Legal considerations for assisted living facilities.

AuthorYang, Y. Tony
  1. BACKGROUND II. ALFS VS. TRADITIONAL NURSING HOMES III. LEGAL ISSUES IV. STATE REGULATION AND LICENSURE A. State Regulation of Licensure B. State Regulation of Standards of Care C. State-Created Causes of Action V. TORT LAW VI. CONCLUSION I. BACKGROUND

    The elderly population in the United States will expand drastically over the next few decades; indeed, the number of persons aged 65 or older is expected to swell to approximately nineteen percent of the nation's population by 2030--a staggering statistic in light of the fact that the present population of elderly people constitutes fewer than 13 percent. (1) Largely because of this fact, long-term care for this population is becoming increasingly important. Traditionally, elderly persons that lost the ability to fully care for themselves would enter a healthcare facility known as a nursing home. (2) However, a relatively new alternative exists in the form of the assisted living facility ("ALF"). (3) ALFs are the fastest growing form of residential care for the elderly. (4) Between 1998 and the present, the total number of ALFs in the United States increased from around 11,459 to nearly 40,000. (5) This option originated as a "market response to emerging demographic trends ... and consumer demands," and as such, is expected to bear the brunt of the expected growth in elderly populations. (6)

  2. ALFS VS. TRADITIONAL NURSING HOMES

    Traditional nursing homes and ALFs differ in a variety of ways. Most prominently, traditional nursing homes provide a much higher level of care for elderly patients typically incapable of living on their own. (7) This manifests in substantial supervision over patients, most of whose physical or cognitive impairments are advanced enough to require such a level of care. (8) In comparison, ALFs typically allow patients a far greater degree of independence than their nursing home counterparts, while still maintaining an appropriate amount of supervision. (9)

    ALF residents do not generally require the high levels of care that are typically associated with nursing home patients; as such, they usually conduct themselves with a certain level of autonomy. However, most ALF residents do suffer from physical or mental limitations: for example, more than half of ALF residents require bathing assistance. (10) Because of this, ALFs typically provide a range of services that promote quality of life and independence, including personal care, meals, medication management, social services, social interaction, transportation, laundry, housekeeping, and emergency response. (11) Essentially, ALFs bridge the gap for seniors between purely independent living and traditional nursing homes.

    Although ALFs and nursing homes are the most prominent elder residential care facilities, independent living facilities deserve a brief mention. These are facilities for seniors who require the least amount of medical care and desire independence and community living; independent living facilities might offer full apartments in a community setting. (12) They "are most appropriate for seniors who do not need assistance with daily activities, such as dressing or bathing." (13) These facilities provide shared activities and meals in a community setting, and also offer other amenities like transportation and housekeeping.

  3. LEGAL ISSUES

    ALFs face a distinct set of legal issues similar to other healthcare or residential care facilities like nursing homes and hospitals. However, as a relatively modern concept, the body of law governing ALFs is considerably less developed than traditional concepts like nursing homes. The legal concerns in this area stem primarily from state laws licensing and regulating ALFs, (14) although there are various statutory and common law tort issues that arise in relation to caring for individuals with impairments.

  4. STATE REGULATION AND LICENSURE

    To understand the role that states play in regulating ALFs, it is important to first realize that assisted living is "not defined in any meaningful way by federal law." (15) Furthermore, the federal government plays a very limited role in setting standards that govern ALFs; the process is primarily controlled by the states. (16) Although the federal government does little to regulate these entities, it does affect assisted living through funding. (17) The federal government helps to pay for assisted living through Medicaid's Home and Community-Based Services. (18) In light of the growing elderly population, federal Medicaid spending on assisted living is likely to increase dramatically, though federal authorities have remained hesitant to regulate the field. (19)

    Both the definition of assisted living and the ALFs regulatory scheme vary from state to state. (20) Moreover, ALFs receive significant funding from their residents, thereby requiring a smaller contribution from the federal government, relative to other care facilities. (21) Medicaid defrays nursing home costs for eligible patients. However, as mentioned, federal spending related to assisted living is increasing. (22) Not only is Medicaid implicated, but so too are housing and veterans subsidies, as well as some short-term Medicare coverage. (23)

    Regardless of federal funding, the primary responsibility for assisted living regulation remains with the states. As such, all states affirmatively regulate ALFs in some capacity. Regulation can generally be grouped into three basic categories: (1) states that regulate ALF licensure, (2) states that regulate ALF standards of care, and (3) states that create a cause of action against ALFs. (24) Many states also have so-called "elder abuse" or "vulnerable adult" statutes that affect ALFs to varying degrees. (25)

    A. State Regulation of Licensure

    States that regulate licensure often make the type of individuals ALFs may treat the focal point of their licensing regulations. There are a couple of methods of accomplishing this; namely, states can either become "single-level" states or "multilevel" states. (26) In a single-level regime, a state will license just one type of ALF, which is typically entitled to accept or keep any resident, so long as the resident does not have a health condition that under the regulations would foreclose his treatment at an ALF. (27) Examples of single-level states include Connecticut, Illinois, Indiana, Iowa, and Massachusetts. (28)

    Multi-level systems seem to be trending. In a multi-level regime, "some [ALFs] are licensed to care for residents only up to a particular care need." (29) Carlson indicates that these might be classified in a number of different ways--perhaps as simply as "low, moderate, and high." (30) Under this regime, a resident can live in a particular "level" ALF up to and until his care needs exceed those provided for under that particular ALF's license. At least sixteen...

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