An unspoken epidemic: elder neglect in California’s assisted living facilities

It is estimated that nearly 10 percent of Americans over age 60 have experienced elder abuse in some form or another, whether physical abuse, emotional abuse, financial exploitation or neglect. Yet while coverage of injuries caused by physical abuse and financial abuse is dramatic, the injuries caused by neglect, such as bedsores, falls leading to fractures or head injuries, overmedication, malnutrition or dehydration, are often undetected or swept up in an elder's larger medical picture.

We are all familiar with stories of elder abuse and neglect in nursing homes, yet this type of wrongful conduct may be more pervasive and less publicized in assisted living facilities.

There are approximately 300,000 elderly Californians currently living in assisted living facilities throughout the state. While the laws governing large chain facilities and smaller facilities are the same, the worlds are completely different. Both have their separate horrors and pitfalls.

At first glance, large chain facilities appear to be glossy and hotel-like, and are operated with an eye towards a budgeted net operating income that can be set as high as 40 percent. Decisions that affect resident care are made by people who are watching the bottom line. Staffing is dictated by budget, and staffing level decisions may be made by financial employees and not clinicians who are familiar with elder care issues. This rigid system leaves the staff working at these facilities without authority to do much of anything.

On the other end of the spectrum there are more than 6,400 six-bed facilities in California. These facilities operate in a home that may be owned by an operator with little to no experience in elder care. The owner may hire untrained and unlicensed caregivers to live-in and work around the clock like indentured servants. Absent complaint investigations, six bed facilities are only inspected by the state of California every five years. These facilities often provide minimal care and assistance and often do not follow state regulations in terms of record keeping or documentation of the care given to the residents. As a result, there is less accountability. We have seen residents living in closets, living in locked doors with padlocks, or in a shed in the back yard. This is where people with little means go when they need help with their daily care needs and have nowhere else to go. The conditions can be horrifying.

The common denominator between both types of facilities is that there is an insufficient number of qualified staff in these facilities to meet the needs of the residents. As residents and family members go to greater lengths to avoid moving into skilled nursing facilities, the care needs of the resident populations at assisted living facilities has increased significantly over the years. Folks who were in skilled nursing facilities are now in assisted living facilities. While the acuity of residents has increased, the staffing levels have not.

While the California Department of Social Services Community Care Licensing Division, which regulates assisted living facilities in California, may have good intentions, the agency, like other government agencies, is incredibly underfunded. That means that there is often a significant delay between when complaints are lodged and when they are investigated, meaning the residents and staff who are witnesses to an incident have moved on to different facilities or have died by the time someone comes to ask them about what happened. It also means that the state cannot adequately monitor the facilities to hopefully act as a safety net before the neglect even occurs.

We exclusively represent elders and their families. Over the last 30 years we have filed suit against all types of assisted living facilities in California based on allegations of wrongdoing, whether to an individual resident who was injured, a small group of residents collectively, and in class action cases against major chains.

Whether you are a lawyer reviewing cases or a family member looking at facilities for your loved ones, there are several things that you should consider when evaluating a facility.

Facility Checklist for Attorneys and Families

1. Review CCL website and the licensing file.

2. Scour online resources including for information about quality of care.

3. Talk to other residents/family members and ask to speak to family council members.

4. Look at court records for other lawsuits.

5. Talk to medical providers to find out what care is really needed and not needed.

6. Look into facility staffing. Ask about how the facility is staffed and how decisions are made.

7. Ask questions about basis for fees and their increases

8. Don't sign arbitration agreements

9. Ask about the training of the caregivers especially if it involved dementia. The state requirement is minimal and not sufficient.

10. Keep a paper trail and take photos of anything you have a concern about

11. Call the ombudsman with concerns

12. Just because the facility costs more and pretty doesn't mean it has better care

13. If the rooms or facility smell like urine there isn't enough staff

14. If people are sitting by themselves all over the facility there isn't enough staff

15. Ask about the number of engaging activities. This is critical.

16. Who are the actual owners and who makes the decisions ?

Sadly, there is no room for optimism. Whether you are reading this as an interested member of the bar, a frightened child of an elder, or as an elder yourself, this is our current reality. It is our job to educate ourselves and begin the conversation of how we are going to change this broken system. Lawsuits act as a deterrent. Class actions are a vehicle for systemic change. We must move forward as best we can and as fast as we can because the tsunami is coming.