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An appellate court has granted class certification to residents alleging that a senior living operator used deceptive practices by falsely promising to adequately staff its communities to meet resident care needs, putting residents at risk.

In an Aug. 2 opinion, the US 9th Circuit Court of Appeals affirmed a ruling by the US District Court for the Central District of California in Heredia vs. Sunrise Senior Living, finding against Sunrise’s motion to strike expert testimony and certify a class of Sunrise residents. 

The lawsuit is thought to be the first such case to be granted class certification and could affect similar pending litigation against other senior living operators.

The complaint, originally filed in 2018 by plaintfiff’s attorney Kathryn Stebner, accused Sunrise of engaging in a “scheme to defraud” residents and their families in a California assisted living community by falsely representing in its admission contracts that each resident would be provided care services as determined by a resident assessment.

The claim alleges that as a result of Sunrise’s corporate staffing policies and procedures, residents do not receive the services they need or pay for, and that residents are placed at “substantial risk.” 

Current and former residents are pursuing claims under California’s Consumers Legal Remedies Act, Unfair Competition Law and elder financial abuse statute. The class action represents those who are or were residents of a Sunrise California assisted living community from June 27, 2013, to the present.

Sunrise had challenged the inclusion of expert testimony supporting class certification in the case. The appellate court supported the district court’s finding that a staffing expert, a damage expert and a systems engineering expert provided “reliable and relevant” testimony regarding estimates for time required to provide services to residents.

The court also sided with the lower court in finding that all class members were exposed to substantially similar representations about Sunrise staffing levels through their residency agreements. The class certified by the district court consists of Sunrise residents who “contracted with and paid money to [Sunrise] pursuant to a residency agreement.” 

“Plaintiffs demonstrated a ‘nexus’ between their legal theory and facility-wide staffing shortfall percentages because they have shown that the service level fees that residents agreed to pay correlate with the level of staffing they expected to receive,” the opinion read.

Staffing lawsuits target senior living

The recent accidental deaths of three Atria Senior Living residents has sparked renewed interest in California’s staffing requirements for assisted living communities, with two lawsuits alleging insufficient staffing and training as contributing factors. California’s staffing-related regulations for assisted living communities have been called “vague” because they specify that stuffing be “sufficient” without defining “sufficient.”

Brookdale Senior Living has faced several lawsuits in recent years based on allegations related to the quality of its services and company representations of those services to the public. A class action lawsuit filed in 2020 accusing the company of “chronically insufficient staffing at its communities to meet financial benchmarks. The company also faces a shareholder lawsuit, which a court allowed to go forward earlier this year, alleging misconduct by company officials in trying to meet financial targets, causing the company to intentionally underestimate data used for staffing algorithms.

Additionally, a class action lawsuit filed last fall alleging chronic understaffing at six illinois skilled nursing facilities put other long-term care providers on notice. 

Last fall, Argentum, the American Seniors Housing Association and the California Assisted Living Association filed an amicus brief in the Sunrise case, arguing that class actions are “unnecessary and counterproductive” because assisted living communities are highly motivated to provide quality care to residents. The brief also argued that the expense and disruption of defending class action suits diverts resources from that care.

Argentum noted that because the decision is unpublished, it does not establish any binding precedent for other cases, but plaintiffs will be able to cite it in other cases, including in similar pending litigation against other senior living operators.

AARP and the California long-term care ombudsman also filed an amicus brief in the Sunrise case in February, citing a lack of oversight in US assisted living communities, leaving class actions as the only way for older adults to assert their rights.