Trial Magazine

In the past, families who couldn’t care for elderly loved ones turned to rest homes or retirement homes. Typically, these were local facilities run by community members—people the family knew through church, volunteer work, or school connections. Today, skilled nursing facilities and assisted living communities have largely replaced these rest homes.

In theory, assisted living facilities offer a viable solution for families with semi-independent seniors who need some extra help. These facilities provide companionship, social interaction, and access to nurses and caretakers. In practice, however, many seniors end up in facilities that promise excellent care but fail to meet even basic needs.

As aging baby boomers live longer than previous generations, the assisted living industry continues to grow. But a patchwork of state-specific regulations and limited oversight means families must largely rely on the free market to ensure quality care. Too often, serious neglect goes unaddressed by state or county authorities—leaving it to plaintiff attorneys to hold negligent facilities accountable.

Different Needs, Different Care

Skilled nursing facilities (SNFs) and assisted living facilities (ALFs) differ primarily in the level of care they provide their residents. Patients in SNFs require regular, licensed nursing care and must be certified by a physician as needing skilled care.¹ In contrast, residents in ALFs are generally more independent and need help with only specific daily activities.

Because of these differences, the standard of care also varies between the two settings. Generally, a facility must meet the needs of its residents regardless of the setting. But in SNFs, staff must monitor a resident’s nutritional intake if the resident is at risk for weight loss. In ALFs staff are not required to intervene nutritionally unless the resident has already experienced weight loss or another change in condition. Because staff training and education levels differ by setting, the type of care they provide also varies.

ALFs typically offer support similar to what a home health aide would provide. In SNFs, however, licensed practical nurses (LPNs), licensed vocational nurses (LVNs), and registered nurses (RNs) provide care. Although certified nursing assistants (CNAs) and personal care aides work in both settings, ALFs may have a medication technician as the highest level of supervisory staff, whereas SNFs may require a registered nurse to be in the facility for oversight.

Oversight also differs significantly due to how these facilities are funded. Medicare and Medicaid pay for most SNF care, which places them under federal oversight of the Centers for Medicare and Medicaid Services (CMS).² CMS can fine or restrict new admissions if an SNF violates federal care standards—but only if the facility accepts Medicare.³

ALF residents usually pay out of pocket, with monthly costs ranging from $4,500 to $11,600 depending on where the facility is located.⁴ Some long-term care insurance policies may cover part of the cost, but most Americans do not have this coverage. ALFs are primarily regulated at the state or county level, and oversight varies widely. State agencies can fine ALFs for substandard care, but regulations differ by jurisdiction.⁵

Memory Care—or Marketing?

Memory care—a subset of assisted living—can range widely in quality. Some facilities have truly specialized dementia care units, while others simply designate a locked hallway as “memory care” without additional staffing or dementia-specific training. Families are often led to believe that their loved ones will receive enhanced care, even when the facility provides nothing beyond secured access.

Some jurisdictions, however, require higher standards for designated memory care, often referred to as special care units. These regulations may mandate additional training and staffing. Because these requirements vary by state, it’s essential to review your local regulations to determine what level of care a facility is actually required to provide.

In North Carolina, for example, any facility that wants to operate a special care unit must apply for a license. This license requires more staff, and staff must receive specialized dementia-care training. Facilities must disclose key information to the state and potential residents and their family members, including

• a statement of the facility’s philosophy and mission and how it addresses the needs of residents with dementia, mental health disabilities, and other special conditions
• the process for placement, transfer, and discharge from the unit
• how the facility assesses residents and develops and updates its care plans
• staffing ratios and how they meet residents’ needs
• dementia-specific training
• design and environment features tailored to residents with dementia
• types and frequency of programs and activities offered
• involvement of families in resident care and the availability of family support programs
• additional costs and fees charged to residents for special care.⁶

Even though assisted living facilities are not subject to the same federal regulations that govern SNFs, many states do have administrative codes or licensing rules that outline care requirements.⁷ Review the facility’s license application and annual renewals closely. Your state may require specific labeling—such as “special care unit”— on the license if the facility provides memory care services.

Don’t assume that a facility calling itself a “memory care unit” actually provides specialized care. Likewise, don’t assume that a properly licensed special care unit lacks enhanced training or staffing requirements. It may exceed minimum standards. The details matter. And in a system without consistent federal oversight, many facilities have not been held accountable to the regulations that do exist.

Admissions Aren’t All Alike

Admission procedures for assisted living facilities differ by state and sometimes even county.⁸ Generally, the process begins with a physician certifying that the resident is a proper candidate for an ALF. The facility should then perform a pre-admission assessment to evaluate the prospective resident’s physical and cognitive condition to determine whether the facility can meet their needs.

Facilities use this assessment to create an individualized care plan and determine placement—especially important in memory care units. Some states require a physician to complete the assessment, while others allow a registered nurse or facility administrator to handle it. Depending on local regulations, facilities may need to reassess residents regularly or when there’s a significant change in condition to ensure that the level of care remains appropriate for that resident.

When Care Exceeds Capability

Assisted living often falls apart when a facility keeps a resident whose care needs exceed what it can provide. Aging isn’t linear. One abnormal lab result or simple urinary tract infection can trigger a cascade of problems resulting in delirium, falls, missed meals, dehydration, or wandering.

Without a licensed nurse on staff to assess and respond, these warnings often go unnoticed, leading to serious or often fatal consequences. Medication technicians and personal care aides aren’t trained to diagnose or manage medical issues. They can’t assess when a resident’s condition has changed enough to require a higher level of care.

As residents decline, they may become bedbound, lose the ability to eat or drink independently, suffer from pressure injuries, or develop worsening dementia, and the facility may lack the trained staff necessary to meet those needs.

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Injuries and deaths often result from either the facility’s failing to provide basic care or failing to recognize when the resident’s condition has progressed beyond the facility’s capabilities.

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Assisted living provides custodial care: basic help with daily living activities. Injuries and deaths often result from either the facility’s failing to provide that basic care or failing to recognize when the resident’s condition has progressed beyond the facility’s capabilities. ALFs have a duty to discharge residents when their acuity level increases and they require special care. But because these facilities are usually private-pay facilities, they have a financial incentive to keep residents longer than they should.⁹ The result? Repeated falls, malnutrition, choking incidents, medication errors, and undetected changes in conditions that go untreated.

Families also face pressure. Many resist placing a loved one in a nursing home, and assisted living corporations often exploit that fear, promising families that they will provide care they aren’t equipped to deliver. Most families don’t understand the difference between assisted living and skilled nursing care, and, understandably, want to avoid institutional settings. But too often, facilities fail to reassess residents, revise care plans, or arrange a transfer to a more appropriate setting when needed.

Proving Negligence

Negligence in assisted living facilities often stems from systemic failures—insufficient staffing, inadequate training, and poor oversight—that leads to preventable injuries and death.

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Without a clear federal standard of care, ALF cases hinge on the facility’s own policies and procedures, including whether staff followed them and whether the care met the resident’s needs.

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Proving negligence in an assisted living case differs from bringing a case against a skilled nursing facility. Unlike SNFs, which must follow detailed federal regulations, ALFs operate under less stringent, more ambiguous state-level rules.¹⁰ These rules are often vague, directing facilities only to “meet residents’ needs.” Without a clear federal standard of care, ALF cases hinge on the facility’s own policies and procedures, including whether staff followed them and whether the care met the resident’s needs.

Inadequate training and responses. Most ALFs don’t have licensed nurses on-site.¹¹ Instead, a medication technician may serve as the primary care coordinator or supervisor in charge. In one of my recent cases, a resident choked to death because no one on staff knew how to perform the Heimlich maneuver. When emergency responders arrived, they found staff administering CPR on a conscious woman who was struggling to breathe and had a pulse. The inability to recognize and manage medical emergencies can prove deadly.

Elopement and unsafe care. Elopement—the unsupervised wandering of a resident—poses another serious risk. Untrained staff in memory care units may leave doors unsecured or alarms disabled. A resident can then wander out of the building and freeze to death or drown in a nearby body of water.¹²

Overmedication and chemical restraint. Understaffing frequently leads to overmedication.¹³ Facilities may use medication to manage behavior instead of giving appropriate care. For instance, a resident prescribed Xanax three times a day, plus “as needed” doses, may receive additional medication without clear criteria. What behaviors would warrant an as-needed dose? When staff use medications as a shortcut to manage behavior, the resident may become lethargic, stop eating, fall frequently, or suffer fractures or head trauma. What looks like a natural decline might actually be overmedication due to short staffing and failure to comply with the facility’s own policies.

To identify chemical restraint, examine whether the facility had safeguards in place to prevent overmedication. Request the physician’s specific orders for as-needed medications. Compare medication-administration records with narcotic logs and pharmacy orders. Any discrepancies may suggest sedation misuse or even medication diversion.

Documentation gaps. Because ALFs do not accept Medicare, they often don’t use electronic medical records (EMRs), which is a Medicare requirement. Instead, they rely on handwritten notes and paper charts, which are easier to falsify and harder to track. With no EMR audit trail or Medicare-reported acuity and staffing data, building a case requires more investigative work.

Start at the outcome—a fall, a fractured bone, a preventable death—and work backward. For example, it may seem plausible that a man with dementia fell or became dehydrated due to cognitive decline. But not in a matter of days. These outcomes are rarely inevitable. More often, they reveal a pattern of neglect, inadequate oversight, and missed red flags.

Build Your Case

To build a strong negligence case against an assisted living facility, start with the central question: How could this injury have been avoided? The incident is what brings the case to your office, but why it happened determines the scope of liability and the strength of the claim.

Physician orders and staff training. Examine all as-needed medication orders, which you can find on the resident’s medical chart. Is the order vague? For instance, does it authorize administrating the medication “if agitated”? Or does it specify clear behavioral triggers for administration? While it isn’t necessarily a breach of the standard of care for physicians to use general language, staff must receive proper training, and the facility should provide oversight by a licensed nurse.

Compare the facility’s marketing promises, especially those on its website, with the actual training records of the staff involved with the resident’s care. Training materials and schedules must be available to the state or county social services department, so the facility should also provide them to you. Request training materials, in-service materials, and training schedules during discovery—and be sure to ask the facility’s executive director about them during their deposition.

Budget documents and internal communications. Request the facility’s budget documents during discovery. These records can reveal priorities: Did the facility invest in staffing and training? Or did it focus on maximizing corporate profit? If your case involves understaffing, review the facility’s budget line items to see whether a significant portion of its revenue is allocated to hiring and training staff or to payments to its owners. If training is a concern, examine the budget line for staff training and education—what percentage of total expenses does it represent? Your experts can provide guidance on what level of staffing and training is reasonable for the facility in your case.

Also make sure to request internal communications—emails, faxes, and text messages—related to the resident. These documents can offer valuable insight into how staff responded to the resident’s condition before litigation began. For example, the facility administrator may have emailed the corporate office to request additional staff or to complain that the staffing budget is too low. There may also be emails between the facility and the corporate office discussing the incident that gave rise to your client’s claim.

Care plans and staffing records. In cases involving falls or preventable harm, determine whether the facility created a care plan at admission and whether staff followed it. Then, evaluate whether the facility updated the plan as the resident’s condition changed. The resident’s chart should reflect the original care plan and any updates.

Request payroll records for the relevant time frame and compare scheduled staffing levels with the actual number of caregivers on duty during the incident. This can expose dangerous understaffing.

Surveillance and emergency response. In elopement or injury cases, send a preservation of evidence letter immediately and request all surveillance footage. Also request 911 call records from the local emergency services agency. These calls can provide a real-time account of how the facility responded— or failed to respond—to the emergency and may reveal a broader pattern of similar incidents.

Regulatory reports and state investigations. In many states, like North Carolina, facilities must report unexplained injuries to the state and county departments of social services.¹⁴ Request these reports when applicable. In cases of resident-on-resident violence, you are entitled to request the chart of the resident who injured your client. When requesting the other resident’s chart, look for prior instances of aggression toward staff and other residents, as well as any interventions the facility implemented to protect others from harm. The facility may resist producing the chart, but you are entitled to it through discovery.

Ombudsman reports. Contact your local Long-Term Care Ombudsman. These state employees serve as advocates for residents in assisted living and adult care homes. While they have limited authority, they are often the first to hear complaints and spot patterns of neglect. Develop a relationship with the Ombudsmen—and thank them for their work. Their insight can strengthen your understanding of systemic problems at the facility. They have often received complaints from other residents’ family members, visited the facility to advocate for residents, and likely have a deeper understanding of the facility’s issues and culture than you might.

Former employees as witnesses. Don’t overlook former employees. Ask the facility to identify which employees still work there and which do not. Also find out which employees worked at the facility during the resident’s stay and interview them. Former employees can provide candid, detailed testimony about care practices, staffing issues, and internal culture without fear of employer retaliation.

Every ALF negligence case centers on identifying preventable harm. Dig deep into documentation, policies, staffing patterns, and oversight failures. What the facility failed to do—and why—will ultimately shape both your case and your claim for damages.

Overcoming Common Defenses

In assisted living facility cases, the defense often begins with a familiar narrative: The resident was old, their decline was inevitable, and the case has little value. But many defenses fall apart under scrutiny—especially when they contradict the facility’s own marketing claims. Here’s how to effectively challenge the most common defense strategies.

Defense: We’re not a skilled nursing facility. We just offer assisted living. Most ALFs promote themselves as able to provide comprehensive care in a home-like setting. Marketing materials might trumpet specialized services like “Montessori-based dementia care” and therapeutic environments, but through depositions with the staff, you will likely learn that no one on staff knew what “Montessori” meant—let alone how to apply it.

Facilities cannot publicly promise high-quality, specialized care and then hide behind a lack of training or licensing when something goes wrong. Confront the administrator and regional director with their own admissions documents, website content, and marketing language. If discovery reveals that staff lacked relevant training then the facility misrepresented its capabilities—and those misrepresentations form a foundation for liability.

Ask facility leadership what it told the family about foreseeable changes in the resident’s condition. What plan did it have in place for monitoring changes in acuity? What steps did it promise to take if the facility could no longer meet the resident’s needs?

Defense: It violates residents’ rights to enforce safety measures. ALFs often claim they can’t force residents to comply with safety measures—such as wearing shoes—even when the lack of compliance leads to repeated injuries. In reality, the facility has a duty to problem-solve collaboratively with the resident, their physician, and their family.

If a resident falls repeatedly while walking in socks and refuses to wear shoes, staff must notify the physician and family to find a safe, appropriate solution. The excuse that resident rights prohibit intervention does not hold up when inaction leads to foreseeable harm.

Use the facility’s own policies and procedures to support your argument. Most policies require staff to notify the physician and family when a resident exhibits behavior that could lead to injury. Review state regulations as well. While less comprehensive than those for regulating skilled nursing facilities, ALF rules still typically require care planning and ongoing plan updates.

Defense: Disease progression caused the injury. ALFs frequently argue that injuries and functional decline stemmed from the natural progression of dementia or underlying conditions. But dementia typically follows a predictable course. For example, in one of my cases, a resident with Alzheimer’s fell and broke a wrist due to overmedication and lost mobility, and staff eventually restrained them in a wheelchair—all within 29 days of admission. The facility claimed this was simply the course of Alzheimer’s. However, if a resident with a recent diagnosis of mild Alzheimer’s suddenly relies on a wheelchair within a month of admission—after sustaining injuries, losing weight, and being overmedicated—this timeline does not support natural progression.

Enlist an expert in assisted living, like a nurse or executive director, to testify against that defense. Ask the administrator, corporate RN, or medical director whether it’s medically possible for dementia to progress from mild to end-stage in that amount of time. They will have to admit that such progression is highly unlikely, undercutting the defense’s theory.

Defense: The family should have paid for a higher level of care or kept the resident at home. This common defense tries to shift blame to the family, arguing that they should have arranged for home care, hired private nursing, or placed the resident in a skilled facility. It plays on the family’s guilt and grief, but it does not hold up.

Facilities can’t promise families “a home away from home” with full care and support, then argue the family should have known better than to trust it. Use the facility’s marketing and admissions documents to expose this contradiction. If it promised to provide for all the resident’s needs, then failed to do so, the fault lies with the facility, not the family.

An assisted living facility can be a boon for a senior who needs assistance and should not live alone, but wishes to maintain a degree of independence. Problems arise, however, when the facility encourages the family to keep their loved one there beyond the point at which staff can meet their needs. As with skilled nursing facilities, when corporate ownership prioritizes profit over proper care, the quality of care suffers—and elderly residents bear the consequences. It falls to us, as plaintiff attorneys, to seek the justice our elderly neighbors deserve.

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Elizabeth C. Todd is the founder of Todd Law Offices in Raleigh and Morganton, N.C., and can be reached at etodd@toddlawoffices.com.

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Notes

1. 42 C.F.R. §424.10 (2013).
2. Nursing Homes, Ctrs. for Medicare & Medicaid Servs., www.cms.gov/medicare/health-safety-standards/certification-compliance/nursing-homes (last updated May 27, 2025); Nursing Home Enforcement, Ctrs. for Medicare & Medicaid Servs., www.cms.gov/medicare/health-safety-standards/enforcement/nursing-home-enforcement (last updated Apr. 21, 2025).
3. 42 C.F.R. §483 (2025).
4. Taylor Shuman & Jeff Hoyt, How Much Does Assisted Living Cost?, seniorliving.org, www.seniorliving.org/assisted-living/costs/ (last updated May 13, 2025).
5. See State Regulatory Resources, Am. Health Care Ass’n, www.ahcancal.org/Assisted-Living.
6. N.C. Gen. Stat. §131D-8 (2023).
7. State Regulatory Resources, supra note 5.
8. See Paula Carder et al., Compendium of Residential Care and Assisted Living Regulations and Policy: 2015 Edition, U.S. Dept. Health and Human Services (June 15, 2015), aspe.hhs.gov/sites/default/files/migrated_legacy_files//73501/15alcom.pdf.
9. See Does Medicare Pay for Assisted Living?, Nat’l Council on Aging (May 21, 2025), www.ncoa.org/article/does-medicare-pay-for-assisted-living/.
10. Alison M. Trinkoff et al., Comparing Residential Long-Term Care Regulations Between Nursing Homes and Assisted Living Facilities, 68 Nursing Outlook 114 (2020), www.nursingoutlook.org/article/S0029-6554(18)30441-X/fulltext.
11. Id.
12. See Christopher Rowland et al., Memory Inc., Wash. Post, Dec. 17, 2023, www.washingtonpost.com/business/assisted-living/.
13. Hannah Flamm et al., “They Want Docile”: How Nursing Homes in the United States Overmedicate People with Dementia, Hum. Rights Watch (Feb. 5, 2018), tinyurl.com/mvuh92mf.
14. See, e.g., North Carolina’s and New York’s notification requirements: 10A N.C. Admin. Code 13F.1212 (2018); N.Y. Comp. Codes R. & Regs tit. 18, §§487.7(d)(11) (2023), 488.7(b)(11) (2023), and 490.7(d)(9) (2023).