In Brief: Ensuring Assisted Living Quality Through the Courts: State Policy Issues Regarding a Consumer Private Right of Action

Minimum standards for assisted living facilities are generally enforced through state agencies. Some states have added a private right of action so that assisted living residents can go to court to obtain compensation for injuries and to ensure performance of duties when minimum standards have not been maintained. A private right of action is particularly suitable for injuries such as violations of residents' rights to autonomy, dignity, or privacy, which are not likely to produce large damage awards. Wrongful evictions and denial of visitation rights are examples of the kinds of issues best handled by a private right of action. The purpose of this report is threefold: to identify which states have statutory private rights of action; to assess the efficacy of alternatives to a statutory private right of action; and to recommend the elements needed in order to craft an effective statutory private right of action.

Key Findings

This study examined the statutes of all 50 states and the District of Columbia to determine which have enacted private rights of action and what is contained in those laws. The authors identified 20 states and the District of Columbia as having enacted a private right of action for residents of nursing homes and assisted living facilities. However, these states differ markedly on the following characteristics:

Part I. Scope of the Private Right of Action

• Types of Facilities Covered—Sixteen states and the District of Columbia extend the private right of action to residents in assisted living facilities.
• Types of Plaintiffs—California and the District of Columbia extend the right to sue to residents' representatives, and Georgia and New Hampshire allow any aggrieved persons to bring an action.

Part II. Types of Remedies

• Money Damages—All but two states (Wisconsin and North Carolina) allow money damages as a remedy. Thirteen states and the District of Columbia allow for compensatory and punitive damages.
• Equitable Relief—The 20 states and the District of Columbia allow for equitable relief, such as injunctions and temporary restraining orders, when money will not compensate the injury or when future injurious behavior may result.
• Writs of Mandamus—Only Wisconsin relies primarily on writs of mandamus to force government agencies to enforce standards as a remedy for private rights of action.
• Attorneys' Fees—Five states and the District of Columbia allow only the prevailing plaintiffs to recover attorneys' fees, and eight states do not allow recovery of attorneys' fees at all. Other states allow the prevailing party to recover fees.
• Other Provisions in State Law
  • De Minimis Claims—Maine allows courts to dismiss minor claims of rights violations.
  • Waiver of the Right to Pursue a Legal Claim—Five states and the District of Columbia specifically prohibit a contractual waiver of a right of action.
  • Exhaustion of Other Remedies—Five states and the District of Columbia provide that a plaintiff is not required to exhaust administrative remedies prior to bringing a lawsuit.
  • Notice Requirements—Maine and Missouri require notice to state officials prior to filing a suit.
  • Governmental Aid—New York, West Virginia, and the District of Columbia exempt all or a portion of any award from eligibility determinations concerning public benefits.
  • Cumulative Versus Noncumulative Remedies—In seven states and the District of Columbia, remedies provided under a private right of action are cumulative, allowing other legal remedies to proceed simultaneously with a private right of action.

Part III. Other Potential Legal Approaches to Protecting Assisted Living Residents

Part III reviews the strengths and weaknesses of the following alternative causes of action from a consumer's perspective:

• More Effective Enforcement of Regulations;
• Contract Law;
• Tort Law;
• Landlord-Tenant Law;
• Civil Rights Law; and
• Consumer Protection Law.

Part IV. Arguments Against a Private Right of Action

Industry concerns about the costs of litigation and the potential for "frivolous" lawsuits are briefly discussed in Part IV. In general, such concerns seem unwarranted in light of the small monetary awards that typify cases involving a private right of action.

Part V. Conclusions and Recommendations

The report concludes that the consumer's private right of action:

• is consistent with an enhanced role for consumers;
• is efficient because it cuts through the thicket of uncertainty surrounding potential legal claims; and
• enables consumers to attain the higher level of civil and social rights promised by the concept of assisted living facilities.

Part V includes specific recommendations to state legislatures and officials considering a private right of action for consumers of assisted living services.

Written by Bruce Vignery and Dorothy Siemon, AARP Legal Advocacy Group
Donald Redfoot, Project Manager, AARP Public Policy Institute
December 2000
©2000 AARP
May be copied only for noncommercial purposes and with attribution; permission required for all other purposes.
Public Policy Institute, Public Affairs, AARP, 601 E Street, NW, Washington, DC 20049