Assisted Living Facilities: Key Insights for Attorneys Navigating Elder Care Cases

As the population ages, the demand for various elder care services has surged, with an estimated 21.6% of the U.S. population projected to be 65 or older by 2040. By 2060, the number of older adults may increase to almost 95 million.

For attorneys, understanding the distinctions between assisted living facilities (ALFs), long-term care (LTC) facilities, and skilled nursing facilities (SNFs) is critical, particularly in cases involving elder abuse, neglect, and personal injury.

Part one of this series outlines the unique characteristics of ALFs, their regulatory frameworks, and potential legal concerns that may impact your cases. We will discuss LTCs and SNFs in part two – click here to read it.

Assisted Living Facilities (ALFs)

Assisted living is a residential option designed for older adults who want to maintain their independence but need some assistance with daily personal care tasks such as bathing, dressing, cooking, and cleaning. This arrangement suits retirees who require limited assistance but do not need continuous medical care or supervision.

Residents of assisted living communities may benefit from services such as medication management, meal preparation, transportation, and assistance with activities of daily living (ADLs). They also offer social and recreational activities, allowing residents to engage with an active community without the responsibilities of homeownership.

Services provided may vary among facilities but often include housekeeping, laundry, exercise programs, and specialized care for those with mild medical conditions who need additional support without full-time supervision, such as Alzheimer’s or Parkinson’s disease.

Assisted Living Facility Staffing Requirements

Assisted living facilities are not federally regulated, leaving the staffing requirements to state regulations. Employment standards for each facility are determined by the individual facility, for the most part.

For example, the state of Oregon has no specific minimum staffing criteria. Oregon law mandates that facilities maintain enough “qualified awake direct care staff” to meet their residents’ 24-hour scheduled and unscheduled needs.

Direct care staff administer medications, assist residents with activities of daily living (ADLs) as needed, and provide necessary support and supervision. Facilities must train and adequately supervise staff to provide this care. Licensure requirements for ALF caregivers are generally lax, and most staff are unlicensed. They usually have a CPR certification and have taken a few state-mandated training courses.

Most ALFs employ registered nurses (RNs) or licensed practical/vocational nurses (LPNs/LVNs) at least part-time. RNs delegate specific nursing functions to unlicensed assistive personnel (UAP) based on the state’s Nursing Practice Act (NPA).

Tasks that RNs may delegate to UAPs include:

Blood glucose testing
ADLs, such as bathing and dressing
Medication administration
Subcutaneous medication, such as insulin and Lovenox

Training UAPs typically falls to the ALF director in collaboration with an RN, and hands-on training may be done by a senior UAP under the RN’s guidance. After completing their training, UAPs typically take a required medication administration test, and their subcutaneous injection skills are re-evaluated every three months to ensure ongoing proficiency.

Medication administration is complex and multifactorial, and delegating this task poses an additional risk factor. Clear regulatory frameworks, well-defined procedures, and adequate training and supervision are crucial, given the associated risks.

LPNs may teach and supervise UAPs under the direction of an RN, but ultimately, it is the RN’s responsibility to evaluate whether a specific task is suitable for delegation.

In Chapter 851, Division 047 of the Oregon Administrative Rules, the Oregon State Board of Nursing outlines the teaching and delegation responsibilities of RNs.

The RN must ensure the UAP is willing and capable of safely completing assigned tasks.

RNs must delegate using the five rights of delegation:

Right task
Right circumstance
Right person
Right direction and communication
Right supervision and evaluation

RNs must be knowledgeable about relevant regulations and competent to delegate tasks and supervise effectively. As per above, the RNs working in OR ALFs must follow the rules specified in OAR 851-047-0000, or disciplinary action may result.

The key responsibilities of the RN include:

Assessing the safety of delegation in each client situation.
Implementing the delegation process effectively.
Adhering to delegation procedures as established by the state’s SBN.
Reporting unsafe practices to the facility owner, administrator, or relevant state agency.

The operation of ALFs in Oregon falls under the jurisdiction of the Department of Human Services: Aging and People with Disabilities, particularly Oregon Administrative Rules Chapter 411, Division 54.

Legal Concerns for Assisted Living Facilities

Evaluating a care facility necessitates a thorough understanding of state and federal regulations and the state’s Nurse Practice Act (NPA).

Lack of regulations for assisted living facilities

Assisted Living Facilities (ALFs) operate under minimal regulations compared to nursing homes. Due to the lack of strict rules and regular inspections, ALFs may not respond appropriately to complaints of medication errors, fraud, or elder abuse or neglect. Whether a resident requires more care than a facility can provide is primarily left to the facility itself or the resident’s family, and the facility has a financial stake in whether the resident stays or is moved to a different facility.

Delegating tasks to unlicensed assistive personnel (UAP)

A thorough knowledge of regulations, including the state’s Nurse Practice Act, is essential, especially when training and delegating tasks to unlicensed assistive personnel (UAP).

According to state nursing practice acts, registered nurses (RNs) are responsible for delegating nursing care to untrained staff. However, the individual facility determines how often the RN conducts care reviews, which may influence the standard of care provided.

UAPs are not obligated to document care like skilled nursing professionals do, which can lead to inadequate care records. This lack of documentation complicates the review process during legal examinations. Consequently, it can be challenging to determine what care was provided, putting the facility at a disadvantage when verifying the care they claim was administered. As a result, it’s often necessary to gather extensive information during depositions.

Bringing abuse or neglect claims against assisted living facilities

Bringing abuse or neglect claims against ALFs can be challenging because, typically, significant events must occur before families or other advocates recognize the issues and speak out.

With limited caregiver documentation, establishing a clear understanding of past care requires deep medical knowledge to trace observed problems back to actual events that transpired. Additionally, the lack of mandated inspections can make obtaining information about abuse and neglect claims challenging.

Conclusion

For attorneys handling elder abuse, neglect, or personal injury cases, understanding the nuances of assisted living facility (ALF) operations and regulations is essential. Unlike long-term care (LTCs) facilities and skilled nursing facilities (SNFs), ALFs are minimally regulated, with significant gaps in oversight that can impact resident care and complicate legal claims.

With variable state-specific staffing and documentation standards, establishing proof in abuse or neglect cases requires a detailed approach and often involves meticulous investigation into staff qualifications, delegation practices, and care records. The limitations on mandated documentation in ALFs can also present challenges for attorneys seeking clarity on the care provided, especially when handling cases without extensive facility records.

Attorneys representing clients in these cases must be prepared to gather and analyze available information, sometimes through depositions and expert insights, to uncover potential lapses in care. Integrity Legal Nurse Consulting PDX can help you navigate these complexities.

We offer in-depth chart reviews, expert analyses, and insights into staffing practices, helping you build a stronger case and uncover key evidence for elder abuse, neglect, and personal injury claims. Click here to contact us and schedule a free consultation.

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Long-Term Care & Skilled Nursing Facilities: Key Insights for Attorneys Navigating Elder Care Cases