Consumer Protection Issues for Massachusetts Assisted Living Residents

By Rebecca J. Benson

Introduction 

Assisted living facilities (ALFs) appeal to seniors who would like the security of round-the-clock assistance in a residential, non‑institutional environment.  They offer peace of mind and the promise of being able to “age in place.” 

ALFs offer a combination of housing, meals and personal care services to adults on a rental basis. Assisted living is appropriate for those who need help with activities such as housecleaning, meals, bathing, dressing and/or medication reminders, but does not offer medical or skilled nursing services.                     

There are no federal laws or regulations concerning ALFs.  By statute and regulation, Massachusetts ALFs are subject to certification and oversight by the Executive Office of Elder Affairs (EOEA).  This outline discusses the legal requirements for Massachusetts ALFs, mandated consumer disclosures, admission agreement requirements, and residents’ rights, including protection from arbitrary eviction. 

Consumer Protection Issues

Massachusetts ALFs typically charge monthly fees between $3,000 and $6,000.  Providers are now offering specialized “dementia care” units in ALFs, which may allow frail elders to avoid nursing home placement.  Subsidies for ALF care are available through the SSI-G, Group Adult Foster Care, and PACE programs, but not all facilities participate in these programs and the number of subsidized units is limited. 

1.  Legal Requirements for Massachusetts ALFs

Massachusetts ALFs are required to obtain and maintain certification from the Executive Office of Elder Affairs (EOEA).  By statute, EOEA is authorized to certify and review compliance for ALFs.  Massachusetts General Laws, Chapter 19D.  EOEA regulations specify the certification procedures and standards for Massachusetts ALFs, including the requirements for recordkeeping, staffing, training, and compliance reviews.  651 CMR 12.00.

2.  Mandated Disclosures

ALF providers are required to disclose their fee schedules to prospective residents, who should review the fee disclosures closely.  Otherwise, residents may be surprised to discover that the facility has imposed fees for various “supplemental” services, such as incontinence care and medication management.

ALFs are required to provide a copy of the EOEA consumer guide and certain consumer disclosures to all current and prospective ALF residents.  651 CMR 12.08(3).  Among other things, the disclosure statements must include:

  • an explanation of the eligibility requirements for any subsidy programs, including a statement of additional costs not covered by the subsidy program and an explanation of the number of available units and whether those units are shared.  651 CMR 12.08(3)(d).
  • an explanation of the limitations on the services the provider offers, including ADLs and behavioral management services.  651 CMR 12.08(3)(f).
  • staffing information, including the number of overnight staff (awake and asleep).  651 CMR 12.08(3)(b).
  • an explanation of the role of the nurse(s) employed by the ALF provider.  651 CMR 12.08(3)(g).
  • A statement of the numbers of staff qualified to administer CPR and the circumstances in which CPR will be administered.  651 CMR 12.08(3)(i).    
ALF admission agreements must include certain important disclosures as well.  651 CMR 12.08(2)(a). 

3.  Residents’ rights

Residents of ALFs are entitled to dignity, choice, independence, and privacy, among other rights.  651 CMR 12.08.  ALF providers are required to post a written notice of the residents' rights in a prominent place or places in the facility where it can be easily seen by all residents.  This notice shall include the address, and telephone number of the EOEA Assisted Living Ombudsman Program, and the telephone number of the Elder Abuse Hotline.  651 CMR 12.08(1)(u).

Among other protections, an ALF resident has the right to: 

  • Participate freely in community services and activities to achieve the highest possible level of independence, autonomy, and interaction within the community.  651 CMR 12.08(1)(f).  
  • Directly engage licensed or certified health care providers to obtain necessary health care services to the same extent available to persons residing in their own homes; and with other necessary care and service providers, including pharmacy providers.  Any ALF policy statement that sets limits on medication packaging systems must first be approved by EOEA.  651 CMR 12.08(1)(g).  
  • Manage his or her own financial affairs, unless the resident has a court-appointed fiduciary with the authority to manage the resident’s financial affairs.  651 CMR 12.08(1)(h).
  • Present grievances and recommend changes in policies, procedures, and services to the ALF provider, government officials, or any other person without interference, discrimination, or reprisal.  This right includes access to representatives of the Assisted Living Ombudsman program, Elder Protective Services, and the Disabled Persons Protection Commission.  651 CMR 12.08(1)(j).  

4.  Eviction Protection

Assisted living residents are guaranteed the same protections against eviction as are other tenants under Massachusetts landlord-tenant law.  The ALF regulations prohibit a provider from evicting a resident “except in accordance with the provisions of landlord/tenant law as established by [General Laws Chapters 186 and 239] including, but not limited to, an eviction notice and utilization of such court proceedings as are required by law.”  651 CMR 12.08(1)(r). 

ALF providers must inform residents of the community resources available to assist them in the event of an eviction procedure, including the the name, address and telephone number of the Assisted Living Ombudsman Program.  651 CMR 12.08(1)(v). 

Conclusion

 Some Massachusetts ALFs charge $5,000 per month or more for a “basic service package.”  Prospective ALF residents may want to consider seeking the assistance of a financial professional for help in evaluating a provider’s financial strength.  They should also consider consulting with counsel to review  the terms of the admission agreement.  Although the agreements are typically contracts of adhesion, in some instances, residents may be able to negotiate over the contract terms.  At a minimum, a prospective resident needs to be able to make an informed decision before signing an entrance agreement.

Resources – Assisted Living

Assisted Living Consumer Alliance (ALCA) – A national alliance to promote and preserve choice, safety, and legal rights and protections for assisted living consumers. ALCA resources include information on choosing a facility, advocacy materials, and information on medication management.  http://www.assistedlivingconsumers.org/

Eric Carlson, Critical Issues in Assisted Living:  Who’s In, Who’s Out, and Who’s Providing the Care (National Senior Citizens’ Law Center 2005) – Available on the ALCA website. 

Massachusetts Executive Office of Elder Affairs (EOEA) – Provides a Consumer Guide to Assisted Living Facilities, a list of ALRs, and other consumer information on its website.  The ALF Ombudsman program is headed by Donna Bucca.  617-727-7750.

Emily Starr, Assisted Living, Estate Planning for the Aged or Incapacitated Client in Massachusetts, Chapter 22 (MCLE 2009).  

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