By Jeffrey J. Downey, nursing home and assisted living abuse attorney, serving Virginia, Maryland and the District of Columbia
In 2018 the General Assembly adopted a resolution requiring the Department of Social Services to regulate independent living facilities. The study recognized that the differences between assisted living and independent living facilities can be misleading. Independent living residents are not required to be physically self- sufficient but are expected to independently manage their care. The Fair Housing Act forbids independent living facilities from inquiring about a prospective resident’s physical or mental status as criteria for admission. (Link)
The study found that independent living residents have been admitting increasing numbers of residents who meet assisted living admission criteria. This can put residents at risk explains malpractice attorney Jeffrey J. Downey who handles civil neglect cases against such facilities. In many ways our long-term care system is the weak link in our overburdened healthcare system, explains Downey. As independent living facilities seek to compete with assisted living facilities, they increasingly recruit patients who require some level of care which the independent living facility is not equipped to provide.
The study suggested various way to address the issue, including a requirement that such facilities register with the Department of Social Services, provide a written agreement to residents and provide a disclosure statement outlining services. The DSS could also develop regulations for such facilities, establish a complaint line and handle inspections.
While independent living facilities are generally not responsible for caring for their residents, where they assume such duties they can be held liable under Virginia law, if they did not provide proper care after assuming such a duty. Nolde Bros. v. Wray, 221 Va. 25, 28, 266 S.E.2d 882, 884 (1980). A duty that does not otherwise exist may be impliedly assumed from Defendant’s conduct. Terry v. Irish Fleet Inc., 296 Va. 129, 818 S.E.2d 788 (2018). Such duties can arise by the simple act of one motorist signaling to another motorist that it is safe to proceed. Cofied v. Nuckles, 239 Va 186, 192093, 387 S.E.2d 493, 496 (1990).
The proposals in this report are a good start as these facilities are not currently regulated, explains Downey. Lack of regulatory oversight means that these facilities can recruit patients who are not actually independent in their activities of daily living. Some of these facilities make use of nurse aide companies who are similarly not regulated or overseen by any licensing authority. This lack of regulatory oversight puts Virginia residents at risk. Please support the efforts of the Virginia Assembly to regulate independent living facilities.
For more information on this issue, or for a free consultation, call the Law Office of Jeffrey J. Downey,
Law Office of Jeffrey J. Downey, PC
8270 Greensboro Drive, Suite 810
McLean, VA 22102