In recent years, long term care providers faced massive class action lawsuits alleging chronic understaffing. Now, these suits are changing. In July 2017, a first-of-its-kind long term care class action was filed in the Northern District of California that has potentially enormous consequences for providers. The theory of the case: chronic understaffing violated the provider’s duties under the Americans with Disabilities Act (ADA) by preventing residents with disabilities from equal access and enjoyment of the provider’s goods, services, facilities, privileges, advantages, and accommodations.

The plaintiffs in Eidler v. Brookdale Senior Living, Inc. are current and former residents of Brookdale’s eighty-nine  facilities in California. The potential class size is over 5,000 and damages sought exceed $45 Million. There are two classes: residents with disabilities and residents claiming false or misleading statements. The claims invoke the ADA and numerous state statutes governing consumer protection to allege violation of the ADA and failure to deliver the care promised upon admission as a result of inadequate staffing. The allegation of failure to deliver care promised is more typical of long term care class actions, but the claim that understaffing violates the ADA is something new. The plaintiffs claim staffing practices are based on pre-set corporate labor budgets rather than residents’ needs and seek an increased level of staffing.

The crux of the ADA claim is that the provider failed to modify staffing policies, practices, and procedures so that those with disabilities have full and equal access and enjoyment of the facility’s offerings. Evidence used to make the case for understaffing in this context includes examples of residents with disabilities not receiving the care they need for daily living, particularly toileting and eating in a timely manner; slow responding to call lights; problems getting around non-accessible rooms when wheelchair bound; and being excluded from outings due to non-wheelchair-accessible vans. Plaintiffs also allege ADA violations in failure to provide emergency evacuation plans for those with disabilities and the existence of non-accessible physical access barriers throughout the facilities.

There is a common narrative among the named plaintiffs that combines claims of ADA violations and misrepresentation: a resident with a disability is admitted; alleged understaffing impacts his or her ability to receive help with daily living activities, to be transported to activities, etc.; perceived representation upon admission was that the facility would meet resident’s needs; resident additionally experiences an increase in cost of care due to the assistance needed for his or her disability.

Brookdale’s defense seeks to attack the class status or limit the class definition. While it could take quite some time before the Brookdale case is resolved, providers should take steps to prevent piggyback understaffing suits under the ADA by evaluating their compliance regarding transportation, evacuation procedures, physical access barriers and other statutory requirements. Providers should also take steps to prevent understaffing claims generally by referencing these tips to ensure adequate staffing.

Christy Tosh Crider
Baker Donelson
ccrider@bakerdonelson.com

Christy Tosh Crider is chair of the Firm’s Health Care Litigation Group and Women’s Initiative, and head of the Firm’s Long Term Care Group.

Christy concentrates her practice in health care litigation, managing the litigation of numerous health care facilities around the country as well as serving as outside general counsel. She represents the Organ Procurement Organizations and tissue banks in several states, long term care providers around the country, one of the largest behavioral health companies in the country, onsite health centers, and many health care related organizations.

She provides counsel to health care companies on quality assurance, corporate compliance, general business advice and litigation avoidance challenging survey citations, and government investigations.