Untitled, Picture by Daniel Oines.

Virginia’s use of Assisted Living Facilities (“ALF”) is an integral health care service provided to Virginia’s elderly and disabled populations. ALF placements can be arranged by the family or prospective resident who privately pay for the ALF, or Virginia’s Department of Social Services will pay and assist placement for a resident through an Auxiliary Grant (publicly-funded grant). Generally, ALFs restrict admission to persons whose minimal medical issues will not require extensive medical intervention or monitoring. Persons in needs of continuous medical care are typically placed in skilled nursing facilities, also known as nursing homes.

Based on 2014 data, the American Community Survey estimated that more than 1,000,000 Virginians were 65 years and older. An additional 470,000 Virginians fell between 60 and 64 years of age, and another 534,000 were between 55 and 59 years old. Although the majority of the upcoming elderly population will not require ALF services, there is still a substantial number of elder citizens approaching ages where such services would be very beneficial, if not essential to maximizing independence. Even the Virginia Department for Aging and Rehabilitative Services’ 2014 Adult Protective Services Division (“APS”) Annual Report states that “[p]opulation figures alone present an overwhelming future for APS.”

In that same report, there were 866 complaints made to the APS from assisted living facilities. Of those complaints, 286 were substantiated (“… defined as a completed investigation with a disposition that the adult needs protective services.” p. 22, fn 10.) Between the years 2012–2014, the APS received an increase of 1,660 across all categories of cases.

As the population of Virginia ages, it is reasonable to expect that the number of ALFs will expand to accommodate the growing number of elders needing ALF services. However, the capacity of ALF facilities has not increased significantly since 1999. The following data compilation and graphs are taken directly from the Excel files publicly provided by the Virginia Department of Social Services:

chart

Since 2000, the number of licensed ALFs has been decreasing on average, yet the facility capacities has stagnated around 32,000. Over a period of twenty years, licensed ALFs have decreased, yet those still operating are increasing their residential capacities.

With an increasing target population, fewer facilities, the same amount of beds, staffing levels should remain expectantly the same. Since ALFs do not have a specific minimum staffing requirement, each ALF can estimate how many staff members are needed to provide appropriate care, and determine for itself the type of staff members needed.

While staffing flexibility sounds helpful for ALFs to cater the facility’s staffing plan to its residents’ needs, there is evidence to suggest that staff levels are decreasing despite unchanging ALF resident capacities. Comparing the Virginia Healthcare Worker Briefs from December 2012 and December 2015, the number of Nursing & Residential Care Facilities staff dropped from 75,000 jobs to 72,700 jobs.

Although it would be reasonable to assume that this job reduction could be attributed to nursing homes rather than residential health care facilities, the number of certified residents in Virginia nursing homes has, on average, increased between the years 2006–2014. (Data obtained from the Henry J. Kaiser Family Foundation using a trend graph.) A drop in nursing and residential healthcare facility jobs while resident populations in both types of facilities increase suggests that neither category of facilities are sufficiently increasing staff to meet the needs of their residents.

While adult day care centers are growing (50 in 1996; 72 in 2015), and seemingly absorbing some of the market (1,488 capacity in 1996; 3,807 capacity in 2015), much like ALFs, the scope and quality of health care services range from facility to facility. Day care centers only operate during the day, and are not residential facilities. Day care centers tend to serve a different market than ALFs, and do not seem to justify the stagnation in ALF residential capacity as a siphoning source. Instead, the growth of the Adult Day Care Center industry may also be a result of ALF saturation, and the need to place adults in alternative programs that require less medical provision than nursing homes. (See Wilson and Burtch, Jr.’s April 2005, Virginia State Bar, Senior Lawyers Conference article regarding how ALFs were used for a time as an inappropriate gap filler for persons with disabilities and for persons requiring extensive medical issues. Adult day care centers may be the newest form of inappropriate placements much like ALFs were when they were first enacted.)

A recent, high-profile example of how ALFs are not keeping up with internal staffing requirements is the case published in Virginia Lawyers’ Weekly about a 92-year-old man who was alleged to have died from sepsis (life-threatening infection) as a result of developing a Stage IV (worst kind) pressure ulcer. Since most pressure ulcers can be prevented by regular turning and positioning, and can also be treated before ever reaching Stage IV by implementing an appropriate treatment plan, it is highly suggestive that the ALF did not have sufficient staff available to perform timely skin checks and re-position residents as needed (likely scenario), or otherwise had an entirely incompetent nursing staff (unlikely scenario).

Another fairly recent case of ALFs openly avoiding their duty to sufficiently staff their facilities is in the case of Brown v. Emeritus at Wilburn Gardens (Arbitration Decision, December 23, 2013). An 86-year-old resident of an ALF who suffered from dementia and had a history of falls, fell while attempting to board an independent contractor’s bus. Although the ALF is charged with providing sufficient supervision and assistance to its residents according to their needs, the ALF did not inform the bus driver of the plaintiff’s need for assistance when boarding the bus, and did not provide any other staff members to assist her when she attempted to board the bus on her own. The ALF argued that it was unreasonable to expect its staff to watch its residents at all times. But the arbitrator ruled against the ALF and awarded $308,000 to the plaintiff for her injuries.

The provision of individualized healthcare quality to an ALF’s residents is a duty that necessitates appropriate staffing levels. The consistently increasing demographic of adults needing ALF care will bring ALFs to maximum capacity levels, and place additional stress on an already-understaffed sector of healthcare services. Our office expects that the quality of ALF healthcare will continue to deteriorate until the facilities receive and allocate more funding toward hiring additional staff members.

Family members of prospective ALF residents should review potential ALFs for prior regulatory violations, and be sure to visit their loved one as often as possible once admitted to monitor the quality of care.

If you have any questions or wish to contribute to the discussion, feel free to comment on this post. Thank you for taking the time to review this information.

– Tim

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