Massachusetts Regulators Propose Crack Down on Assisted Living Facilities

In Massachusetts right now, there’s a bit of a war going on between the Massachusetts Executive Office of Elder Affairs, nursing homes and assisted living facilities. As is so often the case, while the consumer is the party who is supposedly is designed to benefit from these regulatory skirmishes, that isn’t always what results.

Have you ever noticed these ‘Assisted Living Facilities’ when driving around Massachusetts (or elsewhere,) and wondered, “What are these places?” Well, in theory, they were developed about 15-20 or so years ago as a kind of an alternative to a nursing home, for primarily elderly residents who need some kind of care outside their families’ homes, but weren’t so seriously disabled that they needed a nursing home or skilled nursing facility with round-the-clock care. These facilities – or real estate developments as many would call them – supposedly offered primarily elderly residents (or otherwise infirmed persons) an alternative environment to a nursing home. In theory, many such residents would need limited assistance – perhaps to bathe or similar functions – and many would hire their own part-time nurse, Licensed Practical Nurse (LPN,) or nurses’ aide to come in for a few hours every day to help with these daily living functions. In practice, many assisted living facilities operate more like apartment complexes that have almost exclusively elderly residents, than anything else. Advocates for the elderly have criticized this practice, saying it’s an essentially low-ball way to make money off elderly patients – without being regulated as nursing homes or skilled nursing facilities.

This ‘sub-nursing home’ option became quite popular with the public, for a variety of reasons: 1) The primary one is that the cost for an assisted living facility is usually far less than that for a nursing home of skilled nursing facility. 2) Next, in theory at least, these facilities offered the resident a greater degree of independence and autonomy; but 3) – and as a Massachusetts nursing home neglect attorney, in my opinion this next one is very important – they offer the adult children of the elderly parents that they place in these facilities, a ‘way out’ of the guilt that usually results when placing an aging parent in a traditional nursing home. So, for a variety of reasons, assisted living facilities have grown rapidly, to the point now where approximately 14,000 in Massachusetts live in these facilities across the state. These facilities are regulated by the Massachusetts Executive Office of Elder Affairs – but trust me, as a Dedham Massachusetts nursing home lawyer – the oversight to date hasn’t exactly been strict or aggressive. However, it looks like that’s about to change, and that’s what the current battle between the state, the nursing home industry and the assisted living facilities is all about.

The state, through the state Office of Elder Affairs, believes that assisted living facilities are too eager, in their quest for revenue and profits, to accept residents that need a sufficient level of care that they really ought to be in nursing homes or in a skilled nursing facility. To this end, the state has drafted new regulations that would prohibit assisted living facilities accepting residents who are so frail or disabled that they need more than 90 consecutive days of skilled nursing care. The trade association which represents the interests of the assisted living facility industry, the Massachusetts Assisted Living Facilities Association, is trying to push back these proposed changes, claiming that regulations that force frail or infirm elderly residents to leave these facilities would force many into nursing homes against the wishes of the residents and/or their families. The industry is also concerned about a provision in the new regulations that the state has drafted, which would allow the state to make these changes without public hearings that allow interested parties to speak in opposition to them.

So, which party here – the state, the nursing home industry or the assisted living facility industry, has a greater claim to the truth on this issue? And most importantly, what is the best policy for the elderly and frail residents of these facilities? As a Brookline, Massachusetts nursing home neglect lawyer, I’ve seen far too many cases of nursing home neglect and abuse. If that is ultimately what is going on with assisted living facilities accepting residents who end up at risk because they need more care than such a place can provide, then we’re going to essentially create a whole new category of elders who are being neglected or abused.

I certainly don’t want to limit the housing options of elders who don’t want to go to a nursing home. Believe me – having seen the inside of too many nursing homes in my lifetime, I’m in favor of any reasonable option to keep an elder either in their home or in an assisted living facility. But not if placing the elder in such a facility will end up causing even more neglect to the elder. A very careful balancing act is needed here. We’ll see what develops as these regulations move forward.

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