July 24, 2014
As life expectancy rises, resulting
in an increase in the population of seniors, there is a heightened demand for
long-term care facilities. One type of facility where statutory protections
differ from those of nursing homes are assisted living residences (ALRs). With
approximately 30,000 ALRs serving almost 750,000 residents, assisted living is
the fastest growing form of residential housing for older Americans.1
This article will focus on statutory
protections for residents at assisted living residences and what practitioners
need to know when litigating claims on behalf of residents.
Between 2000 and 2010, people aged
85 to 94 increased approximately 30 percent; those 95 years old or older
increased approximately 26 percent; and individuals 65 or above increased
approximately 15 percent (over 40 million).2 By 2020 those aged 85
and older are projected to increase from 5.5 million to 6.6 million.3
Statute
Unlike nursing homes, there are no
federal regulations or standards that are applicable to assisted living
residences. Article 28 of the Public Health Law, for instance, applies to
nursing homes and not ALRs.
Recognizing the need to protect
vulnerable citizens who reside in these facilities, the New York State
Legislature enacted the Assisted Living Reform Act (ALRA) on Feb. 23, 2005.4
The ALRA is codified in Public Health Law (PHL) Article 46-B; Social Services
Law (SSL) Section 2(25) as amended, and State Finance Law Section 99-L. The
regulatory framework can be found at Title 10 Chapter X.
The ALRA defines an ALR as "an
entity which provides or arranges for housing, on site monitoring, and personal
care services and/or home care services (either directly or indirectly), in a
home-like setting to five or more adult residents unrelated to the assisted living
provider."5 An ALR is not a hospital, nursing home, continuing
care retirement community, mental health facility, independent senior housing,
or an adult care facility. However, if a facility uses the term
"assisted" in its marketing materials, it is subject to ALRA and
Title 10.
The legislative intent of the ALRA
is to further the "philosophy of assisted living emphasizing aging in
place, personal dignity, autonomy, independence, privacy and freedom of
choice…that contains consumer protections…[and] that enunciates and protects
resident rights; and that provides adequate and accurate information for
consumers…"6
Traditional negligence claims are
typically based upon a common law theory of liability. The Legislature has
added a separate and distinct statutory cause of action against an ALR.
Licensing
and Certifications
Prior to the passage of the ALRA,
there were adult homes and enriched housing programs.7 The ALRA
maintains both, but requires ALRs to first be licensed as an adult home or
enriched housing program prior to applying for licensure as an ALR (exceptions
exist to apply simultaneously). Once licensed for assisted living, the facility
can apply for enhanced assisted living or special needs certification. With
enhanced assisted living certification, the ALR may retain residents that are
non-ambulatory (i.e., bed-bound). With special needs certification, the ALR may
maintain a dementia unit.
Certification allows an ALR to
retain a resident whose condition declines and needs additional care to complete
daily activities (i.e., dementia that requires greater supervision). Consistent
with the idea of aging in place, these certifications allow residents to remain
in the same facility.
When investigating a potential
claim, acquire all applications submitted to, and certifications and licenses
obtained from the New York State Department of Health. In the applications the
facility must submit plans indicating how they intend to care for individuals
with dementia. The department's website is also an important source of
Information.
In addition, as ALRs must first be
licensed as an adult home or enriched housing facility, they must comply with
all applicable regulations. (Title 18—Chapter II—Subchapter D for adult care
facilities and Title 18—Part 488 for enriched housing.) Under Title 10, Chapter
X, if there is a conflict between the regulations that apply to ALRA and those
that apply to adult homes and enriched housing then the ALRA prevails. Section
1001.1
Admission
To become a resident of an assisted
living residence, a person is required to undergo pre-screening and approval
for admission by a physician, physician assistant or nurse practitioner. Such
steps are to be repeated annually and when there is a change in the
individual's condition. See Section 4657.
An enhanced assisted living facility
must meet the following requirements to admit residents:8
•
An assessment by a qualified person within 30 days prior to admission;
• A
medical evaluation within 30 days of admission, when there is change in the
resident's condition, and once every 12 months thereafter;
•
Recording of information on significant medical history and current conditions,
allergies, prescribed medications, ability to self-administer, recommendations
for diet, exercise and recreation, frequency of medical examinations, cognitive
and mental health statistics, and assistance with activities of daily living;
• A
statement that the resident is suited for assisted living, Special Needs
Assisted Living Residence (SNALR) or Enhanced Assisted Living Residence (EALR);
• A
statement as to whether long-term medical needs or nursing care require
placement in a nursing home;
• A
statement as to whether nursing care is needed.
•
Development of an individualized service plan (ISP) unless a doctor waives;
•
The development of an ISP in accordance with the medical, nutritional,
rehabilitation, functional, cognitive and other needs—implemented within 30
days of admission;
•
An explanation as to how and by whom the services will be provided and
accessed.
•
Review and revision of the ISP every six months, as necessary, due to a change
in needs, and/or as ordered by the physician; and
•
At admission, development of a written ISP, with the assistance of the
resident's physician.
Practice Point: When representing a
resident, consider naming the physician, nurse practitioner and/or physician's
assistant as defendants.
The ALRA requires that the owner and
operator of the ALR register and maintain its name, address and phone number,
an authorized agent to accept service of process, a statement of the licensure
status and any home health care or personal care service agency that is under
an agreement with the facility, and the effective period of the residency
agreement and the resident's representatives.9
Practice Point: Knowing whom to
serve is found in the residency agreement. Serve this person, as well as anyone
else you deem appropriate. The family should have a copy of the residency
agreement. In addition, request from the family all marketing materials
obtained or viewed. In discovery, obtain all of the marketing materials
concerning the facility's philosophy and mission.
It is also wise to obtain copies of
any contracts the facility has with outside contractors.
Individualized Service Plans
Pursuant to New York Public Health
Law 4659, an ISP must be developed for each resident upon admission. It must be
created "with the resident, the resident's representative, the resident's
legal representative, if any, the assisted living operator, and [if
appropriate] a home care services agency." The resident's physician must
also be consulted.
The law requires ISPs be implemented
within the first 30 days of admission and reviewed and revised every six
months, whenever ordered by a physician, or as necessary to reflect a change in
care needs. To the extent necessary, the creation needs to be undertaken in
consultation with the resident's physician, developed in accordance with the
medical, nutritional, rehabilitation, functional, cognitive and other needs of
the resident, include the services, how and by whom those services will be
provided, and reviewed and revised as frequently as necessary to reflect
changes in the resident's needs, but not less than once every six months.
Practice Point: The ISP is better
than a care plan. It will identify all persons/entities that provided care to
the resident while at the residence.
Under the ALRA, residents have the
right that their dignity, autonomy, independence and privacy be promoted, in
the least restrictive and most home-like setting, commensurate with preferences
and physical and mental status.10
Any waiver of rights is void as
against public policy. Residents are to be fully informed of their medical
condition and proposed treatment; receive courteous, fair, respectful care and
treatment; receive adequate and appropriate assistance with activities of daily
living; be able to refuse treatment or medications (but only "after being
fully informed of the consequences of such actions"); have private
consultations with their lawyer; and be given the opportunity to provide their
version of an accident/incident. The ALR must provide, and have conspicuously
posted, a written statement of residents' statutory rights; their right to
counsel; their right to obtain the facilities' licensure; and a consumer guide
with the Health Department's toll free complaint number (866-893-6772).
There is no independent measure of
damages for a violation of a resident's rights as exists in a nursing home
case. A common defense is that the resident refused care, such as turning and
positioning, or was non-compliant. The ALRA helps to defuse this defense. If a
resident refuses care or is non-compliant, the ALR must inform the resident of
the consequences of such actions.
Practice Point: Advise residents of
their right to file a complaint with the Health Department. The department will
investigate and issue a report.
In addition, demand the Resident's
Council minutes. The Resident's Council is where residents can state
grievances.
Case management of the
Individualized Service Plan requires oversight and coordination, as well as the
ability to meet the resident's needs at the time of admission and at least
every 12 months thereafter. Case management also provides referrals on an
ongoing basis, coordinates services to be provided, and develops a formal
mechanism between the case manager and staff to identify abrupt or progressive
changes in behavior or appearance.11
Requirements include maintaining
complete and accurate personal records for each resident, providing personal care
to enable the resident to maintain good hygiene and health, carrying out
activities of daily living and participation in activities. Sections 1000.12
and 1001.7(h) of Chapter X of Title 10 of the New York Codes Rules and
Regulations.
Safeguards to properly manage
medication require compliance with the regulations. This includes physician
orders for all PRN medications, both prescription and over-the-counter, which
shall identify resident behaviors or symptoms warranting the need for
mediation.12
The operator of an enhanced assisted
living facility providing services normally given by a home health care agency
shall develop appropriate policies and procedures, including, but not limited
to, service-specific delivery standards consistent with the current professional
standards of practice, staff supervision (reviewed and revised as necessary),
and documentation of service delivery.
Additional requirements for the
operator of a Special Needs ALR require vigilance of the general whereabouts of
each resident. If a resident becomes absent, certain procedures must be
followed and family and law enforcement must be notified. To insure proper
supervision and care, all shifts must be properly staffed.
Case management records and the ISP
in SNALRs shall identify resistance to care and include a care plan to address
it. Food is to be offered outside of usual meal time and in a manner acceptable
to special needs. The care plan should reflect functional abilities,
preferences and diet. Unless contrary to orders, prescribed nutritional
supplements shall be provided between meals. In addition, weather permitting,
residents must be provided daily outdoor activities.
Once suit based upon a violation is
filed it is necessary to proceed with all resources available to the practitioner.
Practice Points: In discovery,
demand all policies and procedures of the facility, and copies of all
contractual agreements between health care providers and the facility.
A claim for breach of contract under
appropriate consumer protection laws should be considered as it may allow for
additional damages and broader discovery.
Weigh a claim for breach of contract
under appropriate consumer protection laws. This may allow for additional
damages and broader discovery.
Conclusion
Change in the long-term care
industry has arrived. A clear understanding of the legal landscape is crucial.
It is the role of counsel to secure the appropriate remedy, and to help prevent
harm from recurring.
Sean J. Doolan and Jeffrey M. Adams,
Endnotes:
1. Residents Living in Residential
Care Facilities: United States, 2010, NCHS Data Brief No. 91, Centers for
Disease Control and Prevention, April 2012 Residential Care Facilities: A Key
Sector in the Spectrum of Long-Term Care Providers in the United States, NCHS
Data Brief No. 78, Centers for Disease Control and Prevention, December 2011.
2. The Older Population: 2010, U.S.
Census Bureau, November 2011.
3. A Profile of Older Americans:
2011, Administration of Aging, Department of Health and Human Services, 2011.
4. Regulatory Impact Statement, New
York State Department of Health (http://www.health.ny.gov/facilities/assisted_living/adopted_regulations/docs/regulatory_impact_statement.pdf).
5. Public Health Law (PHL) Section
4651 and Title 10 of the New York Codes Rules and Regulations (NYCRR), Chapter
X, Section 1001.2.
6. Public Health Law (PHL), Article
46-b, Section 4650.
7. Subdivision 25 and 28 of Section
2 of the Social Services Law.
8. Title 10 of the New York Codes
Rules and Regulations (NYCRR), Chapter X, Section 1001.7.
9. Title 10 of the New York Codes
Rules and Regulations (NYCRR), Chapter X, Section 1001.8.
10. Title 10 of the New York Codes
Rules and Regulations (NYCRR), Chapter X, Section 1001.8.
11. Title 10 of the New York Codes
Rules and Regulations (NYCRR), Chapter X, Section 1001.10.
12. Title 10 of the New York Codes
Rules and Regulations (NYCRR), Chapter X, Section 1001.10.
Reprinted with permission from the July
24, 2014 edition of the The New York Law Journal © 2014 ALM Media Properties,
LLC. All rights reserved. Further duplication without permission is
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There was a study conducted by the Department of Health and Human Services that looked into neglect and abuse in nursing home facilities. The study showed that 1/3 of all residents in nursing homes suffer from neglect or abuse within the first 35 days of being admitted. The types of neglect or abuse seen within this about of time include: