Assisted Living in Massachusetts: Another Way of Caring

By: Alan S. Goldberg, Esq.

Changes in health care delivery regulation, at the national and local levels, have encouraged the creation of new and different ways of addressing the needs of senior citizens. Because government programs have sought to eliminate financial incentives to take care of senior citizens in nursing homes when serious medical conditions are not present, nursing homes resemble acute care hospitals more and more.

Those who used to be cared for in the semi-residential setting of intermediate care or Level III nursing homes will no longer be able to find such accommodations or to obtain Medicaid program reimbursement for those services in nursing homes. Nursing homes have added sub-acute care in response to the pressure on hospitals to discharge patients who can be taken care of in nursing homes equipped to deliver what used to be thought of as acute care in hospitals. In order to meet the needs of those who require more than an apartment but less than a nursing home, a new category of accommodations, known as assisted living, has appeared and increasingly is where senior citizens who are neither cognitively impaired nor physically disabled are living.

The Massachusetts legislature, reacting to these changes in health care delivery, created a regulatory and certification program for assisted living facilities that is different from the nursing home regulatory and licensure system. On June 1, 1995, Massachusetts began the regulation of assisted living facilities under M.G.L. c. 19D (651 CMR 12.00 and 13.00). The certification process established under the new statute and regulations provides for disclosure and for compliance with requirements likely to ensure that residents will enjoy a safe and supportive living environment, responsive to their social and health care needs.

The Assisted Living Statute, in M.G.L. c. 19D, §1 (651 CMR 12.02) defines an assisted living facility as any entity, however organized, whether conducted for profit or not for profit, which:

• provides room and board;
• directly or indirectly provides assistance with the activities of daily living for three or more adult residents who are not related by consanguinity or affinity to their care provider; and
• collects payments or third party reimbursements from or on behalf of residents to pay or arrange for providing assistance with the activities of daily living.

A long term care facility (commonly referred to as a nursing or convalescent home) is a facility that is either advertised, announced or maintained for the purpose of providing three or more individuals with long-term resident, nursing, convalescent or rehabilitative care; or supervision and care incident to old age of ambulatory persons; or retirement home care for elderly persons (M.G.L. c. 111 § 71, 105 CMR 150). Long term care facilities regulated under M.G.L. c. 111 § 71, hospices regulated under M.G.L. c. 111 §57, continuing care facilities subject to M.G.L. c. 93 §76, congregate housing authorized by M.G.L. c. 121B §39, groups homes under contract with the Departments of Mental Health or Mental Retardation, and certain housing for priests and members of Roman Catholic religious orders, are explicitly excluded from the coverage of the Assisted Living Statute.

Funding for assisted living markedly differs from funding for traditional nursing home care, in that most nursing home care is paid for by the Medicaid program, with the balance being paid for by private funds and by the Medicare program. Assisted living is paid for primarily by private funds, with some state subsidies and other support opportunities available but without the massive state-administered Medicaid programs that exist for nursing homes. In general, assisted living services are markedly less expensive than nursing home services but, of course, the magnitude of care can differ greatly and, as indicated above, more and more nursing home care resembles what used to be thought of as acute hospital care and therefore is, of necessity, much more expensive to provide.

The services provided by assisted living facilities include assistance with those tasks relating to bathing, dressing/grooming, ambulation, eating, toileting and other similar tasks related to personal care needs (Assistance With Activities of Daily Living), and those tasks related to meal preparation, housekeeping, clothes laundering, shopping for food and other items, telephoning, use of transportation and other similar tasks related to environmental needs (Instrumental Activities of Daily Living).

Under 651 CMR 12.03, anyone seeking to establish or maintain an assisted living facility must file an application for certification. Operating an assisted living facility without proper certification, or knowingly referring any individual to a facility that is not certified, can result in penalties of up to $500 per day. The Assisted Living Statute's regulatory process is overseen by the Executive Office of Elder Affairs, which is responsible for certification of assisted living facilities.

Prior to advertising, operating or maintaining an assisted living facility, a sponsor must obtain certification from EOEA. For a transfer of ownership of an existing certified facility, a prospective sponsor must apply for certification at least thirty days prior to the proposed transfer. Certifications are issued for two years, and a renewal application filed more than thirty days prior to expiration of certification will entitle the sponsor to automatic certification renewal until such time as EOEA notifies the facility otherwise. An assisted living development commenced prior to June 1, 1995, will, upon the filing of a certification application, be considered to be certified unless and until EOEA informs them otherwise as a result of EOEA’s review of the application.

The certification application requires disclosures regarding the proposed sponsor of the assisted living facility, including:

• Names and other identifying information regarding all officers, directors and trustees, and all stockholders or partners holding an interest of 25% or more in the facility, and assurances that these individuals have not been associated with the violation of any law related to any assisted living facility, and that health care facilities affiliated with the sponsor or these individuals have within the last five years substantially met all applicable licensure and certification requirements. EOEA can deny certification if the sponsor or any of the named individuals had a direct or indirect ownership interest in a health care facility that was: (i) the subject of a patient care receivership action or a settlement in lieu of such action, (ii) the subject of a delicensure action, (iii) the subject of a substantiated case of patient abuse or neglect; or (iv) cited for repeated, serious and willful violations of applicable rules and regulations.
• A copy of a proposed operating plan including, among other things, the following: (i) number and location of resident units; (ii) fee structures for lodging, meals and services; (iii) description of services to be offered; (iv) staffing plan; (v) copy of the proposed Residency Agreement; (vi) copies of all required building, occupancy and other permits; and (vii) copies of resident and family notification procedures.
• Sponsors must update information required by EOEA whenever the information changes.
• Certification is valid only for the named sponsor originally certified. Certification must be posted conspicuously in the assisted living facility and is automatically revoked upon EOEA’s refusal to renew, or a transfer of ownership, change of name or closure of the assisted living facility.
• If a sponsor wants to close or sell an assisted living facility for other business use, the sponsor must notify EOEA ninety days prior to the proposed transaction. The notice must contain detailed procedures for, inter alia: (i) providing notice to residents and their families and legal guardians of the anticipated change, and (ii) actions the sponsor will take to assist residents in finding new placements. No specific provision is made for the imposition of penalties if the sponsor does not comply with these requirements.

Operating requirements for assisted living facilities (651 CMR 12.04) include:

• Physical Requirements. A sponsor must provide, inter alia, either single or double occupancy units with lockable doors, either a full private bath for newly constructed facilities (or a private half-bath in existing facilities with access to a bathing facility for every three residents), and a kitchenette or access to cooking capacity. The bathroom and bathing facility requirements may be waived at the discretion of EOEA upon sufficient proof by the sponsor that a waiver will serve public necessity or convenience, will insulate the sponsor from undue economic hardship, and will otherwise foster the creation of a home-like residential environment.
• Service Plans. A sponsor must develop and maintain with each resident (and legal representative) an individualized and confidential Service Plan that describes, in lay terms, the service needs of the resident. A Service Plan must be developed prior to the resident's entry and must be updated every six months or more frequently if the resident's health status or family circumstances change. A Service Plan must, inter alia: (i) identify the specific services needed including frequency and duration of services; (ii) identify the specific providers of services to be used and the source of payment; (iii) detail the sponsor's emergency response signaling and twenty-four hour staffing plan and how these services will benefit the resident; and (iv) specify the sponsor's self-administered medication management program.
• Services. A sponsor must provide certain services to each resident whose Service Plan specifies a need for: (i) supervision and assistance with the Activities of Daily Living and with Instrumental Activities of Daily Living; (ii) a system of reminders and monitoring associated with medications referred to as Self-Administered Medication Management; (iii) timely assistance with emergency needs through twenty-four hour on-site staff and emergency response systems; and (iv) a minimum of at least one meal per day.
• Skilled Nursing Care. The assisted living regulations limit the nature and extent of skilled nursing services that may be delivered within an assisted living facility to care provided by a properly licensed or certified provider or a licensed hospice, provided the provider does not train the facility's staff to deliver such care. M.G.L. c. 19D §11 prohibits a facility from accepting a resident in need of ninety or more consecutive days of skilled nursing care. However, EOEA seems unwilling to enforce this restriction because of concerns about a conflict with the federal Americans with Disabilities Act and Fair Housing Act.
• Resident Records. A sponsor must maintain confidential records for each resident including the resident's Residency Agreement and Service Plan, assessments or progress notes, and comments by the resident.
• Facility Staffing. A sponsor must maintain personnel records for each employee specifying detailed job descriptions, individual qualifications, annual performance evaluations, written policies and documentation regarding on-going staff training. Each facility must have an experienced Manager and Service Coordinator, and all staff must complete a six-hour basic training program, with annual six hour updates, on skills specified at 651 CMR 12.07(1). Staff that provides personal care services (other than licensed registered nurses and licenses practical nurses, certified nurse's aides, certified home health aides and personal care homemakers who have completed a sixty hour training program) must complete a fifty-four hour training program. Food service employees must receive six more hours of training on sanitation and food safety.
• Resident's Rights. The Assisted Living Statute and regulations, at M.G.L. c. 19D § 9, 651 CMR 12.08, establish a list of Resident Rights that must be respected by an assisted living facility. Copies of Resident Rights must be delivered to each resident at the time the Residency Agreement is signed. These rights are based upon those required under the federal Omnibus Budget Reconciliation Act for all certified long term care facilities and focus on a resident's rights to privacy, confidentiality, dignity, and freedom of choice, the right to voice grievances and the right to full and complete information and communications with and about an assisted living facility.
• Residency Agreement. A sponsor must have a written Residency Agreement with each resident that (i) details all charges, expenses and assessments as well as the mechanism for billing and payment of the same; (ii) explains the sponsor's resident grievance procedure; (iii) contains a covenant by the sponsor to comply with all applicable statutes and regulations relevant to prevention of abuse, neglect and financial exploitation of the elderly; (iv) establishes conditions for termination by either party; (v) establishes rules for conduct and behavior of staff, management and the resident; and (vi) includes or incorporates by reference a binding residential lease agreement.

EOEA reserves the right (under 651 CMR 12.09) to conduct a review of any sponsor's activities whenever EOEA has probable cause to believe that an assisted living facility is in violation of the Assisted Living Statute or regulations. The review may include record review, site inspection and review of resident satisfaction surveys. If a sponsor is found to be out of compliance, a written notice will be issued and the sponsor has ten days either to respond with a plan of correction and begin implementing the plan or contest EOEA's findings before an EOEA official or file an appeal with the Division of Administrative Law Appeals. EOEA may punish noncompliant sponsors by suspension, revocation, denial or non-renewal of certification or imposition of a limitation on new admissions pending an appeal by the sponsor. In instances of serious jeopardy to resident health or safety, certification may be revoked on an expedited basis.

EOEA has established the Statewide Assisted Living Ombudsman Program, at 651 CMR 13.00, to perform similar functions and fulfill similar purposes as the Long Term Care Ombudsman Program from which the new regulations were derived. EOEA will create and train a network of local Ombudsmen, familiar with assisted living facilities and their residents, and able to respond to complaints from residents, their families and their representatives. The Ombudsmen have the right to enter facilities, and review resident records (with consent from residents).

As the senior citizen population continues to grow and as senior citizens live longer and are more active for many more years, the need for alternatives to apartment living and nursing home care will grow. Assisted living in Massachusetts is proving to be just what the doctor will not be needed to order: a place for senior citizens that is more like home than most others, and is affordable and accessible to those who do not suffer from cognitive impairment or physical disability, and can afford assisted living or can benefit from governmental programs providing subsidies.

Copyright © 1997, Alan S. Goldberg, All Rights Reserved. This is an edited version of an article published in the Boston Bar Journal.

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Last revised: 1/9/98