1. New laws, policies, and practices are needed to protect assisted living residents.
New laws and policies are needed to ensure that assisted living residents receive adequate care and can exercise their fundamental civil rights. Residents need a voice in advocating for such change.
2. “Assisted Living” should be defined in a meaningful way.
Vague definitions of “assisted living” confuse consumers and lead to substandard care. Unfortunately, the term “assisted living” currently is used to refer to everything from facilities that provide little more than room and board to facilities that provide around-the-clock nursing care. Policymakers should therefore define different types of assisted living facilities to reflect differences in the resident populations those facilities serve, tailor providers’ duties to reflect the type of assisted living care they offer, and require providers to communicate clearly and unambiguously to consumers what type of assisted living care the providers offer.
3. Assisted living standards should be appropriate to the resident population.
Assisted living standards must match residents’ care needs. Facilities should be required to treat residents with respect, accommodate resident choices, and meet resident’s needs. Without strong and enforceable standards, residents are at risk to receive substandard care. Low standards are especially dangerous for residents with higher acuity needs, such as those who also would qualify for nursing home level care.
4. Admission contracts should not take unfair advantage of residents.
Many assisted living providers propose that assisted living standards be set largely by the admission contracts between facilities and residents. It is unreasonable to expect applicants to successfully negotiate for the care they are to receive or the standards the facility is to follow, especially when they cannot predict their future needs. Moreover, although providers often claim that these contracts are “negotiated” by a facility and resident, facilities generally prepare standard contracts and present them to incoming residents on a take-it-or-leave-it basis. To call such contracts “negotiated” is fiction. Such take-it-or-leave-it contracts are particularly objectionable when they make it possible for providers to relieve themselves from responsibility for residents’ care. Instead of taking unfair advantage of residents, admission contracts should explain how assisted living is defined by relevant law, describe the care to which residents are legally entitled, and describe any additional care to be provided (and cost, if any, for the consumer).
5. Assisted living providers should be required to make any reasonable accommodation which would allow a resident to remain in the facility.
State laws should require an assisted living provider to make available all services allowable under its state license. Residents should not be required to transfer out of assisted living and into a nursing home where reasonable accommodations can be made to allow them to remain. Furthermore, residents should not be required to move within an assisted living facility due to a change in their condition; whenever feasible, additional services should be brought to them.
6. Medicaid-eligible applicants and residents should be treated fairly.
Under existing federal law, a Medicaid-certified provider must accept Medicaid (including applicable co-payments and deductibles) as payment in full for Medicaid-covered services. Therefore, a Medicaid-certified assisted living provider is prohibited from requiring or soliciting “supplementary” payments from a Medicaid-eligible resident’s family or friends. A Medicaid-certified provider also should be required to accept Medicaid reimbursement from a resident who converted to Medicaid-eligibility after initially entering the assisted living facility as a private-pay resident. These longstanding Medicaid principles should be applicable consistently in assisted living.
7. Existing laws protecting assisted living residents and applicants from discrimination on the basis of disability should be vigorously enforced.
Assisted living facilities too frequently discriminate in admission and discharge based on disability even when such discrimination is unlawful. Therefore there is a need for active enforcement of residents’ rights, including their rights under federal anti-discrimination laws such as the Fair Housing Act, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act. To make such enforcement a reality, advocacy organizations representing seniors and people with disabilities need to expand community education and client representation efforts in this area.
8. State laws setting standards for assisted living should allow for private enforcement.
Making residents’ rights privately enforceable helps increase compliance with standards of care and can support public enforcement efforts. Residents and their representatives should have the right to enforce states’ assisted living standards through private lawsuits. Expansion of privately enforceable rights under “residents’ bills of rights” and consumer protection laws is also in order. Even with such expansion, however, private enforcement should supplement — not substitute for — government action.
9. States should strengthen oversight of assisted living.
States should use their enforcement authority to protect the rights and welfare of assisted living residents and to ensure that public money spent on assisted living care is properly used. In particular, state regulatory systems should utilize oversight and accountability mechanisms to determine provider compliance with regulatory standards and to prevent avoidable bad outcomes for residents. Core components of regulatory systems are robust licensing standards, effective monitoring systems, active enforcement, strong penalties for violators, accessible technical assistance for providers, and readily available information for the public. In addition, states should actively enforce laws protecting assisted living residents and applicants, including civil rights laws and consumer protection laws.
10. The federal government should strengthen oversight of assisted living.
The federal government should strengthen its oversight and enforcement of quality of care and quality of life in assisted living facilities that receive federal monies, whether those monies are provided through the Medicaid program, the Department of Housing and Urban Development, or any other federal program or agency. In addition, the Federal Trade Commission should enforce federal law that prohibits false advertising and unfair and deceptive trade practices. Similarly, federal law enforcement agencies should enforce civil rights laws and program requirements that protect the legal rights of assisted living residents and applicants. Such enforcement is critical both to protect residents’ rights and safety, and to ensure that federal money is used properly.