residents developed severe pressure sores as a result of improper care.

These scenarios are not uncommon, but a lack of reporting requirements, state investigation, and active litigation has allowed assisted living facilities to continue operating under far less scrutiny than the nursing home industry.

Admission criteria

When a facility, accepts residents whose needs or acuity levels exceed the staff's skill or training, it opens itself lap to legal liability. In most jurisdictions, liability can be determined by the state's admission criteria.

For example, Virginia regulations prohibit assisted-living facilities from admitting or retaining patients who have stage III and IV pressure sores; who are ventilator dependent; who require nasogastric tubes, intravenous therapy, or injections directly into the vein; and who need continuous licensed nursing care. (3) Other states have similar limitations. (4)

These are sonic common state law criteria that would preclude a person's admission to assisted living facilities:

* is a threat to self or others (5)

* has a contagious or an infectious disease (6)

* requires care beyond the facilities' skill. (7)

* requires physical and/or chemical restraints...

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