senior living ada lawsuit
Property Casualty

Are You Ready for the Next Wave of Litigation?

Harold Kavan
Harold Kavan
Property Casualty

In the last month, I’ve been reading some interesting news as it pertains to assisted living and memory care facilities. It caught my eye so much so, that I think we need to get some information out in the open. Americans with Disabilities Act (ADA) lawsuits — a way to advocate for compliance of a 27-year-old federal law or just another lawsuit using the ADA as cover?

Here’s what’s going on. A class-action lawsuit has been brought against Brookdale Senior Living, Inc. and Brookdale Senior Living Communities, Inc. — together the largest provider of assisted living in the country — by four plaintiffs, through their legal guardians, who allege the companies operate “a system of understaffed assisted living facilities that [fail] to consistently provide even the most basic level of promised care.” The lawsuit is believed to be the first of its kind to be brought against an assisted living facility under the ADA.

With potential damages that could exceed $45 million, according to one of the attorneys representing the plaintiffs, it’s not something that can be ignored. While allegations such as understaffing are included in the lawsuit, the allegations regarding multiple barriers in the patient rooms and throughout the communities, particularly for those who have cognitive and other impairments, are what bring concern and maybe even fear to the assisted living and memory care operators throughout the U.S. Why? Because these operators have a lot on their plates to ensure patient satisfaction and safety, and when one adds the complexity of the ADA, International Code Council/American National Standards Institute 117.1, state requirements, local building codes, the Fair Housing Act — it’s nearly overwhelming.

If you’re unsure of exactly what assisted living facilities are…they provide services for seniors who wish to remain independent, but still need some assistance with daily living. The types of assistance offered in the facilities include help with bathing, dressing, eating, grooming, and getting around. The variety of options available in the assisted living facility industry help make them popular with seniors, as senior care providers seek to promote active and engaging environments. In contrast, memory care units (also called special care units [SCUs]) usually provide 24-hour supervised care within a separate wing or floor offering specialized services for people with Alzheimer’s or other types of dementia. In addition to having staff trained to understand the needs of cognitively impaired people, some units are secured, have alarm devices, and provide enclosed outdoor areas to keep people with “exit-seeking behaviors” from wandering.

But on top of all of that comes ensured safety. Facility operators must accommodate aging in place and determine what needs to be there to provide that support. They also must consider staff who may have accessibility requirements, such as a nurse or physician who is in a wheelchair. In addition, the facility operators need to not only think about the interior building environment, but they also must address exterior spaces, drop-off areas, walkways, ADA-relevant parking spaces and their proximity to the building entrance, etc. Accessibility issues can even creep into your website. So, it gets a bit complicated. However, it’s imperative to be able to accommodate the ever-changing needs of the residents.

Where it gets even more tricky is that assisted living and memory care facilities can’t be created as “one size fits all.” Take for instance something like grab bars in showers. Some residents may not like the appearance of them or have a need for them…and yet, other residents may not be able to take a shower without one in place. So, what should operators do? Well, if they originally install all showers in the facility with the backing needed to add grab bars, the alteration becomes much easier to respond to residents’ needs should a grab bar be required down the road. There will be some cost incurred upfront, but the flexibility to add assistive devices in an efficient manner will be well received by the resident as their needs change. This is just one example…but there are many others, as resident wants and needs vary (not even all wheelchair users have the same need).

The key to success is having the flexibility and strategic planning in place to achieve a very residential and hospitality-minded environment. If you’re in the senior care industry, you know this can be tough to do. But Holmes Murphy is committed to helping you become leaders in the industry by providing high-quality care and services for residents and their families, which increases satisfaction, occupancy, and ultimately — and possibly most importantly — margin. So, if you have questions, please don’t hesitate to reach out to us! We’d love to help you feel confident in the care (and facility space) you’re providing.

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