The Trial Lawyer Fall 2017 - Page 34

“Specialized Alzheimer’s Units” are accepting residents with advanced dementia who would normally be admitted to a nursing home. These units are often known as “memory units” or “memory care units.” While no uniform definition exists for assisted living among the states, a commonly used definition is: … a residential setting that provides or coordinates flexible personal care services, 24-hour supervision and assistance (scheduled or unscheduled), activities, and health-related services; has a service program and physical environment designed to minimize the need for tenants to move within or from the setting to accommodate changing needs and preferences; has an organizational mission, service programs and a physical environment designed to maximize residents’ dignity, autonomy, privacy, and independence, and encourages family and community involvement. Assisted living facilities, as mentioned earlier, do not provide medical care to residents. These facilities generally aim to provide assistance with activities of daily living (ADLs) along with providing room and board, meals, cleaning services, and assistance with medication administration. The key concept surrounding assisted living facilities is that residents are able to remain as independent as possible, and the facilities themselves usually reflect a more home-like setting rather than a hospital- like setting. Some facilities offer different levels of care for residents who need help with more than the basic services provided. Many assisted living facilities, especially those with 32 x The Trial Lawyer 3. Safety Rules The standard of care differs between assisted living facilities and nursing homes. For nursing homes, the minimum standard of care can be established through federal requirements, 42 C.F.R. §483.75. These federal requirements cover the topics of resident rights, quality of life, quality of care, nursing services, physician services, and several others. They set the standards that these facilities must meet in order to qualify for Medicare reimbursement of services. Each state will likely have its own state regulations that cover nursing homes as well. Unlike nursing homes, assisted living facilities are not regulated at the federal level. Because Medicare does not pay for assisted living services, those regulations do not apply to them. This also means that a large majority of assisted living residents are private pay; in other words, they pay out of their own pockets. Each state must determine how these facilities will be regulated. Thus, unlike nursing homes, the regulations can differ from state to state. Massachusetts provides another good example of how these facilities can vary from state to state in that they are called “assisted living residences.” A lack of federal regulations coupled with differing state regulations can lead to problems. In 1999, the U.S. General Accounting Administration identified problems in assisted living facilities that included inadequate or insufficient resident care, insufficient trained staff, improper medication administration, and not following admission and discharge policies required by state regulation. Beyond that, different facilities provide differing types and levels of services. Because facilities can differ from one to another, this creates an issue in establishing a standard of care. Generally, a specific standard of care must be established for a specific facility depending on the services it provides. A good place to start is the admission agreement. This agreement will outline the services that the facility agrees to provide and the price the resident agrees to pay for those services. The standards that apply to a nursing home cannot be relied on as the basis for establishing the standards in an assisted living facility. For assisted living facilities that have a Specialized Alzheimer’s Unit, the standard of care will differ for that unit because a higher level of care is required for those residents. 4. Staffing A nursing home is a medical provider and an assisted living facility is not, creating important differences in the amounts