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The 'risky business' of acuity creep in assisted living

By Rhonda DeMeno | March 15, 2023

The assisted living industry is expected to accommodate a burgeoning resident population over the next 10 to 20 years.
Health and Benefits

The assisted living industry is expected to accommodate a burgeoning resident population over the next 10 to 20 years. The driving force for this growth is due to the baby boomers, 57–75 years old, who now represent 21.19% of the U.S. population.

Assisted living is the fastest growing segment in long-term care. Consumer Affairs reports that seven out of 10 people will require assisted living care in their lifetimes. Currently, 810,000 people are in assisted living communities. The National Investment Center of Seniors Housing & Care (NIC) research indicates that the U.S. will need almost 881,000 new communities by 2030 and 986,000 by 2040.

Along with these staggering statistics is the heightened awareness of residents’ increasing health care needs and a trend of increasing acuity. Many factors contribute to increasing acuity levels, including residents’ expectations to age in place, expectations to stay in an independent and least restricted environment, residents or families avoiding higher levels of care that have more significant costs and stigma regarding care, and assisted living communities failing to recognize resident changes in condition in a timely manner.

Families and/or residents will often retain private duty aides in addition to the existing associates, a practice that can cause an unrepresented reality of the true level of care a resident requires for activities of daily living (ADL), memory care support or ongoing medical assessments.

Assisted living settings — establishing expectations on care capabilities

The definitions of senior living or senior housing options (e.g., independent living, continuing care retirement communities (CCRC), assisted living communities, skilled nursing communities) are set and governed by state law and federal regulations. State governments regulate assisted living communities; these regulations are different from nursing homes. Nursing homes or skilled nursing are regulated by federal government regulations.

Many assisted living providers offer a tiered approach for daily care and services.

When a resident’s needs for ADL assistance increase, the tiered approach allows residents to pay for additional assistance. It is important to note that 50% of assisted living residents have three or more chronic conditions, and 42% have Alzheimer’s or other dementia-like diagnoses.

The average length of stay in assisted living communities is 22 months. As residents’ care needs become more intense, most assisted living residents will move to a higher level of care, nursing home or skilled nursing level of care.

Often, the residents and family members will not be willing to move to another level of care because of the increase in care cost, uncertainty about the transition of care options, and because they do not fully understand the risk exposures brought on by a resident’s deteriorating health and/or cognitive status and they may be in denial of the escalating care needs for loved ones. The increase in senior living claims highlights the importance of capturing the correct care level for the resident.

The 2022 WTW senior living claims benchmark study identified the admission process as the most important stage in acuity management — correcting errors made in the placing of residents in the wrong level of care becomes more difficult to manage once the resident is admitted. Risk management has become an increasingly important function for senior living providers. To effectively manage "acuity creep," resident and family expectations must be clearly defined, communicated, agreed upon and managed throughout the resident’s stay, beginning with the resident’s admission process.

Admission process — residency agreements and disclosures

The care given by the assisted living staff must be clearly defined by the signed contract between the resident and the community. The admissions agreement becomes valid when the resident moves in. It remains in place if the person lives in the community.

The assisted living agreement is effective on the date of admission and remains in effect until amended by the involved parties or until terminated by the parties in the agreement provisions.

Assisted living agreement considerations

  1. In developing, revising and reviewing individual resident agreements, providers should consult legal counsel experienced in assisted living.
  2. Many state laws dictate the issue of resident admission agreements and should always be consulted when designing or revising admission agreements.
  3. The admissions agreement clearly defines the terms and conditions of the community care and allows both parties involved to understand the types of care and services the assisted living community provides, such as:
    1. Lodging
    2. Board
    3. Housekeeping
    4. Personal care and supervision according to the state regulations that oversee senior housing certification and licensure
  4. Clear definition of what services are not provided and the limits of care, such as:
    • Significant around-the-clock medical care from a registered nurse or skilled care provider
    • Daily rehabilitation therapy
    • Significant assistance in physical care or care that requires total assistance
    • Management of certain emergency situations
  5. During the resident’s admission process the community must provide a resident and family a residency agreement that clearly communicates:
    • Accommodations/change in accommodations
    • Basic services
    • Meals and snacks
    • Activities
    • Transportation
    • Daily check-in requirements
    • Resident rights health and personal care services
    • Liability for damages
    • Assistance with activities of daily living
    • Resident responsibilities*
    • Rules and regulations*
    • Health needs which the community cannot meet*
    • Advanced directives*
    • Incompetency*
    • Termination of agreement*
    • Excluded services*
  6. In addition to the residency agreement, a tool that can assist in improving communication and full transparency of services, the community should provide a Uniform Disclosure Statement (UDS). The UDS is a legally binding document and an important consumer tool. Not all states are required to administer a disclosure statement, however the form is very effective at filling in the gaps of state rules (such as staffing ratios) and supplements the residency agreement or contract.
    • The UDS is a very effective risk mitigation tool and helps to set realistic expectations for a residents stay.
  7. The community must meet with the resident and family on a regular basis to ensure a thorough understanding of the residency agreement and disclosure.
  8. The initial admission assessment should address resident medical, social and cognitive status.
  9. Resident assessments should be conducted regularly to identify condition changes and needs for a higher level of care and to determine if needs can be safely met.
  10. Create awareness of proactive acuity management at the outset of the family and resident relationship to mitigate unrealistic expectations and to develop a common understanding of resident’s needs and community care capabilities.

Acuity creep indicators

Lawsuits have been filed against assisted living communities due to residents being kept in a setting where the community did not have the staff or clinical capabilities to provide the necessary care for residents and their increasing acuity. Wrongful death suits have resulted from resident assaults, falls, elopements, development of pressure ulcers, mismanagement of medical conditions and the community not meeting the acuity needs of the resident.

In addition, lawsuits have been filed by families and residents when residents are not permitted to remain in the AL setting and age in place. The assisted living community must consider the Fair Housing Act and American with Disabilities Act when planning for a resident transfer to a higher level of care. To protect the community, the resident’s medical record and physician determinations must demonstrate the need for a higher level.

To mitigate lawsuits, communities must recognize common acuity creep triggers.

10 triggers that can be considered acuity creep indicators

  1. Increase in wandering and attempts to exit seek or elopement history
  2. Failure to comply with resident service plan
  3. Noncompliance with community policy and procedures
  4. Increase in falls
  5. Needing 24/7 registered nurse assessment and observation
  6. Physical needs requiring total assistance for positioning, transfer, eating, toileting
  7. Development of decubitus ulcers that require daily dressing changes and extensive wound care services
  8. Aggressive behavior that poses a risk to self and others
  9. Medical management of medications that require daily monitoring of lab reports and clinical assessment
  10. Condition instability of chronic disease

Most often residents are admitted to an assisted living community directly from home. Communities must therefore rely heavily on healthcare provider history, physical examinations and anecdotal information obtained from the family and resident. If the community identifies concerns about the resident’s eligibility and/or its ability to meet the resident’s needs for care, it may be beneficial to trial a respite stay and assess the risk and benefits of the stay to determine how the resident performs and acclimates to the assisted living setting.

Transition discussions

Many times, a resident’s medical or cognitive status dictates the need for additional care and services that require an increased level of care outside of the assisted living community. These discussions are often difficult, but if done on a timely and regular basis, family members or responsible parties can make better informed decisions and allow for a planned approach to alleviate any unexpected circumstances or sudden changes to the resident service plan or discharge plans. Transition discussions should include:

  • Service plan conferences done at least quarterly or more often if the resident’s condition is unstable
  • Educating resident and family on where the resident falls on the acuity scale or tiered services
  • Expectation management on behaviors, fall management and service plans
  • Following state guidance, regulation and transfer rules
  • Educating resident and family to resident risk exposures and acuity creep indicators

Risk mitigation and acuity creep concepts

  1. Evaluation of staffing levels and clinical care capabilities
  2. Evaluation of training to ensure it is adequate to resident needs and demographics
  3. Modifications to resident rooms and such resident equipment as grab bars and specialty durable medical equipment
  4. Life enrichment programs with specialized trained professionals in memory care
  5. Technology solutions for fall management, resident room monitoring, medication management and staffing systems
  6. Open communications with residents and family on acuity creep
  7. Development of a comprehensive set of polices to mitigate such high-risk situations as falls, elopement, medication management
  8. Conducting routine rounds and weekly transition meetings to discuss findings and residents who have had recent hospitalizations, emergency room visits and other reportable events
  9. Review of all private duty assignments as the need for 24/7 private duty assistance may be an indicator that the resident needs continual care and observation
  10. Training admissions and marketing staff on not over selling or over promising services; the community website should clearly communicate the services that can be provided
  11. Knowing state regulations and considering use of arbitration agreements, dispute resolution procedures or negotiated risk agreements or waivers when the resident engages in behaviors that are not compliant with their service plan
  12. Consulting legal counsel to determine the best approach to managing litigation threats and supporting a defense strategy
  13. Monitoring adverse and reportable events

A gradual shift is taking place that is changing the nature and population of seniors in assisted living and senior living. The shift has resulted in a need for more services, more supervision and an increase in medical attention.

Assisted living communities must address rising acuity creep among residents and become proactive to ensure a safe living environment for residents as well as to secure risk mitigation techniques to manage legal implications and exposures associated with acuity creep and the ever-changing care needs of their residents.


*Areas representing high areas of risk, areas that often cause liability concerns and can be triggered by resident acuity creep


Willis Towers Watson hopes you found the general information provided in this publication informative and helpful. The information contained herein is not intended to constitute legal or other professional advice and should not be relied upon in lieu of consultation with your own legal advisors. In the event you would like more information regarding your insurance coverage, please do not hesitate to reach out to us. In North America, Willis Towers Watson offers insurance products through licensed entities, including Willis Towers Watson Northeast, Inc. (in the United States) and Willis Canada Inc. (in Canada).


Director Clinical Risk Services -Senior Living Center of Excellence

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