In 1987, Congress passed OBRA ‘87 (Omnibus Budget Reconciliation Act) which contained the first federal regulations for nursing homes. Not only did the abominable care and abuse of nursing home residents lead to federal regulations, it also led to the rise of the assisted living industry. In the 1980s, facilities championing the term “senior lifestyle” and independent living for seniors began to appear throughout the United States. The assisted living industry overtly preyed upon the public’s fear of nursing homes in offering the families of seniors an environment more like an apartment and less like a health care facility.

Unlike the nursing home industry which is frequently described as one of the most regulated industries in the United States, assisted living operates either free of regulation or subject to nominal regulation only in certain states. In 2010, the National Center for Health Statistics released a study showing that there were 31,100 facilities with 971,000 licensed beds. These facilities provided care to 733,400 residents.

Senior Living Emerges

The aging population in the United States has now given rise to a new marketing oriented venture known as the “senior living complex.”

It should be noted that these facilities are totally unregulated by the state or federal government. Many of these facilities contain so-called “secure memory units” which are basically locked down units where people cannot get out unless they know an electronic code. These facilities have no medical or nursing supervision.

In two cases in which we are currently involved, a resident in a facility went out a backdoor during the nighttime hours. There was no doorbell or alarm on the door. The door could only be activated through the use of an electronic key which the resident did not have with her when she walked out the door. She was found frozen to death outside the door the next morning. The ironic part of this particular case is the fact that the same corporate entity was the subject of an identical lawsuit by this writer in U.S. District Court in 2003.

In another matter we are currently litigating, a resident in a locked down dementia unit attempted to rappel himself down the side of the building when he was able to gain access to a vacant unit that had a 40-foot cable TV wire on the floor. It should be noted that this was his fourth attempt to elope from the facility. This again was a locked down dementia unit in a facility operated by a national chain.

We recently concluded two matters involving the same senior living complex. One involved a death as a result of smoke inhalation caused when a chain-smoking resident set fire to her room. No fire retardant material, smoke detector or fire extinguisher was in the room along with her caregiver who was sound asleep on the sofa when the fire started. The complex had a no-smoking policy but permitted this particular resident to continue to smoke up to 40 cigarettes a day as long as she was “supervised” by an unlicensed caregiver hired by the family.

In a case against the same facility, a resident fell from the third floor window sustaining multiple fractures and severe injuries. When a state investigator was called by the family to investigate whether the facility was providing assisted living services or not, the investigator did not ask and was not told that the third floor has a “locked down dementia unit.”

Residential Care Agreements

These so-called senior housing entities always have a detailed admissions agreement which usually gives them absolute right to determine who can be admitted and who can no longer remain if their mental or physical condition changes. The problem is that empty beds mean less revenue. The incentive is to keep and maintain residents far past the time that they can safely live in that environment.

As litigation did with nursing homes, it is respectfully submitted that private litigation will ultimately lead to a regulatory scheme for senior housing as well.

The safety of vulnerable adults cannot simply be left to a “arm’s length agreement” between megacomplexes with multiple facilities throughout the United States and the family of an individual who is starting to begin a state of cognitive decline.

Jules B. Olsman is president of Olsman, Mueller, Wallace & MacKenzie, P.C. in Berkley. He is the founder and past co-chair of American Association for Justice’s Nursing Home Litigation Group. He is past chair of the negligence law section of the State Bar of Michigan and past president of the Michigan Association for Justice. He is also an adjunct professor at MSU College of Law teaching medical malpractice litigation. For more info or to contact Jules visit www.olsmanlaw.com or call (800) 366-8653.

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