Planning for Life

By Harry S. Margolis

With seniors being most vulnerable to COVID-19 and many living in the concentrated clusters of nursing homes and assisted living facilities, many are taking drastic measures to bar visitors who might bring in the coronavirus. This has been difficult for many residents and their families. Here is part of an email we received from one Massachusetts grandson about his grandmother:

My family received a call yesterday from my grandmother's nursing facility which is a Wingate. That call stated that they will no longer be allowing any visitors in to visit patients of the facility and that they will be going on a week to week basis of deciding whether to lift the isolation of the entire facility or not.

By Harry S. Margolis

As we've reported in a previous blog posts (here and here), a case challenging the practice of assisted living facilities charging a "community fee" on entering the facility has been wending it's way through the Massachusetts court system over the last several years. Now, the Supreme Judicial Court has ruled in James M. Ryan v. Mary Ann Morse Healthcare Corp. (SJC-12708, Dec. 5, 2019), that assisted living facilities are subject to landlord-tenant law including its security deposit regulations. The assisted living facility industry had been arguing that the landlord-tenant laws were preempted by assisted living statutes and regulations.

By Harry S. Margolis

An op-ed article in The New York Times highlights how the assisted living industry in part profit from a mirage about the realities of aging. No one wants to go to a nursing home, which are seen a depressing dumping ground for ailing or demented seniors who have no other choice. Many seniors and their families choose assisted living as a much preferred option.

For those seniors who are healthy, assisted living can be wonderful. They provide meals, community, activities, and some assistance with the activities of daily living. Living in assisted living is often a much better alternative to an isolated existence in a single-family house.

By Harry S. Margolis

A case before the Supreme Judicial Court will either affirm or block the application of landlord-tenant protections to assisted living residents. At immediate issue in the case is whether assisted living facilities can charge so-called "community fees," that are extra payments that don't fall within the limits of landlord-tenant laws on first and last months' rent and security deposits. The lower courts are split on this issue. (Read what we wrote about one of the underlying cases here.)

The Arguments

The assisted living industry argues that landlord-tenant law is preempted by Chapter 19D which provides the rules under which assisted living facilities must comply. Residents' advocates say that there's no preemption because Chapter 19D does not address the rights of facility residents.

By Harry S. Margolis

The U.S. District Court for Boston has ruled that the estate of a deceased resident of the Brookline Health Care Center (BHCC) can pursue its claim that the facility violated the Consumer Protection Act, often referred to by its statutory reference, 93A.

Sarah Theresa Libby died after choking at BHCC on May 7, 2014. This occurred "when she was left unsupervised to eat in the dayroom of the nursing home in which she resided." Mrs. Libby's estate brought suit for wrongful death in Estate of Sarah Theresa Libby v. Park Marion and Vernon Streets Operating Company (U.S. Dist. Ct. Boston, C.A. No. 17-10843-JGD) for negligence and violation of the Consumer Protection Act. The 93A claim carries with it the threat of treble damages and the facility being responsible for the plaintiff's legal fees.

By Harry S. Margolis

Assisted living facilities often require that new residents pay a one-time "community fee" as well as the last month's rent before moving in. A resident of one of Benchmark Senior Living's 29 facilities in Massachusetts recently sued the company alleging that this practice violates protections for tenants. Benchmark responded that as an assisted living facility it is not subject to the same rules. This has long been a claim of the assisted living industry, and it was refuted by the judge in this case.

By Harry S. Margolis

In 2015, I heard a presentation by Michael Banville, acting president of the Massachusetts Assisted Living Facilities Association (MassALFA), in which he provided information about trends in the assisted living industry in Massachusetts, including the following: