Nation's largest senior living operator agrees to renovate, change policies as part of settlement

By Candice Nguyen, Michael Bott and Michael Horn

Putting an end to eight years of litigation, the nation's largest senior living operator is agreeing to upgrade some of its facilities – by making them safer and more accessible for seniors – as part of a class action settlement in federal court last month. 

More than 80 families came forward as part of a lawsuit against Brookdale Senior Living, accusing the company of elder financial abuse, violating the Americans with Disabilities Act (ADA) and operating “a system of understaffed assisted living facilities that fails to consistently provide even the most basic level of promised care.”

Plaintiff Bernadette Jestrabek-Hart, who lives at Brookdale Scotts Valley, applauded the settlement, and described access issues endured by seniors with mobility issues.

“I have an electric scooter and they wouldn’t take my scooter on the bus,” Jestrabek-Hart said. “They kept telling me the ramp wasn’t strong enough.”

Under the terms of the settlement agreement, Brookdale must renovate three of its California facilities, including Brookdale San Ramon and Brookdale Scotts Valley in the Bay Area and Brookdale Brookhurst in Southern California, by bringing common areas and certain types of resident units into ADA compliance. Brookdale also agreed to make staffing levels more transparent and ensure its evacuation plans accounted for wheelchair-bound seniors at the San Ramon and Scotts Valley locations. 

Gay Grunfeld, co-lead counsel for the plaintiffs in the Brookdale suit, called the settlement historic.

“To my knowledge, [it’s] the first time that an assisted living facility in the United States has been required, albeit under a settlement, to make remediations, renovations to a facility to come into compliance with the national mandate with the [Americans with Disabilities Act],” Grunfeld said.

While Grunfeld said she was “pleased with the outcome,” she lamented the deaths of four plaintiffs during the litigation. 

“They were very important to us,” Grunfeld said.

The class action lawsuit isn’t the only instance where Brookdale has been accused of subpar care.

In 2021, Brookdale’s Napa facility was cited by the state for persistent staffing shortages and for failing to properly investigate after a resident fell 10 separate times and ended up in the hospital. That same year, state inspectors cited Brookdale’s assisted living facility in San Jose, stating staff took 44 minutes to call 911 after a resident showed stroke symptoms.

Brookdale says it has made corrections to address both violations. 

In 2022, California’s attorney general announced a $3.25 million settlement with Brookdale after alleging the company misrepresented the quality of care at 10 skilled nursing facilities in the state. Brookdale did not admit fault and said it settled the case due to rising legal fees.

Grunfeld said she hopes the entire senior living industry takes notice of Brookdale’s latest settlement. 

“This settlement sends a message to all assisted living providers here in California and nationally that the best practice and the national requirement is to comply with the Americans with Disabilities Act,” she said.

Brookdale sent a statement responding to the settlement, saying:

“We are pleased to have reached a settlement that is favorable to Brookdale and includes no finding of wrongdoing. While we continue to dispute the allegations, we can now move forward and stay focused on delivering high quality of care and services to our residents.”

Jestrabek-Hart said she’s already noticing a difference in how Brookdale Scotts Valley is addressing complaints from residents but hopes other senior living operators follow suit.

“I have friends now in other facilities that are having some of the same concerns,” she said. “So, if [those facilities] see that they really need to follow the ADA, maybe they'll start doing it.”

Brookdale has five years to complete the court-ordered renovations. 

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Nation's largest senior living operator agrees to renovate, change policies as part of settlement 

Aegis Living settles staffing lawsuit for $16.25 million despite ‘fervently disputed’ allegations

by Kimberly Bonvissuto

Aegis Living says it has agreed to the $16.25 million settlement of a lawsuit alleging that staffing decisions were based on budgets rather than resident care needs so that it can focus on “what matters most —  our residents, their families and our team.”

A federal judge on Monday signed off on the settlement, which resolves claims that the Bellevue, WA-based company in Washington state and California made staffing decisions based on budgets rather than resident care needs. Aegis continues to deny any wrongdoing.

“The core of our mission and culture is to provide the highest level of care for our residents. From the beginning, we have fervently disputed the allegations in this case,” Aegis Living General Counsel Elizabeth Chambers told McKnight’s Senior Living on Tuesday. “After several years of aggressively litigating, we made the decision to stop fighting, collaborate with the plaintiff’s attorneys, and put an end to this case so we can continue focusing our full attention on what matters most —  our residents, their families and our team.”

U.S. District Judge Jeffrey S. White approved the deal, according to Law360; it resolves two lawsuits against the senior living company in California federal and Washington state courts.

The two class action suits alleged that Aegis made misleading statements or omitted information about how resident assessment information would inform staffing levels. The lawsuit claimed that Aegis based staffing levels on “predetermined labor budgets, regardless of change in the overall care needs and assessed carepoints of current residents.” The suit argued the practice violated elder abuse and consumer protection laws, and left facilities understaffed and residents’ needs unmet.

The settlement includes $6.35 million in attorney fees and $1.17 million in expense and costs, leaving about $8.4 million for residents, according to Law360. California residents who were part of the suit and lived at one of 15 Aegis Living assisted living communities there between April 12, 2012, and Oct. 30, 2020, will receive approximately $950 each. Washington residents who were part of the suit and lived in one of 18 Aegis Living assisted living communities there between March 8, 2014, and Oct. 30 2020, will receive approximately $1,550 each.

Under the settlement, Aegis Living is required for three years to set staffing levels based on the amount of resources “reasonably required” to perform the care tasks needed by residents, as determined by the company’s assessment procedures.

Similar legal action against other senior living companies also resulted in settlements. The former Emeritus Corp., which merged with Brookdale Senior Living 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.

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Aegis Living settles staffing lawsuit for $16.25 million despite ‘fervently disputed’ allegations

THOSE ARE OUR PARENTS YOU ARE IGNORING

From The Elder Abuse Reform Now's "The Silver Standard News"
The Systematic understaffing of America's nursing homes.

By Joan Hunt

Most Nursing Homes Have Overstated Staffing for Years
 
A recent analysis by the New York Times and Kaiser Health News confirms what many families of nursing home residents have long suspected—staffing is often inadequate to provide proper care for their loved ones. Records show the number of nursing aides fluctuates significantly from day to day, with particularly large deficits occurring on weekends. In fact, on the lowest-staffed days, personnel take care of twice as many residents as they do on the highest-staffed days.

The analysis is based on a newly implemented system of documenting staff numbers in nursing homes, which has been designed to provide greater accuracy. Thus, records for the first time reveal the extent and magnitude of personnel deficiencies in facilities across America. Approximately 70 percent of 14,000 nursing homes have lower staff numbers than the previous system reported. The average staffing decrease is 12 percent. Records also show that on weekends, 11 percent fewer nurses and 8 percent fewer aides are on duty.

Federal law doesn’t mandate a minimum staff-to-patient ratio. The only requirement is that a registered nurse be on site eight hours a day and that a licensed nurse be on site at all times in certified nursing homes. Data from the last quarter of 2017 disclose that one fourth of the facilities had no registered nurse at work.

Previous Nursing Home Rating System Misled Consumers

Since 2009, Medicare had used a nursing home rating system that assigned from one to five stars to each facility based largely on three criteria. Two of the criteria were derived from unverified self-reported data. Because no procedure was in place to validate the data, it could paint an inaccurate picture of staffing levels.

While the remaining criterion came from annual health inspections conducted by independent reviewers, this assessment could be manipulated. It was possible for nursing homes to anticipate the inspection and temporarily schedule more staff during that time, thus enabling them to inflate their staffing numbers. After the inspection was finished, the staffing would return to its inadequate level. Consequently, the ratings failed to reflect reality, and consumers were misled.

New Nursing Home Rating System Has Greater Accuracy

Now, due to the Affordable Care Act of 2010, which has only recently been implemented, data on nursing home staffing is more accurate. Instead of coming from self-reports, it’s based on daily payroll records. The discrepancies between earlier staffing records and the new records provide evidence that staffing levels reported over the last ten years have been exaggerated. The data shows that even facilities with good Medicare ratings for staffing have shortages in nurses and aides on some days.

Despite the more reliable method of determining staff numbers, the new rating system still has some drawbacks. Medicare assigns stars to facilities by comparing one nursing home to another, which is, in effect, grading on a curve. Therefore, many facilities have kept their ratings, even though payroll records show they have lower staffing levels than previously reported. Although the ratings can be found on Medicare’s Nursing Home Compare website, they aren’t dependable indicators that a facility has enough staff to provide quality care.

Patient Advocacy Group Calls for Congressional Hearings

After the recent report in the New York Times, an advocacy group known as the Elder Justice Coalition (EJC) called for immediate congressional hearings on chronic nursing home staff shortages. Group members are specifically concerned that the shortages have gone unnoticed up until now.

“We’re asking Congress to take a good hard look at staff shortages,” said the coalition’s national coordinator, Bob Blancato, in an interview with the Silver Standard News. “The new system may not be living up to expectations. Perhaps after clarification there could be legislation that would come forward.

“Several things need to be considered: number, quality, and training of staff. If part of the problem in attracting and keeping staff is due to wages that aren’t competitive with other types of medical facilities, this needs to be addressed. There has to be an incentive for people to want to go to work. The lack of workforce required to care for the aging population is a crisis that will be in front of us for years.”

Consequences of Understaffing

Understaffing is one of the causes that underlie elder abuse and neglect in nursing homes: reports NursingHomeAbuseGuide.org. Research shows that when staff are overworked and stressed, patients have a higher risk of bedsores, dehydration, malnutrition, weight loss, pneumonia, and infections. The exhaustion that accompanies working in short-staffed conditions can result in mistakes and failures to notice adverse changes in patients’ health. Moreover, frustration that comes from overwork can lead to intentional or unintentional mistreatment.

Tips for Choosing a Nursing Home

Because the current rating system doesn’t guarantee a nursing home is adequately staffed, families of the elderly should investigate candidate facilities thoroughly when the need for placement of a loved one becomes apparent. Assistive Living Today provides the following tips in choosing a home:

⋅    Instead of scheduling a visit, make a surprise visit to get an idea of cleanliness and quality of care. If the facility looks promising, make at least two additional trips to observe meals and activity sessions.
⋅    Check the public record for violations of state code. Note the type of complaints to see if they are related to serious issues.
⋅    Conduct research to see what licenses are required in your state, and ask the facility to show you its credentials.
⋅    Observe the residents to see if they appear happy, well-groomed, and actively engaged.
⋅    Pick a facility that doesn’t have a strong odor. Don’t be fooled by a strong deodorizer scent that may be masking the smell of urine and excrement.
⋅    Ask the facility if it has dieticians and if they can accommodate special dietary needs.
⋅    Since activities are important, inquire whether an activities director is on staff, and find out whether outdoor activities are included.
⋅    If your loved one has a condition requiring special care, such as Alzheimer’s disease or diabetes, ask if the staff has experience in these areas.

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THOSE ARE OUR PARENTS YOU ARE IGNORING

WATCH The Elder Abuse Reform Now's Documentary, THE UNFORGIVABLE TRUTH

The EARN Project website

Lawsuit alleges Roseville nursing home and others understaffed on purpose – to increase profits

A recently filed lawsuit alleges Roseville Point Health & Wellness Center knowingly understaffed to save money. 

This case is among 15 class action lawsuits alleging purposeful understaffing at 15 nursing homes around California filed by elder abuse law firm Garcia, Artigliere & Medby and The Arns Law Firm, which represents workers and their families.

Aside from the 98-bed Roseville facility, the 14 other facilities are mainly located in Southern California and the Bay Area.

The Roseville lawsuit, filed on behalf of petitioner Diane Bechtold, a resident at the center, alleges the understaffing is “chronic and intentional” and an “effort to pocket unearned profit.”

The lawsuits name a number of defendants, including Shlomo Rechnitz, California’s largest nursing home owner, and Rockport Administrative Services LLC, a consulting company with a number of Rechnitz’s facilities as clients.

“This violation of each resident’s rights was directed and implemented at the mandate of the managers and owners of the facilities, Rockport Administrative Services and Shlomo Rechnitz, and his multiple layers of affiliated companies,” the lawsuit claims.

According to Mark Johnson, from the firm Hooper, Lundy & Bookman PC, representing Rockport, the consulting company provides services to skilled nursing facilities “including oversight of compliance with applicable staffing requirements.”

“Importantly, none of the lawsuits allege any harm to the residents of facilities which Rockport serves,” Johnson said. “Roseville Point Healthcare and Wellness Center … is in full compliance with applicable staffing laws including the increased staffing levels required as of July 1, 2018. In fact, its compliance has been confirmed during standard annual audits conducted by the California Department of Public Health.”

The health department could not immediately provide information about compliance with staffing requirements at the center.

Documents sent by Johnson appear to show the California Department of Public Health reported the Roseville facility had zero days of non-compliance with required staffing levels in 2016. The health department could not immediately authenticate the documents.

Glaser Weil trial lawyer Jill Basinger, representing all of the defendants in the lawsuits except Rockport, claims the nursing facilities “not only maintain the state required 3.2 nursing hours per patient day, they even exceed them.”

Staffing requirements

Whereas previously, 3.2 nursing hours per patient day was the minimum numeric staffing ratio required in a skilled nursing facility under state law, as of July 1, 2018, the new minimum required ratio is 3.5. 

The terminology “hours per patient day” refers to the amount of direct nursing care hours needed to care for a hospital or facility’s patients.

Adequate staffing is a right ensured to patients in a skilled nursing facility under California’s Patient’s Bill of Rights.

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Lawsuit alleges Roseville nursing home and others understaffed on purpose – to increase profits