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.
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.
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.
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.
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.
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:
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).