scales of justice

The country’s largest senior living company is facing a potential class-action lawsuit over alleged unfair trade practices and alleged failure to provide promised services at dozens of its assisted living communities.

The complaint, filed April 24 in the U.S. District Court of the Middle District of Tennessee, Nashville Division, claims that Brentwood, TN-based Brookdale Senior Living misled residents and their families about personalized services and staffing levels at its assisted living communities through its marketing materials and residency agreements. Brookdale disagrees.

“The health and wellbeing of our residents is Brookdale’s top priority,” Heather Hunter, a senior public relations specialist at Brookdale, told McKnight’s Senior Living. “We absolutely disagree with the allegations in the suit and believe the complaint is completely without merit.”

The company operated at least 56 communities in North Carolina during the time period covered by the lawsuit. The complaint anticipates that more than 5,000 current and former residents could be part of the class action status if it is certified.

The suit is being brought under the North Carolina Uniform Declaratory Judgment Act and the North Carolina Unfair and Deceptive Trade Practices Act. 

It alleges that Brookdale participated in “systemic unfair and deceptive” trade practices and breaches of contract beginning in April 2016 by engaging in “inherently flawed and deceptive” staffing practices, and then misleading residents and families through misrepresentations and misleading statements in marketing materials and residency agreements. The suit further alleges that “every resident, regardless of need level, was deprived of services that were needed and paid for based on inadequate staffing levels.

The complaint was filed by Peggy Fisher on behalf of her brother George Gunza, a resident of Brookdale Reynolda Road, an assisted living community in Winston-Salem, NC. Fisher, acting power of attorney, withdrew Gunza from the community in May 2018 as a result of staffing she said was insufficient to meet her brother’s needs. 

The complaint states that Brookdale, through its marketing and sales materials, promised tailored services to meet the individualized needs of its residents but “systematically and willfully understaffed its facility to boost its profitability.” Residents and families, the complaint states, were misled that communities would meet basic care needs and daily living services. 

According to the complaint, Brookdale used its own service agreement software algorithm to enforce corporate-determined staffing levels rather than using personal service assessments of each resident’s care and service needs. Residents and families allegedly were misled by resident agreements that indicated facilities would meet basic care needs and daily living services — some for additional fees — based on those PSAs. 

The suit asserts that Brookdale determines, limits and controls day-to-day staffing levels at its communities from its corporate headquarters. Executive directors at each facility are not permitted to modify those staffing levels without permission “from several layers of Brookdale corporate management,” the complaint maintains.

“As a result, Brookdale has systematically short-staffed its assisted living facilities on a day-to-day basis, employing a fundamentally flawed and automated process, purposefully created and mandated to achieve budget objectives and to satisfy predetermined financial performance thresholds rather than meeting residents’ needs by, among other things, embedding flawed assumptions into its staffing software to underestimate required staffing levels,” the complaint reads.

Christa L. Collins, lead counsel for Gunza and Fisher, cited strict court rules in declining comment on the suit.

This is the second recent lawsuit accusing the company of understaffing. Another suit, filed in 2017 in California, was thought to be the first class-action lawsuit against an assisted living operator to be brought under the ADA. Potential damages in that case could exceed $45 million, as the lawsuit is seeking a minimum of $9,000 for each affected resident and more than 5,000 residents of Brookdale communities in California could become part of the class.