Broken promises about service and care levels, attributed to “grossly understaffed” at senior living communities and skilled nursing facilities, are the driving force behind a surge in class-action lawsuits against such providers, according to two legal experts.
The Long Term Care Community Coalition hosted a webinar Tuesday that included AARP Foundation Litigation, a charitable nonprofit arm of the AARP that focuses on civil rights cases, abuse and neglect in senior living communities and skilled nursing facilities. The group advocates for systemic change in federal and state courts to “change the circumstances that give rise to poor care,” AARP Foundation Litigation Vice President Kelly Bagby said.
Benjamin Davis, AARP Foundation Litigation senior attorney, said an issue arises when operators promise to provide a sufficient level of staffing but residents and their families mistakenly believe that that promise means that their loved ones will receive individualized care. The dynamics of senior living communities and skilled nursing facilities, he said, mean that staff members are devoted to all residents, not individuals.
The result, Davis said, is that providers make promises to attract residents but then don’t meet resident needs or effectively reassess residents to determine their changing needs.
Davis highlighted a current case against Chancellor Senior Management, a Columbus, OH-based organization that manages four assisted living communities in the state. The lawsuit alleges that Chancellor used a formula to determine the hours of care that each resident needed based on their individual conditions but only applied that formula for billing purposes, not to determine staffing levels. The lawsuit further alleges that staffing decisions are made at the corporate headquarters rather than at the community level.
The Supreme Court of Appeals of West Virginia opened the door for the case to move to a class action lawsuit, Davis said. The court also further declared that the provider’s arbitration agreements in resident admission contracts were unenforceable because they were part of a larger contract rather than a stand-alone agreement. The American Health Law Association requirements incorporated into those agreements call for them to be stand-alone agreements.
Bagby referenced a federal class action case against Brookdale Senior Living filed in 2020. The lawsuit accuses the country’s largest senior living company, based in Brentwood, TN, of “chronically insufficient staffing” at its communities, allegedly to meet financial benchmarks. The lawsuit also accuses Brookdale of misleading residents and families and of failing to provide care and services.
“Our cases are about how to force companies to change their practices around adequate staffing,” Bagby said, adding that attorneys are focusing on violations of the consumer protection statutes that allow residents to recover damages for injuries when companies do not deliver on their promises. “In every assisted living and nursing facility, the residency agreement lays out those promises to residents,” she said.
Bagby said that it is critical for providers to be transparent about their practices and to not lie about their staffing levels.
Class action staffing lawsuits not unprecedented
Class action lawsuits against senior living providers related to staffing levels are not a recent phenomenon.
In 2021, for example, Aegis Living of Bellevue, WA, settled two class action lawsuits for a combined $16.25 million. The lawsuits alleged that Aegis based staffing levels on predetermined staffing budgets rather than on resident care needs and in doing so violated elder abuse and consumer protection laws.
Similar legal action against other senior living companies also resulted in settlements.
For instance, the former Emeritus Corp., which merged with Brookdale in 2014, settled a class action lawsuit in 2016 for $13.5 million. The suit alleged that Emeritus misled assisted living residents about the use of a computerized system to evaluate residents and determine sufficient staffing and care levels.
Atria Senior Living settled a similar lawsuit for $6.4 million that same year, and Oakmont Senior Living settled a class action lawsuit for $9 million earlier this year. A similar lawsuit against Sunrise Senior Living is pending.
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 care provision.