What Every Attorney Should Know About
Assisted Living Admission Agreements
By Susan Dishler Shubin

An assisted living program is a residential program that provides housing and supportive services, supervision, personalized assistance, health-related services or a combination of these services to meet the needs of those residents who are unable to perform or need assistance in performing the activities of daily living. Such activities include eating, bathing, grooming, mobility, transfer and toileting.

Assisted living programs come in all sizes. They may take care of one resident or more than 100. There is also a wide range of cost from hundreds of dollars a month to thousands of dollars a month. Such a living arrangement can be a wonderful choice for an appropriate resident but can also be fraught with problems. If a client is considering moving to an assisted living facility, careful review of the admission agreement is a necessity.

The Office of Health Care Quality provides an Assisted Living Sample Resident Agreement. However, most facilities have (with or without counsel) drafted their own agreements. These agreements often include various attachments and can be 35 pages or more. The regulations recommend review of the agreement by an attorney or other representative of the resident. The practice by facilities regarding telling prospective residents to have an attorney review the agreement is not uniform.

The regulations include mandatory requirements that an attorney reviewing the agreement must see are clearly addressed. These include a statement of the level of care for which the assisted living program is licensed and the level of care needed by the resident as determined by an assessment. What happens if at a later date the level of care needed by the resident exceeds the level of care for which the licensee is permitted to provide? Will the facility seek a waiver as is permitted in the regulations? There are three levels of care: low, medium, and high, with increasing intensity of need and services provided. The agreement should include a clear statement of the services provided by the program as well as those that are not provided or for which there is an additional cost. Also mandated is an explanation of the assisted living program’s complaint or grievance procedure, occupancy provisions (including bed and room assignment) and what procedures are to be followed when relocating a resident or making a change in roommate assignment. Because this will be your client’s home, these matters are crucial to his/her well-being. Availability of locks for storage and security procedures may also be very important to your client.

Discharge policies cause many problems. Under the regulations, an assisted living program cannot discharge a resident without giving at least 30 days’ notice to the resident before the effective date of the discharge. Unfortunately for the resident, there is no right to a hearing of a proposed involuntary discharge, nor are there mandated standards or legal reasons for discharge. The resident who wishes to terminate the agreement must also give 30 days’ notice, except in the case of a health emergency. “Health emergency,” however, is not defined. This lack of definition has caused many residents and their family members problems, especially when it comes to determining what money, if any, they owe and what money, if any, is owed them. Often, the resident (or his or her family) determines that the facility cannot provide the services that the resident requires and that it is unsafe for the resident to remain. For example, a client with Alzheimer’s disease wanders away from the facility to a busy intersection. This may cause the family to remove the resident from the assisted living program or may cause the assisted living program to discharge the person. It certainly seems like a health emergency, but family members or the facility may not agree.

Whether a program provides appropriate facilities, services and staff for a resident with Alzheimer’s disease and other dementias can be especially troubling. It is likely the resident’s needs may increase with time. Is the facility able to meet increasing needs? Is the staff trained to safely deal with such a resident? Is the physical set-up appropriate?

The agreement must also delineate the financial provisions. Problems often occur regarding the rate structure. What is included and what service packages or fees for services or other non-service related charges are allowed? A facility cannot increase its rates without giving 45 days’ notice unless it is necessitated by a change in the resident’s medical condition.

Many problems arise over what is and is not included in the monthly fee. Additional charges can amount to hundreds of dollars per month. For example, a two-person assist transfer costs $7 a day, cleaning a resident’s walker costs $20 per hour plus materials, and incontinent care is provided at cost plus 20 percent. As the cost is often determined in part by the level of care required by the resident, it is important to know in advance exactly how the level is being determined, by whom and if there is any room for negotiation.

What is the smoking and alcoholic beverage policy? The resident and their family may not think about this but it can be crucial to a resident’s enjoyment of the facility. Disputes arise over phone use and cost, visitors and visiting hours and return of the security deposit/community fee.

Another problem is that assisted living facilities may change the contract and send an updated contract after a resident has been there for a period of time. Normally, this new contract is more favorable to the facility than the previous one, and yet the resident may not want to move. It is therefore important to determine the length of any contract signed.

In sum, assisted living can be a wonderful option for many clients. However, it is an area where preventative legal strategy is very important. It is crucial to your client’s well-being that you carefully review the contract (admissions agreement) and resolve any problems or difficulties that you can foresee before it is signed. 

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Publications : Bar Bulletin: May, 2003