Assisted Living Centers Must Meet Residents’ Changing Needs
Most residents of assisted living centers experience a gradual decline in their physical and cognitive health. When an assisted living facility allows a resident to stay even when the facility is unable to provide the services that resident requires, the facility endangers the senior it is being paid to serve and opens itself up to a lawsuit.
The line that distinguishes nursing homes from assisted living centers and other kinds of long-term care facilities is blurring. Assisted living facilities increase their profits by keeping residents who need more intensive services. At the same time, residents want to “age in place” and maintain as much independence as possible for as long as possible.
Nursing Home Resident Abuse
It nevertheless remains the responsibility of the facility to know the physical and cognitive condition of its residents and to make sure each resident is receiving the level of care needed, even when it means advising residents and their families that the facility can no longer meet their needs.
That’s not just my observation. That’s the warning presented earlier this year to members of the American Health Lawyers Association, which includes many defense attorneys and in-house counsel for the long-term care industry.
I’m a plaintiff’s lawyer. Our attorneys represents residents and their loved ones who have been abused or neglected in nursing homes, assisted living centers and memory care facilities. On the other side of the aisle are the defense attorneys who represent those facilities. The 13,000 members of the American Health Lawyers Association’s include many defense lawyers, compliance officers, consultants and regulators who counsel or lead long-term care facilities.
At an AHLA conference earlier this year, two attorneys brought a presentation titled, “Best Practices for Managing Acuity Creep in Assisted Living.” The presenters were nursing home defense attorney Caroline Berzdik and Julia McMillen, in-house counsel for Post Acute Partners, which operates several long-term care facilities in the Northeast.
Their presentation brought a sober warning to our nation’s more than 30,000 assisted living communities, including the hundreds of AL facilities here in Oklahoma. Here are some take-aways from their report. (Information within quotation marks are cited directly from the report.)
Before a resident is admitted to an assisted living facility, the facility should perform an assessment of the prospective resident’s physical, cognitive and social health.
“This initial assessment is critical to determine whether an AL facility can realistically meet the needs of the resident.”
The facility should make sure that residents, prospective residents and their families understand what services the facility does and does not provide. Many citizens do not understand the difference between a nursing home and an assisted living facility.
In Oklahoma, the biggest difference is that nursing home’s provide 24-hour nursing care and assisted living does not. However, Oklahoma law neither permits nor denies an assisted living center from providing various health services; instead, the law holds a facility liable for whatever services it advertises and charges for.
At the time of admission, an admissions agreement should be created that clearly states what services the resident will and will not be receiving. Facilities that offer tiered levels of services should make sure that a resident knows exactly which services he or she will be receiving.
The report cautioned,
“If assisted living facilities are vague and ambiguous, particularly when it comes to indicating what basic services are included in the basic rates and what additional services are available and at what rates, experience has shown that families are more apt to take legal action.”
When a resident is admitted, a service plan should be created which specifies exactly which services the resident will receive. “Service plan conferences should be done on a consistent basis and provide the opportunity to educate and measure where a resident falls on the acuity scale.”
In other words, as the physical and cognitive health of assisted living residents steadily decline, consistent, periodic re-assessments are necessary to ensure that the facility is able to continue meeting the needs of each resident.
“Lawsuits that are filed against assisted living facilities seem to echo a similar theme — residents being kept in a setting where the facility could allegedly not meet the increasing acuity,” the report said.
Assisted living facilities should “closely scrutinize” the descriptions of services that appear on their websites, advertisements, printed materials and social media.
Staff who interact with prospective residents, including those in admissions and in marketing, should be trained not to over-sell or overpromise services.
For example, the report pointed to facilities that advertise programs and services for people with Alzheimer’s disease, other forms of dementia, or other forms of cognitive impairment. Many assisted living facilities that make such claims do not live up to their advertising or the expectations of their residents and families, the report said.
As assisted living residents develop dementia or other cognitive impairments, one of the biggest risks is “elopement,” the tendency of such residents to wander off. Assisted living facilities have traditionally provided significant independence to their residents. However, too much independence can put residents with cognitive difficulties at risk.
“If an AL facility is not cautious and does not put certain precautions in place or transfer a resident with wandering behaviors who cannot be appropriately managed, the facility is opening the door to litigation and adverse regulatory action,” the report said.
Many assisted living resident take multiple medications each day. New medications are continually being introduced, and managing them is increasingly complex.
Some assisted living facilities allow residents to manage their own medications. Some facilities employ certified medication aides (CMAs). Some facilities are employing more nurses to handle medications, to decrease the chance of a negative outcome. Some facilities pay pharmacy consultants to periodically review the medications their residents are taking.
Each facility must find its own solution. Getting medication management wrong endangers residents and results in lawsuits.
In the past, assisted living facilities did not need much nursing staff. When residents required significant nursing care, they were transferred to nursing homes. As today’s assisted living facilities try to avoid such transfers, they can’t have it both ways. Keeping residents with greater needs puts the burden on the facility to have sufficient nursing staff to meet those needs.
“Even though it may not be a regulatory requirement to have licensed staff, it may be necessitated by the acuity levels in the building,” the report said.
“Falls and decubitus ulcers (bed sores) are two common signs that an assisted living center has allowed higher-acuity residents to stay beyond the time that the facility is able to provide them adequate care,” the report said. “These two issues are frequently highlighted in lawsuits.”
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Are you a resident of an assisted living facility? Do you have a loved one who is? Do you believe you or your loved one has experienced abuse or neglect in a nursing home or assisted living facility?
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