Introduction

Assisted Living can be a valuable long-term care option for an older person who is no longer able to live independently. Assisted living has become very popular in recent years, and assisted living facilities now are providing a greater variety of services than ever before.

Even though the care now provided in assisted living is growing in complexity, there are relatively few rules in place to protect residents. Federal law essentially does not address assisted living, and state licensing requirements leave many questions unanswered. Because the law may be relatively sketchy, the contract between the resident and the facility in many cases determines to a great extent the type and quality of care to which the resident is entitled. Therefore, residents and family members must be aggressive in advocating for the resident’s needs and interests.

There are important topics in assisted living that residents and family members can research in order to help ensure that they receive the highest quality of care available. These topics include contract and admission issues, pricing and payment, as well as healthcare and personal care concerns. “Important Topics in Assisted Living: A Consumer Guide” can help assisted living residents and their family members research these issues, make informed decisions, and protect their rights.

What is Assisted Living?

“Assisted Living” is a term that describes a wide range of facilities that provide some type of long-term care to older persons who no longer can live independently. In the past, assisted living residents generally needed no more than limited assistance with “activities of daily living,” such as bathing, grooming, eating, and toileting. Today, however, assisted living facilities are providing (or arranging for) a significant amount of health care, from medication administration all the way to wound care, physical therapy or (in rare instances) tube feeding.

Because “assisted living” generally is defined in a relatively loose way, it may be difficult for a consumer to know what to expect or to demand. Facilities not only vary from state to state, but from facility to facility within the same state as well.

That being said, there is no reason for consumers to despair. State licensing law sets quality of care standards, and those standards can offer significant protections to residents. This guide provides guidance for using those licensing standards for residents’ benefit, and discusses various strategies to obtain for residents the highest possible quality of care.

Assisted Living Staff

Assisted living staff may include administrators, business and marketing directors, admissions coordinators, direct-care staff, food service personnel, activity directors, and maintenance and housekeeping personnel. The number and type of staff in assisted-living facilities varies greatly. Staffing depends on many factors, including the number of residents and the types of services and amenities offered. The staff may be employed directly by the facility, or by agreements with outside agencies or private contractors. All personnel must be licensed, certified, or registered in accordance with state law.

The Administrator is responsible for the overall operation of the facility. It is up to the administrator of the assisted living residence to ensure that appropriate staff members are on duty at all times to properly provide for the health, safety, and well being of the residents as well as maintenance and housekeeping of the buildings and grounds. The administrator is responsible for recruiting, employing, and training the number of licensed and unlicensed staff needed to provide services.

Direct Personal Care Staff may be certified nursing assistants or specially trained individuals who assist residents with personal needs and activities of daily living. Qualified, competent direct care personnel must be in the facility twenty-four hours a day to meet all residents’ needs. Some states allow personal care staff to receive “on the job” training.

The Business and Marketing Director is in charge of advertising and marketing the facility. He or she gives information to the public and may provide brochures and tours of the facility. The facility must have written admission, retention, and transfer policies that are available to the public upon request. Potential residents often meet first with the marketing director, who will discuss what services and amenities the facility has to offer. Residents must keep in mind that this contact person is often trained in sales and marketing techniques, so naturally the facility is presented in the best possible light.

The Admission/Service Coordinator develops and oversees the care and services of each resident on admission. He or she is responsible for the initial resident assessment and for making sure that each individual resident’s needs and requests are fully addressed. These needs and requests are usually documented on the resident’s “service plan” (see section below.) The service coordinator must have the knowledge, skills and abilities to coordinate the service plan for each resident. Both the administrator and designated service coordinator are responsible to ensure that each resident's service plan is implemented by facility staff.

The Activity Coordinator organizes daily activities, social events and special programs for residents. The activity coordinator's duties include the coordination of all recreational activities, including volunteer and auxiliary activities. The Activity Coordinator plans, organizes, and conducts the residents' activity program with resident participation; and develops and posts monthly activity calendars, including information on community activities, based on residents' needs and interests.

Food Service Personnel prepare and serve resident meals. Facilities must employ food service personnel to meet the needs of residents. While on duty in food service, the cook and other kitchen staff generally cannot be assigned to duties outside the food service area. If food service personnel also work in housekeeping or provide direct resident care, the facility must develop and implement employee hygiene and infection control measures to maintain a safe, sanitary food service.

Maintenance and Housekeeping Personnel are responsible for the daily cleaning and maintenance of the facility.

Say “No” to Negotiated Risk and Other Liability Waivers

In assisted living, a “waiver” of liability is a contract term which excuses the facility from legal responsibility. Residents “waive” (give up) their right to hold the facility responsible for a loss.

In most contracts between a business and a consumer – including an assisted living admission agreement – waivers of liability are illegal and unenforceable. For example, a surgeon must not demand that he or she be exempt from damages for a negligently performed surgery. Similarly, an apartment landlord must not require tenants to release the landlord from the responsibility to maintain the common areas in a safe condition.

Thus, the admission agreement for an assisted living facility must not require that a resident release the facility from responsibility for the resident’s health and safety. Such a contractual provision would be unenforceable: regardless of the contract, the facility could be liable if the harm to the resident was foreseeable, and the facility had a duty to prevent the harm.

Liability waivers are of particular concern in agreements in which a resident is admitted or retained in a facility that cannot meet the resident’s needs. This type of agreement is often referred to as a “Negotiated Risk” (or “Shared Risk” or “Shared Responsibility”) agreement. In these agreements, the resident releases the facility from legal responsibility for certain aspects of the resident’s care – pressure sore care, for example, or fall prevention or medication administration.

No resident should sign a negotiated risk agreement. One of the main reasons an older person moves into an assisted living facility is to avoid the risks and dangers of living independently. Releasing a facility from its responsibilities defeats the purpose of moving into assisted living. Residents of assisted living facilities should arrange for the services necessary to meet their needs. 

Given that moving to an assisted living facility can be a traumatic and confusing time, residents are particularly vulnerable during the time of admission. Presenting residents with negotiated risk agreements or other waivers of liability is coercive and unfair to residents. Negotiated risk agreements and other waivers of liability are illegal and unenforceable. Residents should be able to make choices regarding their lives without signing away their rights.