GRAY MATTERS: Beware 'assisted living' that's just an apartment

Over the past few years, Newsday has documented horror stories about assisted-living facilities, which, unlike nursing homes, remain largely unregulated in New York State.

But here's a tale of a bizarre twist in the law that should make families doubly careful about where they place loved ones. Specifically, beware of apartments that masquerade as assisted-living facilities. New York law and some courts have permitted this subterfuge or failed to enforce health, safety and even housing laws.

It's a Catch-22. The facilities, which often call themselves "senior apartments," are not licensed as health-care facilities. And because they are unlicensed they can't be held responsible for the injury or death of a resident, as is the case with assisted-living facilities that are health-care facilities. So, like with the original Catch-22, this situation could be deadly.

Such was the result in the case of James Reinhardt, 74, of Brooklyn, who died in a supposed assisted-living facility that didn't call itself one. A jury found the facility "negligent" in his death, but jurors were unable to get the full story of the corporate subterfuge because of a judge's ruling that Reinhardt died in his "apartment" and not in an assisted-living facility.

The case was tried in Kings County Supreme Court in January. Reinhardt, a retired longshoreman and World War II Navy veteran, had lived alone for a number of years until he was placed by his family in a purported assisted-living facility, Sunrise at Mill Basin in Brooklyn, because he was suffering from mild to moderate dementia.

He arrived there on July 10, 2002. A week later, after a morning drink of cranberry juice, Reinhardt wanted more and drank the red liquid someone left sitting on a counter in his kitchen.

What he drank was cleaning fluid with lye. In a few days, Reinhardt was dead. The jury's choices were narrowed by the court's charge, but it found Sunrise negligent and awarded the family

$3 million for pain and suffering. There were no punitive damages, however.

Even the $3 million award may not stand up on appeal, said one of the family's lawyers, John Dalli of Mineola. One reason, according to Dalli, is that the judge, Martin Solomon, "held that since Sunrise is not licensed as a nursing home or a residential health facility, we were not entitled to present information to the jury concerning staffing levels."

The Sunrise facility, one of 15 owned by the company in the New York area, has about 200 apartments, and Reinhardt's family was paying $5,000 a month for his apartment. Dalli said Reinhardt's family was told that he would receive all the assisted-living services he would need. But as sworn depositions in the case showed, the professional staff was small and aides with little training were supposed to watch over Reinhardt.

When Sunrise at Mill Basin opened in February 2002, its first executive director was Desiree Krajnyak-Baker, who testified that she had been a certified assisted living administrator as a result of a 40-hour home-study course, but she had let her certificate lapse. She also testified that only a couple of nurses were available for the entire facility.

Sunrise marketed Mill Basin and other such facilities as "assisted living," said Dalli. But in 2004 the company insisted to Newsday reporter Dawn MacKeen that such facilities are merely apartments for seniors, and therefore not subject to licensing.

That may be a reason why Sunrise, with revenues of nearly $2 billion in 2005, changed its name in 2004 from Sunrise Assisted Living to the broader Sunrise Senior Living. Based in McLean, Va., Sunrise is the nation's largest-assisted living chain. But as MacKeen reported, Sunrise insists it needed no license because health care at facilities such as Mill Basin is provided by a separate entity, Dignity Home Care.

But Dignity, according to Sunrise's Web site, is wholly owned by Sunrise and has the same corporate address in McLean. Thomas B. Newell, paid more than $5 million in salary and stock options in 2005 as president of Sunrise, is also the chief executive of Dignity. Sunrise employees testified that although Dignity provided home health care, Sunrise officials were in charge of operations at the facility.

Dalli said Sunrise provided services to Reinhardt similar to those he would have received in a nursing home, but in using Dignity, "deliberately created a corporate structure to avoid regulation as a nursing home."

Sunrise spokeswoman Meghan Lublin said in an e-mail that Sunrise merely provided the apartment and "non-health-care-related services," such as dining and housekeeping, and that "residents who require health care ... can choose to have care provided."

Sunrise has submitted an application to become licensed as an assisted-living health-care facility under a new law, she added. In fact, only now has the Department of Health begun the process of licensing assisted-living facilities as health-care facilities, a process that involves applying standards such as staffing levels and other regulations; Sunrise at Mill Basin is one of the dozens of such places applying for a license.

Attorney Richard Mollot, executive director of New York's Long Term Care Community Coalition, a patient advocacy and watchdog group, told me that Sunrise at Mill Basin is "a de facto assisted-living" facility "providing health care." He could not say how many similar facilities are presenting themselves simply as apartments.