Proposed Assisted Living Regulations Need Revision
A little over a year ago, on July 30, 2007, I reported that Assisted Living had recently been officially recognized in Pennsylvania with the passage of Act 56 of that year. See “Assisted Living Officially Arrives in Pennsylvania, “ www.collitonlaw.com. What most people did not realize is that, before that time, Assisted Living did not formally exist here. It has been just a subcategory of personal care homes.
The reason the distinction matters is that personal care homes are really boarding homes with some extra support. Assisted Living recognition as envisioned by the new law would involve regulations and standards for a kind of living community that provides more care than a personal care home but less than a nursing home. As the state expressed its preference to move away from institutional care to care in a more “family like” setting, Assisted Living has been regarded as bridging the gap from home to a higher level of care.
The primary difference from a funding standpoint for the State and for individuals is that Assisted Living in Pennsylvania has been completely private pay. If a resident cannot afford to continue to stay, the government does not pick up the cost under Medicaid. This could change for some residents eventually under some circumstances but the government would have greater control over whether and when it would pay.
Proposed regulations under the new law have now been published. See www.pabulletin.com/secure/data/vol38/38-32/1481.html. However, their publication has raised a storm of concerns from attorneys and others working with seniors.
As one example, In the Fall edition of the newsletter of the Pennsylvania Bar Association Elder Law Section, Dana M. Breslin, Esq., CELA, a prominent Delaware County elder law attorney who has worked many years with seniors, raised these issues.
- Lack of requirement of a preassessment evaluation. The proposed regulations would allow evaluation of a senior admitted to assisted living after admission. At that time, if the assisted living could not provide the needed services, the resident could cancel the contract and move. Considering the trauma of a first move, the suggestion was made that preadmission screening except when time is short such as admission from a hospital, would make more sense and would allow the new resident and her family to assess whether this is the correct choice.
- No delineation of a core set of services. There is no standard set of services envisioned by the proposed regulations. Think of it as a dinner plan versus a la carte. One facility might appear to cost more than another but the difference might be that the first facility includes more services in its basic rate and the other does not. After admission, the resident could discover that the second facility is more expensive considering his needs.
- The informed consent “negotiated risk” provisions seriously lack protection for the frail, infirm consumer. The new law would authorize assisted living communities to accept residents with greater care needs but allow an agreement between the resident or her family and the facility stating the consumer would accept the risk. The proposed regulations assume that later difficulties would be handled by the Ombudsmen Program. The Ombudsmen Program could be overwhelmed with the additional responsibilities and it does not protect residents under the age of 60.
- There is no protection against involuntary, inappropriate discharge. Skilled nursing facilities, unlike assisted living facilities, have for many years now operated under very tight regulations regarding discharge. There are a limited number of reasons why a skilled nursing facility might involuntarily discharge a resident. These include that the facility is closing, that the resident presents a serious risk of harm to other residents, or that the resident no longer needs the care. Under the proposed assisted living regulations, other than a thirty (30) day notice of discharge, these protections are not available.
Alissa Halperin, Esq., senior attorney and deputy director of policy advocacy at the Pennsylvania Health Law Project, www.phlp.org, also expressed deep concern with the proposed regulations. She noted that the regulations provide numerous ways in which a facility could evict a consumer without means to challenge the eviction. According to Ms. Halperin, staffing levels and training requirements would remain the same under the new regulations and fire safety and wheelchair access assurances were inadequate.
While many very high quality assisted living communities service Pennsylvania seniors, it seems that the proposed regulations do not set the standards. To provide input, readers could contact the Pennsylvania Assisted Living Consumer Alliance, www.paassistedlivingconsumeralliance.org.
About the Author Janet Colliton
Esquire, Colliton Law Associates, P.C. Janet Colliton has practiced law for over 38 years, 37 of them in Chester County, Pennsylvania, a suburb of Philadelphia. Her practice, Colliton Law Associates, PC, is limited to elder law, Medicaid, including advice, applications and appeals, and other benefits planning including Veterans benefits, life care and special needs planning, guardianships, retirement, and estate planning and administration.