Judge with gavel on table

Nursing homes could find themselves open to civil rights and consumer protection lawsuits if the AARP Foundation Litigation unit is successful in three cases it is currently pursuing against operators. 

Staff attorneys from the litigation unit explained details and strategies of cases in Illinois, Tennessee and West Virginia in which the seniors’ advocacy group has sued a skilled nursing chain and two assisted living operators. Attorneys Kelly Bagby and Benjamin David provided the high-level briefing on the cases on a webinar hosted by the Long-Term Care Community Coalition on Tuesday, pointing out that families of residents have certain expectations about the care that will be provided. 

“People are always under the mistaken belief that [their loved ones] will get individual care,” Benjamin said. “Staffing isn’t devoted to that level. They may be told, ‘We can meet your needs,’ but looking at the size of the staff, that’s impossible.”

Bagby said that the litigation unit’s focus is not on what a facility is doing wrong at an individual patient level that could be seen as abusive neglectful, but rather how to “force” nursing facility companies to change their practices to include “adequate” staffing. In the Illinois case, the AARP Foundation is suing Alden nursing homes, claiming that the company is intentionally understaffing its facilities. 

“You should not be lied to about the staffing levels when you come into one of the facilities,” Bagby said, adding that part of their strategy is to court media attention for its lawsuits. “We believe the decision to understaff is done at a corporate level … and the facilities don’t have a lot of discretion against what the corporation tells them.”

The lawsuit was filed in September 2022. The McKnight’s Business Daily reported at the time that it alleges chronic understaffing in most of the six facilities named, which provided less than 50% of the necessary nursing hours for residents from 2018 to 2020. A company representative “vigorously” denied the allegations. 

Nursing facility staffing needs to be about more than “just warm bodies in a building,” Bagby said, perhaps unintentionally furthering a talking point on quality vs. mere quantity that providers have used themselves against the planned implementation of a federal staffing mandate. 

“They need caring staff who are willing to meet [patients’] assessed needs,” she said. “[Providers} have to train [staff]. They have to be competent. They have to want to be there. What [nursing facilities] are selling is a community where your care needs need to be met.”

Bagby also mentioned that the AARP Foundation is interested in pushing more False Claims Act cases to the US Department of Justice and suggested that webinar participants work with state attorneys general’s offices to identify Medicare and Medicaid fraud that could draw the attention of federal prosecutors.