Planning for Life

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

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.

Effective January 1, 2019, the Executive Office of Elder Affairs (EOEA) requires all Massachusetts assisted living providers to provide a standard consumer disclosure statement with each new residency contract.  According to a Memorandum from EOEA, the mandated disclosure is intended to explain issues that are often overlooked or misunderstood when people choose to move into assisted living, particularly issues of fees and services that are included (or not included) in the agreement.  Among other things, the disclosure states that assisted living residences are not the same as nursing homes, cannot provide skilled care and are not required to have nurses on-site. 

By Harry S. Margolis

Assisted living facilities often require that new residents pay a one-time "community fee" as well as 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.