Rising Malpractice Claims in Assisted Living: A Stark Incentive for Robust Aging-in-Place Planning

A recent report from the Nurses Services Organization and CNA Financial Corp. reveals a troubling 32% increase in malpractice claims against assisted living nurses from 2018 to 2023, with claims frequency rising to 0.71 per 100 beds and average severity reaching $284,000. Common allegations include falls (28%), pressure injuries (17%), and wrongful death (15%).  A majority of nurse professional liability claims involved treatment/care allegations (56.2%). The second most frequent category of allegations involved patients’ rights/abuse/professional conduct claims (18.2%). These trends, highlighted in McKnight's Senior Living article on October 2, 2025, underscore systemic vulnerabilities in institutional care settings, where understaffing and complex health needs heighten the risk of neglect and errors. Among the drivers of these claims is "increasing resident acuity," specifically  "acuity mismatches." 
Acuity and Acuity Mismatch
In healthcare, acuity refers to the severity or complexity of a resident's health needs, encompassing physical, cognitive, and emotional conditions. An acuity mismatch occurs when a resident's care needs exceed the capabilities, resources, or staffing levels of the assisted living facility in which they reside. In the context of the CNA report, acuity mismatches arise when facilities accept or retain residents with complex conditions, such as advanced dementia, severe mobility limitations, or chronic illnesses requiring intensive medical oversight, without adequate staff training, numbers, or infrastructure to provide appropriate care. 
A resident with significant cognitive impairment, for example, might require one-on-one supervision to prevent falls or wandering.  An understaffed assisted living facility, however, may lack the personnel or specialized training to meet these needs. This mismatch can lead to neglect, errors, or inadequate monitoring, resulting in incidents like falls,  pressure injuries, or even wrongful death.  These outcomes comprised the vast majority of claims in the study. 
How Acuity Mismatches Drive Malpractice Claims
Acuity mismatches contribute significantly to malpractice claims because they create conditions where care failures are more likely:

• Inadequate Staffing: Facilities often operate with low staff-to-resident ratios, unable to meet high-acuity needs. For instance, a resident requiring frequent repositioning to prevent pressure sores may be neglected if staff are stretched thin, leading to costly claims averaging $284,000.

• Lack of Specialized Training: Nurses may lack expertise in managing advanced dementia or complex medical conditions, increasing risks of errors like improper medication administration or failure to recognize warning signs.

• Facility Misalignment: Assisted living communities are designed for residents needing moderate support, not intensive medical care. Unfortunately, care needs change.  Accepting or retaining high-acuity residents without transferring them to better-oriented assisted living facilities or skilled nursing facilities can result in injury and claims.

• Regulatory Gaps: While states like Missouri have tightened oversight with 2025 laws mandating better staffing and reporting, enforcement varies, and many facilities struggle to comply.  Facilities failing to comply with standards and regulations may leave residents with less capable staff that might be necessary to meet individual and collective needs, heightening malpractice risks.

These mismatches directly fuel claims, as families pursue legal action when loved ones suffer harm due to preventable oversights. The 32% rise in claims frequency reflects how acuity mismatches, combined with other institutional challenges, like staffing or training deficits, create a perfect storm of liability in assisted living settings.
For readers of the Aging-in-Place Planning and Elder Law Blog, this surge serves as a powerful incentive to prioritize home-based strategies that minimize exposure to such hazards inherent in institutional care. As discussed in our "Rethinking Elder Abuse Strategies: How Prophylactic Planning Can Safeguard Autonomy and Aging in Place," proactive tools such as trusts and powers of attorney can help avoid institutional pitfalls altogether. This article examines the report's findings and offers practical guidance for leveraging aging-in-place planning to mitigate these risks.The CNA Report: Escalating Risks in Assisted LivingThe study, analyzing claims data from its Aging Services program, attributes the rise to chronic staffing shortages, exacerbated by post-pandemic turnover, and to residents with higher care needs, such as those with dementia or mobility issues. Falls remain the top claim, often linked to inadequate supervision, while pressure injuries highlight gaps in routine care. Wrongful death claims, though less frequent, carry the highest severity, resulting in significant payouts due to allegations of negligence. Industry leaders like Argentum note that these trends reflect broader challenges, including regulatory pressures and workforce deficits, which could lead to higher insurance premiums and operational costs for facilities.
For consumers, this means that assisted living, once viewed as a safe middle ground between independent living and nursing homes, now carries growing liabilities and risks. The report recommends enhanced training, improved risk assessment, and technology integration (e.g., fall-detection systems) to curb claims.  Still, these fixes don't eliminate the inherent risks and uncertainties of institutional environments.Why the Findings Incentivize Aging-in-Place PlanningThe rising number of malpractice claims is a wake-up call: institutional care, despite regulations, remains prone to human error and systemic flaws that can result in harm and legal battles. These risks are not unique to nursing homes. Aging in place offers a compelling alternative, allowing seniors to control their environment and care, reducing risks like those highlighted in the CNA report. By planning ahead, you can avoid the emotional, physical, psychological,  legal, and financial toll of facility-based mishaps, preserving autonomy.
Key incentives from the report:

• Reduced Exposure to Neglect: Home settings minimize risks through targeted modifications like grab bars or smart sensors, unlike understaffed facilities.
• Customized Care: Family or vetted caregivers can provide personalized attention without the acuity mismatches driving claims.
• Financial Savings: Avoiding high-severity incidents cuts potential medical and legal costs, redirecting funds to home supports.

Practical Strategies: Building a Resilient Aging-in-Place PlanTo harness this incentive, integrate elder law tools into your planning strategy. Establish trusts, advance directives with supported decision making  (SDM), dementia, aging in place, and guardianship directives.  Consider powers of attorney with safeguards. Include health care powers of attorney to outline home-based preferences and prevent forced institutionalization.
Invest in aging-in-place planning technology, medical devices, and security devices and monitors to secure home caregiving. These steps not only mitigate malpractice risk and dangers but also align with the CNA's call for better preparation in senior care.
While this article has provided a thoughtful examination of the rising malpractice claims in assisted living and their role as an incentive for aging-in-place planning, it is by no means comprehensive. The landscape of care risks evolves rapidly, influenced by staffing trends, regulatory changes, and individual circumstances that no single resource can fully capture. Readers, therefore, must remain vigilant, continuously educating themselves through reliable sources like CNA reports, AARP, local elder law attorneys, and this Blog, while regularly evaluating their personal situations to identify potential risks. By combining awareness with tools such as legal safeguards, caregiver screening, and home modifications, seniors and their families can better safeguard independence and thrive as they age in place. For ongoing support, consult a professional and stay informed.  Your security depends on proactive engagement.

HHS Drops Appeal on Nursing Home Staffing Rule: A Setback for Care Quality and a Boost for Aging in Place Planning

In a quiet but seismic shift for long-term care, the U.S. Department of Health and Human Services (HHS) has dismissed its appeals in two key federal cases challenging the Biden-era nursing home staffing minimums rule. Filed in the Fifth and Eighth Circuit Courts of Appeals, these dismissals, announced in late September 2025, effectively concede the rule's fate, leaving the sector without enforceable national standards. For Ohio and Missouri families committed to aging in place, this development underscores the urgency of proactive planning: while nursing homes grapple with understaffing risks, aging-in-place strategies can help safeguard independence and assets from institutional pitfalls.

Recapping the Rule and Its Rocky RoadAs we discussed in our April 2025 blog post, "Federal Judge Blocks Biden-Era Nursing Home Staffing Rule: Implications for Care Quality and Families," the rule, finalized by CMS in April 2024, aimed to mandate 24/7 registered nurse (RN) coverage and at least 3.48 hours per resident day (HPRD) of total nurse staffing in Medicare/Medicaid-funded facilities. Rooted in the Federal Nursing Home Reform Act (FNHRA), it sought to combat chronic shortages exposed by COVID-19, where understaffed homes saw hospitalization rates spike 20–30% higher and physical and chemical restraint use climb due to overburdened aides.
The rule faced immediate backlash from trade groups like the American Health Care Association (AHCA) and states like Texas, which sued in May 2024, claiming HHS overstepped its authority under the Social Security Act. U.S. District Judge Matthew Kacsmaryk's April 7, 2025, ruling in Texas vacated core provisions, calling them a "one-size-fits-all" overreach that ignored the realities of rural areas and the variations in acuity of residents. Similar blocks followed in the Eighth Circuit. HHS appealed both, but with mounting opposition, including from 20 additional states and projected facility closures of 10–15% in underserved areas, the agency has now withdrawn, signaling a pragmatic pivot amid political and fiscal headwinds.The Bigger Picture: Understaffing's Toll on ResidentsWithout federal minimums, the U.S.'s 15,000+ nursing homes, serving 1.2 million residents, 60% Medicaid-funded, revert to patchwork state oversight. Studies we cited earlier, like the 2021 Health Affairs analysis, link adequate RN staffing (0.75 HPRD) to 15–20% fewer hospitalizations and infections. A 2022 CMS report tied understaffing to elevated COVID mortality, while a 2019 Gerontologist study showed it doubled chemical restraint use—violations of FNHRA rights affirmed in the Supreme Court's Talevski decision (2023).
For families, this means heightened risks of neglect, pressure ulcers, falls, and emotional distress, amplifying the emotional and financial strain of facility care. In Ohio, where Medicaid's $527 million nursing home shortfall (2024–2025) already strains resources, the absence of national standards could exacerbate closures in rural counties, displacing residents and pressuring families toward costlier private-pay options ($100,000+/year).Elder Law Ramifications: A Crack in ProtectionsThis retreat leaves elder law attorneys navigating regulatory quicksand. Without binding federal floors, litigation for substandard care relies more heavily on state surveys (e.g., Ohio's biennial inspections) and facility-specific plans, tools that often fall short due to underreporting (57% of falls go undocumented, according to AHRQ). Families may lean on ombudsman programs, but these are overwhelmed, handling just 20% of complaints effectively.
Critically, the ruling disrupts Medicaid planning, where irrevocable trusts shield assets during the five-year lookback period (42 U.S.C. § 1396p(c)), thereby preserving eligibility without a spend-down. Understaffing could trigger more penalties or denials, forcing asset liquidation and undoing trusts, echoing cases like Bartley Healthcare v. Ott (N.J. Super. App. Div. 2025), where facilities targeted family POA holders for "breaches" in Medicaid pursuit. In Ohio, filial responsibility (R.C. § 2919.21) remains criminal and narrow, but nursing homes may exploit contracts to claw back costs, threatening protected assets.A Silver Lining: Reinforcing Aging in Place StrategiesAs we noted in April, this saga highlights why aging in place, with structured home and community care, is a resilient alternative to institutional care in facilities. With nursing homes facing 15–20% staff turnover and quality dips, families can pivot to rigorous home-based healthcare and, when necessary, utilize Ohio's PASSPORT waiver (available to applicants with income under $2,901/month in 2025) for in-home aides, thereby avoiding FNHRA gaps altogether. Pair this with Medicare Advantage plans' supplemental benefits (e.g., $100–$300/month flex cards for home mods) to fund grab bars or telehealth, delaying institutional needs, and a family has a toolbag of options necessary to avoid institutional care.
Elder law tip: Review trusts now to include home care contingencies, and document POA limits to shield against facility pressures. The Talevski precedent still empowers suits for FNHRA violations, such as undue restraints; use it proactively.Looking Ahead: Advocacy in Uncertain TimesHHS's dismissal highlights the tension between care ideals and workforce realities, potentially stalling reforms until 2026 or beyond. Practitioners must monitor the Federal Register for state waivers or CMS updates, while counseling clients on their rights under the remaining federal baselines (e.g., 8-hour RN coverage).
For Ohioans and Missourians, this is a call to fortify plans. Subscribe to our blog for updates on staffing litigation or virtual workshops (e.g., our recorded "Aging in Place Essentials" at bit.ly/Aging-in-Place-Workshop). Contact OSHIIP (1-800-686-1578) for Medicare guidance, and consult an elder law attorney to align trusts with home-focused care. Aging in place isn't just viable—it's essential when facilities falter. Let's build resilience together.