Protecting the independence and autonomy of residence…….
The 1987 Nursing Home Reform Law was instrumental in transforming the mindset of long-term care providers and creating the modern senior living realm as we know it today. The law places a strong emphasis on individual dignity and independence guaranteeing them a quality of life that is similar to living in a community at large. Many states, such as Massachusetts, have adapted their own set of regulations regarding resident rights in the assisted living facility as seen below:
12.08: Resident Rights and Required Disclosures
Prior to scheduling a formal meeting with a prospective Resident, the Residence shall inform him or her of the right to be accompanied by a Legal Representative, Resident Representative, or other advisor. During its first formal meeting with a prospective Resident, the Residence shall deliver to and verbally review with the prospective Resident a consumer guide developed by EOEA and the Disclosure of Rights and Services required by 651 CMR 12.08(3), which incorporates the provisions of 651 CMR 12.08(1). At the time of or prior to the execution of the Residency Agreement or the transfer of any money to a Sponsor by or on behalf of a prospective Resident, whichever first shall occur, the Sponsor shall deliver to and verbally review with the prospective Resident, the person with whom the contract is entered into, and, if applicable, the prospective Resident’s Legal Representative a copy of the Residency Agreement, which shall state all applicable costs and terms of payment, services offered and not offered, shared risks, and all other important terms and conditions of the Agreement. All documents shall be written in plain language and published in typeface no smaller than 14 point type.
(1) Resident Rights. Every Resident of an Assisted Living Residence shall have the right to:
(a) Live in a decent, safe, and habitable residential living environment;
(b) Be treated with consideration and respect and with due recognition of personal dignity, individuality, and the need for privacy;
(c) Privacy within the Resident’s Unit subject to rules of the Assisted Living Residence reasonably designed to promote the health, safety and welfare of Residents;
(d) Retain and use his or her own personal property, space permitting, in the Resident’s living area so as to maintain individuality and personal dignity;
(e) Private communications, including receiving and sending unopened correspondence, access to a telephone, and visiting with any person of her or his choice;
(f) Freedom to participate in and benefit from community services and activities and to achieve the highest possible level of independence, autonomy, and interaction within the community;
(g) Directly engage or contract with licensed or certified health care providers to obtain necessary health care services in the Resident’s Unit or in such other space in the Assisted Living Residence as may be available to Residents to the same extent available to persons residing in their own homes, and with other necessary care and service providers, including, but not limited to, the pharmacy of the Resident’s choice subject to reasonable requirements of the Residence. The Resident may select a medication packaging system within reasonable limits set by the Assisted Living Residence. Any Assisted Living Residence policy statement that sets limits on medication packaging systems must first be approved by EOEA;
(h) Manage his or her own financial affairs, unless the Resident has a Legal Guardian or other court-appointed representative with the authority to manage the Resident’s financial affairs;
(i) Exercise civil and religious liberties;
(j) Present grievances and recommended changes in policies, procedures, and services to the Sponsor, Manager or staff of the Assisted Living Residence, government officials, or any other person without restraint, interference, coercion, discrimination, or reprisal. This right includes access to representatives of the Assisted Living Ombudsman program established under M.G.L. c. 19D, § 7, the Elder Protective Services program established under M.G.L. c. 19A, §§ 14 through 26 and the Disabled Persons Protection Commission (DPPC) established under M.G.L. c. 19C;
(k) Upon request, obtain from the Assisted Living Residence, the name of the Service Coordinator or any other persons responsible for his or her care or the coordination of his or her care;
(l) Confidentiality of all records and communications to the extent provided by law;
(m) Have all reasonable requestsresponded to promptly and adequately within the capacity of the Assisted Living Residence;
(n) Upon request, obtain an explanation of the relationship, if any, of the Residence to any health care facility or educational institution to the extent the relationship relates to his or her care or treatment;
(o) Obtain from a person designated by the Residence a copy of any rules or regulations of the Residence which apply to his or her conduct as a Resident;
(p) Privacy during medical treatment or other rendering of services within the capacity of the Assisted Living Residence;
(q) Informed consent to the extent provided by law;
(r) Not be evicted from the Assisted Living Residence except in accordance with the provisions of landlord/tenant law as established by M.G.L. c. 186 or c. 239 including, but not limited to, an eviction notice and utilization of such court proceedings as are required by law;
(s) Be free from Restraints;
(t) Receive an itemized bill for fees, charges, expenses and other assessments for the provision of Resident services, Personal Care Services, and optional services;
(u) Have a written notice of the Residents’ Rights published in typeface no smaller than 14 point type posted in a prominent place or places in the Assisted Living Residence 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; and
(v) Be informed in writing by the Sponsor of the Assisted Living Residence of the community resources available to assist the Resident in the event of an eviction procedure against him or her. Such information shall include the name, address and telephone number of the Assisted Living Ombudsman Program.
(2) Residency Agreement.
(a) The Residency Agreement shall include, at a minimum, the following:
- Charges, expenses and other assessments for the provision of Resident services, Personal Care Services, Lodging and meals;
- The agreement of the Resident to make payment of the charges specified;
- Arrangements for payment;
- A Resident grievance procedure which meets the requirements of 651 CMR 12.08(1)(j);
- The Sponsor’s covenant to comply with applicable federal and state laws and regulations concerning consumer protection and protection from abuse, neglect and financial exploitation of the elderly and disabled;
- The conditions under which the Residency Agreement may be terminated by either party, including criteria the Residence may use to determine whether the conditions have been met, and the length of the required notice period for termination of the Residency Agreement;
- Reasonable rules for the conduct and behavior of staff, management and the Resident;
- The Residents Rights required by 651 CMR 12.08(1);
- A clear explanation of the services included in any fees, a description and itemization of all other bundled services as well as an explanation of other services available at an additional charge;
- An explanation of any limitations on the services the Residence will provide, specifically including any limitations on services to address specific Activities of Daily Living and behavioral management. Such explanation shall also include a description of the role of the nurse(s) employed by the Residence, and the nursing and personal care worker staffing levels;
- An explanation of the eligibility requirements for any available subsidy programs, including a statement of any costs associated with services beyond the scope of the subsidy program for which the Resident or his or her Legal Representative would be responsible;
- The refund policies for all Administrative Fees, deposits, and other charges; and
- A copy of the Residence’s medication management policy: its Self-administered Medication Management (SAMM) policy, including its policy on assistance with as-necessary or PRN medication when part of the SAMM plan; and, if applicable, Limited Medication Administration. If the Disclosure of Rights and Services required by 651 CMR 12.08(3) fully states all of the items required by 651 CMR 12.08(2)
(a)4., 7., 8., 10., 11. and 13., the Residency Agreement may, incorporate those requirements by reference.
(b) The Residency Agreement may include the agreement of the Sponsor to provide or arrange for the provision of additional services, including, but not limited to, the following:
- Barber and beauty services, sundries for personal consumption, and other amenities; and
- Local transportation for medical and recreational purposes.
(c) The Residency Agreement shall be for a term not to exceed one year and may be renewable upon the agreement of both parties.
(d) The Residency Agreement shall be for a single or double living Unit in the Residence with lockable entry doors on each Unit which meet the bathroom, Bathing Facility and kitchenette requirements of 651 CMR 12.04(1).
(e) A Residency Agreement for a Residence receiving funding through MassDevelopment pursuant to M.G.L. c. 23A, which otherwise meets the requirements of 651 CMR 12.08(2), may be executed for an initial period not to exceed 13 months.
(f) A Resident may voluntarily agree to vacate his or her Unit in accordance with his or her Residency Agreement. A Resident may not be evicted from the Resident’s Unit following termination of the Residency Agreement except in accordance with the provisions of landlord/tenant law as set forth in M.G.L. c. 186 and c. 239.
(3) Disclosure of Rights and Services. The disclosure statement shall include, at a minimum, the following:
(a) The number and type of Units the Residence is certified to operate;
(b) The number of staff currently employed by the Residence, by shift, an explanation of how the Residence determines staffing, and the availability of overnight staff, awake and asleep, and shall provide this information separately for any Special Care Residence within the Residence;
(c) A copy of the list of Residents’ Rights set forth in 651 CMR 12.08(1);
(d) An explanation of the eligibility requirements for any subsidy programs including a statement of any additional costs associated with services beyond the scope of the subsidy program for which the Resident or his or her Legal Representative would be responsible. This explanation should also state the number of available Units, and whether those Units are shared;
(e) A copy of the Residence’s medication management policy, its Self-administered Medication Management policy for dealing with medication that is prescribed to be taken “as necessary”, and an explanation of its Limited Medication Administration policy;
(f) An explanation of any limitations on the services the Residence will provide, including, but not limited to, any limitations on specific services to address Activities of Daily Living and any limitations on behavioral management;
(g) An explanation of the role of the nurse(s) employed by the Residence;
(h) An explanation of entry criteria and the process used for Resident assessment;
(i) Statement of the numbers of staff who are qualified to administer cardio pulmonary respiration (CPR), and the Residence’s policy on the circumstances in which CPR will be used;
(j) An explanation of the conditions under which the Residency Agreement may be terminated by either party, including the criteria the Residence may use to determine whether conditions have been met, and the length of the required notice period for termination of the Residency Agreement;
(k) An explanation of the physical design features of the Residence including that of any Special Care Residence;
(l) An illustrative sample of the Residence’s service plan, an explanation of its use, the frequency of review and revisions, and the signatures required;
(m) An explanation of the different or special types of diets available;
(n) A list of enrichment activities, including the minimum number of hours provided each day;
(o) An explanation of the security policy of the Residence, including the procedure for admitting guests;
(p) A copy of the instructions to Residents in the Residence’s Disaster and Emergency Preparedness Plan;
(q) A statement of the Residence’s policy and procedures, if any, on the circumstances under which it will, with the member’s permission, include family members in meetings and planning;
(r) Each Residence that provides special care shall provide a written statement describing its special care philosophy and mission, and explaining how it implements this philosophy and achieves the stated mission.
(s) If a Residence allows non-Residents to use any of its facilities, such as a swimming pool, gymnasium or other meeting or function room, it shall disclose the fact of such usage to its Residents. Said disclosure shall:
- inform the residents of the existence of non-regulated programming on site;
- disclose the amount of interaction or shared use of the facilities; and
- describe any resultant impact on Residence staffing
- Develop a committee of residents, such as a resident council, to assist with the upholding of resident’s rights. Use this council to get a pulse of the community and stay in touch with what your residents are going through.
- Work with the EOEA and the local ombudsman closely to promote the standards of resident rights within your community.