Assisted Living in Massachusetts: Another Way of Caring

By: Alan S. Goldberg, Esq.

Changes in health care delivery regulation, at the national and local levels, have encouraged the creation of new and different ways of addressing the needs of senior citizens. Because government programs have sought to eliminate financial incentives to take care of senior citizens in nursing homes when serious medical conditions are not present, nursing homes resemble acute care hospitals more and more.

Those who used to be cared for in the semi-residential setting of intermediate care or Level III nursing homes will no longer be able to find such accommodations or to obtain Medicaid program reimbursement for those services in nursing homes. Nursing homes have added sub-acute care in response to the pressure on hospitals to discharge patients who can be taken care of in nursing homes equipped to deliver what used to be thought of as acute care in hospitals. In order to meet the needs of those who require more than an apartment but less than a nursing home, a new category of accommodations, known as assisted living, has appeared and increasingly is where senior citizens who are neither cognitively impaired nor physically disabled are living.

The Massachusetts legislature, reacting to these changes in health care delivery, created a regulatory and certification program for assisted living facilities that is different from the nursing home regulatory and licensure system. On June 1, 1995, Massachusetts began the regulation of assisted living facilities under M.G.L. c. 19D (651 CMR 12.00 and 13.00). The certification process established under the new statute and regulations provides for disclosure and for compliance with requirements likely to ensure that residents will enjoy a safe and supportive living environment, responsive to their social and health care needs.

The Assisted Living Statute, in M.G.L. c. 19D, §1 (651 CMR 12.02) defines an assisted living facility as any entity, however organized, whether conducted for profit or not for profit, which:

A long term care facility (commonly referred to as a nursing or convalescent home) is a facility that is either advertised, announced or maintained for the purpose of providing three or more individuals with long-term resident, nursing, convalescent or rehabilitative care; or supervision and care incident to old age of ambulatory persons; or retirement home care for elderly persons (M.G.L. c. 111 § 71, 105 CMR 150). Long term care facilities regulated under M.G.L. c. 111 § 71, hospices regulated under M.G.L. c. 111 §57, continuing care facilities subject to M.G.L. c. 93 §76, congregate housing authorized by M.G.L. c. 121B §39, groups homes under contract with the Departments of Mental Health or Mental Retardation, and certain housing for priests and members of Roman Catholic religious orders, are explicitly excluded from the coverage of the Assisted Living Statute.

Funding for assisted living markedly differs from funding for traditional nursing home care, in that most nursing home care is paid for by the Medicaid program, with the balance being paid for by private funds and by the Medicare program. Assisted living is paid for primarily by private funds, with some state subsidies and other support opportunities available but without the massive state-administered Medicaid programs that exist for nursing homes. In general, assisted living services are markedly less expensive than nursing home services but, of course, the magnitude of care can differ greatly and, as indicated above, more and more nursing home care resembles what used to be thought of as acute hospital care and therefore is, of necessity, much more expensive to provide.

The services provided by assisted living facilities include assistance with those tasks relating to bathing, dressing/grooming, ambulation, eating, toileting and other similar tasks related to personal care needs (Assistance With Activities of Daily Living), and those tasks related to meal preparation, housekeeping, clothes laundering, shopping for food and other items, telephoning, use of transportation and other similar tasks related to environmental needs (Instrumental Activities of Daily Living).

Under 651 CMR 12.03, anyone seeking to establish or maintain an assisted living facility must file an application for certification. Operating an assisted living facility without proper certification, or knowingly referring any individual to a facility that is not certified, can result in penalties of up to $500 per day. The Assisted Living Statute's regulatory process is overseen by the Executive Office of Elder Affairs, which is responsible for certification of assisted living facilities.

Prior to advertising, operating or maintaining an assisted living facility, a sponsor must obtain certification from EOEA. For a transfer of ownership of an existing certified facility, a prospective sponsor must apply for certification at least thirty days prior to the proposed transfer. Certifications are issued for two years, and a renewal application filed more than thirty days prior to expiration of certification will entitle the sponsor to automatic certification renewal until such time as EOEA notifies the facility otherwise. An assisted living development commenced prior to June 1, 1995, will, upon the filing of a certification application, be considered to be certified unless and until EOEA informs them otherwise as a result of EOEA’s review of the application.

The certification application requires disclosures regarding the proposed sponsor of the assisted living facility, including:

Operating requirements for assisted living facilities (651 CMR 12.04) include:

EOEA reserves the right (under 651 CMR 12.09) to conduct a review of any sponsor's activities whenever EOEA has probable cause to believe that an assisted living facility is in violation of the Assisted Living Statute or regulations. The review may include record review, site inspection and review of resident satisfaction surveys. If a sponsor is found to be out of compliance, a written notice will be issued and the sponsor has ten days either to respond with a plan of correction and begin implementing the plan or contest EOEA's findings before an EOEA official or file an appeal with the Division of Administrative Law Appeals. EOEA may punish noncompliant sponsors by suspension, revocation, denial or non-renewal of certification or imposition of a limitation on new admissions pending an appeal by the sponsor. In instances of serious jeopardy to resident health or safety, certification may be revoked on an expedited basis.

EOEA has established the Statewide Assisted Living Ombudsman Program, at 651 CMR 13.00, to perform similar functions and fulfill similar purposes as the Long Term Care Ombudsman Program from which the new regulations were derived. EOEA will create and train a network of local Ombudsmen, familiar with assisted living facilities and their residents, and able to respond to complaints from residents, their families and their representatives. The Ombudsmen have the right to enter facilities, and review resident records (with consent from residents).

As the senior citizen population continues to grow and as senior citizens live longer and are more active for many more years, the need for alternatives to apartment living and nursing home care will grow. Assisted living in Massachusetts is proving to be just what the doctor will not be needed to order: a place for senior citizens that is more like home than most others, and is affordable and accessible to those who do not suffer from cognitive impairment or physical disability, and can afford assisted living or can benefit from governmental programs providing subsidies.

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Copyright © 1997, Alan S. Goldberg, All Rights Reserved. This is an edited version of an article published in the Boston Bar Journal.

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Last revised: 1/9/98