Legal Limits of Care in Assisted Living Facilities

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When aging parents come to the point when assisted living seems like the best choice, it is usually their baby boomer children who see it first. Perhaps the adult children live in another state. Perhaps they are unable to visit Mom or Dad often enough to feel comfortable leaving them alone. The death of a spouse or a gradual loss of independence in self care—any of these reasons may lead to the adult child’s decision to move the parent. As an assisted living facility representative is likely to tell you, it is often the adult children who first come to look the place over, later bringing their parents to see the place for themselves. These adult children are the hidden consumers of services.

Assisted Living vs. Skilled Nursing

As the hidden consumers, what do the adult children of aging parents need to understand about these facilities? Very simply: what the facility can’t do. Invariably, the sales pitch tells you what the facility can do, which is fine, and to be expected. But as a consumer, you must understand the difference between assisted living and nursing care. First, an assisted living facility is not a nursing home with fancy furniture. Assisted living is not licensed to give nursing care. Typically, assisted living facilities are places where elders live in a supervised community, with some personal care services available. Meals, social activity, and help with the activities of daily living such as bathing and dressing are all usually offered at such facilities. The focus is on providing a healthy social environment and preventing social isolation. It is a worthy focus, as isolation is dangerous, and widespread among elders whose independence is declining.

If your parent is in fragile health and seems to be steadily declining physically or mentally, be cautious about choosing an assisted living facility over a nursing home (also known as a skilled nursing facility). No one chooses a nursing home first. Nursing homes are more like hospitals, which they must be to deliver skilled care to frail seniors. But if your aging parent needs nursing care, and must be watched day and night, or you believe that he or she is likely to need such supervision in the near future, it is the only choice. Assisted living facilities are not licensed by Medicare or Medicaid to give skilled care. Some have a separate skilled nursing facility on-site or nearby, but it will have its own license to deliver skilled nursing care. That license does not apply to the assisted living component, even the two facilities are located on the same campus or are operated by the same parent company.

Doctors & Nurses Not Required

Many assisted living facilities do not have any licensed nurse on staff, and may have no nurse connected to them at all. Because they are considered non-medical facilities, having a licensed nurse is not required by law. Even if a nurse is employed by the assisted living facility, the nurse cannot give hands-on care in the form of dressing a wound, administering around-the-clock insulin, administering oxygen, or other tasks that are defined by the federal and state governments as “skilled nursing care.”

Skilled nursing care may only be administered within a facility that is licensed to do so. Legally, it is called a skilled nursing facility, though it may have a different business name by which a consumer finds it, such as “extended care” or “long-term care”. Medicare and Medicaid designate these homes as skilled nursing facilities. Because skilled nursing facilities bill Medicare and/or Medicaid for this type of patient care, they must comply with many complex legal regulations and requirements. Assisted living facilities are regulated by the state Department of Social Services, not the Department of Health, which regulates nursing homes. Assisted living facilities do not have the same safety or administrative requirements as a skilled nursing facility, and they are prohibited from giving care they are not licensed to give.

Limitations to Specialized Care Waivers

There are exceptions to some of the federal and state government’s licensing requirements. For example, a licensed assisted living facility may take care of residents with dementias, including Alzheimer’s disease, if it has a waiver to accept this kind of resident. The facility must also have certain protections in place to prevent injury to its demented residents. However, it is still prohibited from restraining a demented resident who has a tendency to wander. There are many other limitations to what an assisted living facility can do, even with waivers. Taking care of residents with dementia can be unpredictable, and skilled nursing can become necessary as the disease progresses.

When an aging parent has to move out of the family home, or out of a long-term residence of any kind, the move can be difficult, even traumatic. If you are considering assisted living as an option for your loved one, be sure your focus is on the long run. Carefully consider what he or she will need a year down the road. Moving an elder twice within a short period can be extremely hard on both of you, so make your decisions based on the overall picture, not just on what the assisted living facility can do for him or her right now.

As hidden consumers, adult children must be fully aware of the limits of assisted living. Assisted living facilities can be wonderful and supportive environments for residents who don’t need skilled care. If you are considering assisted living for your aging parent, be sure this kind of place is a match for your parent’s needs.

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Editor’s Note: For more information on this subject, visit  AgingParents.com

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