John O'Connor
John O’Connor

The senior living industry’s reinvention as a healthcare player just received a notable setback. In a court room, of all places.

As McKnight’s Senior Living recently reported, a circuit court judge denied an operator’s move to dismiss a substandard care complaint. According to the allegation, a former resident’s death was due in part to the community’s failure to observe COVID-19 protocols.

What’s especially significant here is Judge Douglas L. Fleming Jr.’s searing words — and their unmistakable implication. Boiled down, he said that assisted living communities are not qualified to call themselves healthcare players.

His reasoning for such a rejection? Because senior living communities are not licensed as nursing homes or hospitals, nor do they employ licensed healthcare providers to “primarily” render healthcare services.

“One only has to look at the statutory distinction between an assisted living facility and nursing homes,” Fleming wrote. “[W]hile each facility renders healthcare services, only a nursing home primarily does so.”

Well, I guess that’s one way to kick a budding movement in the pants.

These days, fewer senior living communities simply describe themselves as a choice-driven, nonmedical setting for the aged.

Sure, maybe senior living (especially assisted living) might have aligned with that description a few decades ago. But times have changed.

Some assisted living settings now accept Medicaid payments (so much for the old private-pay-only requirement).

More notably, they no longer shy away from acknowledging the evident truth: healthcare is occurring within their walls.

Trade shows in recent years have showcased more operators proudly proclaiming to be healthcare providers. More than a few actively are competing against nursing homes (and to a lesser extent, home health settings) for residents being discharged from hospitals.

That’s why Judge Fleming’s ruling could become a real buzz kill.

Not only does the decision come as an eye opener; it also could give ammunition against the sector to at least two notable groups.

One is other plaintiffs who may believe that they were misled by marketing promises of more care than actually was delivered.

Another is nursing homes, which may believe that an unqualified — as in nonmedical — foe is unfairly restricting their access to people requiring post-acute care.

All of which could leave senior living operators with two obvious but uncomfortable choices.

One is to ramp up their medical care standards and pursue licensure.

The other is to revert to the official stance that healthcare is not really happening, despite overwhelming evidence to the contrary.

Care to pick your poison?

John O’Connor is editorial director for McKnight’s Senior Living and its sister media brands, McKnight’s Long-Term Care News, which focuses on skilled nursing, and McKnight’s Home Care. Read more of his columns here.

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