With some senior living communities seeing a higher average age and acuity level in residents, due at least in part to the desire to age in place, now is a good time to start thinking about the legal issues that could arise, according to a lawyer speaking at a session during the National Investment Center for the Seniors Housing & Care Industry’s Regional Symposium in Boca Raton, Fla.
What’s happening is that some residents in a community’s independent living sector may not want to transition into a higher level of care, despite indications that they should. And there’s no clear, universal ruling on what the protocol is in these types of situations, especially because of disability discrimination laws.
Maintaining Marketing While Avoiding Discrimination
Some operators embrace aging and place and try to “hang onto as many people as we can, in a safe way,” including W. Keith Kreidel, the Chief Operating Officer of Haskell Senior Living Solutions, who spoke at the session.
This does have marketing implications, however, regarding the types of potential residents a community wants to attract in light of the age and acuity of current residents. Operators have to be very careful about disability discrimination laws, says Paul Gordon, a partner at law firm Hanson Bridgett, LLP, who facilitated the session.
There have already been a few disability discrimination cases (coming to mind is the dining room dispute at Virginia CCRC Harbor’s Edge), and Gordon says the courts have been uniform in saying that a “non-disabled” atmosphere an operator may want to create in independent living, including in an independent living dining room, is not a lawful reason to put any kind of restriction on disabled people.
“You have to try to manage the dining room experience—there’s a fine line you walk, where you have to figure out how to comply with the law and provide the dynamic dining experience that’s been marketed,” says Kreidel.
“Safety or care issues may be legitimate,” Gordon told the NIC audience. “But putting restrictions on people with mobility devices– if it has to do with aesthetics and marketing appeal, that’s illegal, and you will lose [your case]. The U.S. Department of Justice is very aggressive in pursuing these cases.”
Home Care Services: Outsourced or Private?
Legal issues stemming from higher acuity are mainly found in independent living, which provides housing and other hospitality services, but is not licensed to provide care. Some operators allow residents to hire private duty aides or home health care services, but even this comes with its own set of complications.
During the session, both Gordon and Kreidel recounted instances where third parties (such as private duty aides or other types of care services) robbed or even murdered independent living residents.
Rather than allow residents to hire outside sources, operators may want to think about providing their own home care on a fee-for-service basis, and that’s what Haskell Senior Living Solutions has done.
“We’re providing care with staff trained by us, [allowing our communities] control from the risk standpoint of employees providing care in residents’ apartments,” says Kreidel.
It’s better to get control over private duty and provide services yourself from a legal standpoint, says Gordon, and there are other benefits as well. “It’s another revenue stream, and it creates a further bond with the resident,” he says, although he added that it could take time to implement this, as some residents already have a private duty aid and may not be willing to switch.
Another issue an audience member mentioned is that some of these home care service providers may not be actually qualified to provide the types of services they’re giving, but because it’s independent of the senior living community, operators have no control over whether residents are receiving adequate or proper care.
For these sorts of cases, it could be a good idea for service providers to list what services they are qualified to provide, and have residents sign off on it, says Gordon, who recommended that operators revamp their policies and guidance on who’s allowed into a community.
“You need to control and know something about the people you’re letting into residences. If we don’t police this ourselves, then the government will come in and provide that policing,” says Kreidel. “It’s a good conversation to have. From an industry standpoint, what are the kinds of things that we want to provide, with a view in mind that we have to set some standards so that others won’t come and set standards for us?”
Investor Considerations
Investors in the audience said they’re looking at the same sorts of things providers are, including risk management and returns—understanding shorter lengths of stay and what it means for expenses and marketing.
“These issues are part of the ongoing discussion,” said one investor who’s involved in joint venture partnerships. “Can buildings be licensed to provide care? And if they are, how do you deal with stigma of transitioning through levels?”
Define Your Service Identity
With these types of issues, it’s important for operators to know—and know well—what kinds of services they’ll be providing, says Gordon.
“There’s a tendency to want to expand services; [operators think] ‘If we have to lose this customer because of their need for services, let’s expand services,'” he said. “But they may be getting out of their element.”
Although some companies may voluntarily choose to expand their services to be able to meet the needs of a wider audience, it’s not necessary to do so, he continues.
That’s what was decided in what was possibly a precedent-setting case, Herriot v. Channing House, in which a judge ruled in favor of a Palo Alto, Calif.-located CCRC. The court decided that a resident whose acuity had increased since entering independent living years before could not remain in that level of care, and needed to transition to a higher level, even though it was against her wishes.
“The court said that even though disability discrimination laws do apply in these types of situations, the law has an exception: You don’t have to fundamentally alter the nature of your business in order to comply with the nature of your community,” Gordon says. “You don’t have to become a nursing facility in order to accommodate someone who requires nursing care, if you’re assisted living.”
One of the key aspects of a CCRC is that a resident moves through levels of care as they need to, the lawyer continued, and this is a fundamental characteristic of CCRCs.
Gordon named another case where four plaintiffs believed they had been evicted from independent living wrongfully, but a judge found that their needs were too great in their current setting even with the support of private duty aids.
Written by Alyssa Gerace
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