When aging parents come to the point when assisted living seems like the best choice, it is usually their baby boomer children who see it first. Perhaps the adult children live in another state. Perhaps they are unable to visit Mom or Dad often enough to feel comfortable leaving them alone. The death of a spouse or a gradual loss of independence in self care-any of these reasons may lead to the adult child\’s decision to move the parent. As an assisted living facility representative is likely to tell you, it is often the adult children who first come to look the place over, later bringing their parents to see the place for themselves. These adult children are the hidden consumers of services. Assisted vs Nursing Home As the hidden consumers, what do the adult children of aging parents need to understand about these facilities? Very simply: what the facility can\’t do. Invariably, the sales pitch tells you what the facility can do, which is fine, and to be expected. But as a consumer, you must understand the difference between assisted and nursing care. First, an assisted living facility is not a nursing home with fancy furniture. Assisted living is not licensed to give nursing care. Typically, assisted living facilities are places where elders live in a supervised community, with some personal care services available. Meals, social activity, and help with the activities of daily living such as bathing and dressing are all usually offered at such facilities. The focus is on providing a healthy social environment and preventing social isolation. It is a worthy focus, as isolation is dangerous, and widespread among elders whose independence is declining. If your parent is in fragile health and seems to be steadily declining physically or mentally, be cautious about choosing an assisted living facility over a nursing home (also known as a skilled nursing facility). No one chooses a nursing home first. Nursing homes are more like hospitals, as they must be to deliver skilled care to frail seniors. But if your aging parent needs nursing care, and must be watched day and night, or you believe that he or she is likely to need such supervision in the near future, it is the only choice. Assisted living facilities are not licensed by Medicare or Medicaid to give skilled care. Some have a separate skilled nursing facility on-site or nearby, but it will have its own license to deliver skilled nursing care. That license does not apply to the assisted living component, even the two facilities are located on the same campus or are operated by the same parent company. Doctors & Nurses Not Required Many assisted living facilities do not have any licensed nurse on staff, and may have no nurse connected to them at all. Because they are considered non-medical facilities, having a licensed nurse is not required by law. Even if a nurse is employed by the assisted living facility, the nurse cannot give hands-on care in the form of dressing a wound, administering around-the-clock insulin, administering oxygen, or other tasks that are defined by the federal and state governments as ’skilled nursing care.’ Skilled nursing care may only be administered within a facility that is licensed to do so. Legally, this kind of facility is licensed as a skilled nursing facility, although it may have a different business name that it markets itself as, such as an ‘extended care’ or ‘long-term care’ facility. Medicare and Medicaid also designate these homes as skilled nursing facilities. Because skilled nursing facilities bill Medicare and/or Medicaid for skilled nursing care, they must comply with many complex legal regulations and requirements. Assisted living facilities are regulated by the state Department of Social Services, not the Department of Health, which regulates nursing homes. Assisted living facilities do not have the same safety or administrative requirements as a skilled nursing facility, and they are prohibited from giving care they are not licensed to give. Limitations to Specialized Care Waivers There are exceptions to some of the federal and state government\’s licensing requirements. For example, a licensed assisted living facility may take care of residents with dementia, including Alzheimer\’s disease, if it has a waiver to accept this kind of resident. The facility must also have certain protections in place to prevent injury to its demented residents. However, it is still prohibited from restraining a demented resident who has a tendency to wander. There are many other limitations to what an assisted living facility can do, even with waivers. Taking care of residents with dementia can be unpredictable, and skilled nursing can become necessary as the disease progresses. When an aging parent has to move out of the family home, or out of a long-term residence of any kind, the move can be difficult, even traumatic. If you are considering assisted living as an option for your loved one, be sure your focus is on the long run. Carefully consider what he or she will need a year down the road. Moving an elder twice within a short period can be extremely hard on both of you, so make your decisions based on the overall picture, not just on what the assisted living facility can do for him or her right now. As hidden consumers, adult children must be fully aware of the limits of assisted care. Assisted care facilities can be wonderful and supportive environments for residents who don\’t need skilled care. If you are considering assisted living for your aging parent, be sure this kind of place is a match for your parent\’s needs.

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Please visit the Gilbert Guide for the very best in Assisted Living Care and for more information about Assisted Care.

Assisted living is a term usually used in conjunction with senior citizen homes. It includes assistance with the daily activities of life, helping residents with administration of medication or personal care by trained staff, and monitoring of activities to make sure that the residents are safe and taken care off.  This can be true for anyone who is not able to do his or her daily life activities but it is usually the provided for senior citizens, mentally and physically challenged, and the people who are suffering from a chronic disease that make them dependent on others. It is actually a philosophy of provision of care and services in order to enable them to lead a dignified life.

Assisted living facilities are licensed at the state level. Assisted care living facility, Personal care homes, and Old people’s homes are some of the names used for such facilities.   Such facilities are a way to make sure that a standard of care and concern will be provided to the people who cannot do so for themselves.

Assisted living facilities cannot be compared or equated with Nursing Homes for there are mark differences between the two.

• Nursing homes employ licensed medical professionals such as nurses, doctors and paramedical staff, who provide medical services to its residents.  Non-medical staff usually provides assisted living facilities and if they have licensed medical practitioners on their staff, then their responsibilities are usually limited to providing routine medical services.

• There is greater preference over privacy and personal care in assisted living facilities.

There are about one million Americans staying in assisted living facilities. Thereby, much emphasis is on such assisted living facilities rather than the Nursing Homes.
A typical assisted living facility is usually a renovated Victorian house or school that has large and spacious areas where all residents can dine together, have a recreational and social activity that helps in bonding everyone as one big family and not feel the absence of their loved ones.
Some of the services provided in assisted living facilities are preparation and serving of timely meals, laundry and ironing of personal clothing and linens, administration of medication, supervision of outdoor and indoor activities, reading and engaging in hobbies that interest the residents so as to keep the zeal for living ignited in them.

While looking for an assisted living facility, one should consider what would be best for their particular circumstances. For most people, cost and location are the number one deciding factors. Second comes the reputation of the place. Is the staff well trained? Is it a licensed facility and is it safe?
Most of the assisted living facilities are opened both for monitory and non–monitory means. A few are opened in order to make profits while others are opened as a social services or a charity that works for a cause. Before the legalization of such facilities, they were all privately owned. But, fortunately the requirement of licensure have regularized and improved the quality of services provided in most assisted living facilities.

No one wants to be dependent on others for the basic and everyday activities of life. Life circumstances beyond one’s control can force one to lead a dependent life. However, one still has the ability to choose a dignified assisted life over a completely dependent and disgraceful living.  

Assisted living facilities provide one with this choice – a choice to be able to do what one can and at the same time get assistance for what one must.

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Senior assisted living is a term associated with providing residential and medical assistance to the elderly citizens on a regular basis. The assisted living facilities can provide a healthy and happy environment to support living for your loved ones.

Assisted living or residential care is a type of arrangement that provides personal care services and assistance to daily living. It is closely similar to nursing home care, but the only difference is the independence freely granted to the residents as they can receive services in their own residential setting.  The activities that are included in assisted living can range from bathing, dressing, toileting, walking, and etc.

The scope of services under assisted living varies from state to state due to licensing requirements. The state regulations that allow those services offered under assisted living facility are not standardized. Some types of assisted living services are offered in one state but many or may not be available in other states. However, a recent ruling is pursued to mandate the state legislature to come up with unified model of assisted living for all states.

Assisted living normally suffices the inadequacies in home care and nursing homes. Before, a person had to stay in a nursing home even though the services deprive a person with independence. Nowadays, assisted living benefits those who want home-like environment while receiving assistance for daily living or treatments without a compulsory 24-hour nursing care.

Assisted living facilities are more comfy than those in hospitals or nursing homes. Newly renovated facilities are themed in apartment style with private rooms or suites. Some assisted living facilities look as if you were in five-star hotel with cafeteria, gardens, atriums, and more. A cozy dining area is where seniors gather together and share experience while having a good meal. The environment is tranquil and relaxing for seniors that make them feel at ease even though far from home. A lot of social activities such as outings and games are organized for seniors to mingle with other adults and to keep them physically fit. Overall, the architecture in assisted living facilities is more decent than those in nursing homes and hospital, and the services offered are far better.

Many assisted living facilities allow home health agencies to provide services for its residents. Some assisted living facilities have in-house nurse or therapist to assist elders with health problems. Some states allow assisted living to include some kind of nursing home services. The main reason why some type of nursing care is allowed is because many residents particularly those 65 and above are frail and more prone to sickness, so nursing care should be readily available in the facility.

Some assisted living offers specialized care for certain ailment/s. For example, there are assisted living facilities that focus on Alzheimer\’s patients. Facilities rendering services for Alzheimer\’s normally have specialized type of care and supervision to help the patients survive the sickness.

However, not all ALF residents need care or assistance. Some elders stay there to greet adulthood with full compassion and live simpler life together with the adults who share the same dilemmas. Most residents have chosen to stay in AFL than in retirement communities to secure independence and protection. As they become older, they will need more intensive care that can be provided in assisted living facility. Assisted living always provides home-like environment and experiences for seniors whose years left are counted.

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Assisted living facilities are rapidly becoming the nursing homes of the future. According to the National Academy for State Health Policy, more than 36,000 licensed facilities are operating nationwide.[1] Because there is no common definition for these facilities, however, this number may not adequately reflect their prevalence.

Although most litigation in the long-term-care field over the last 10 years has involved nursing homes, suits against assisted living facilities are mounting. One reason is that these facilities are not regulated by the federal government, and the state regulations that exist are inconsistent and, for the most part, lax in enforcing industry standards.

In an attempt to compete with nursing homes, assisted living facilities are accepting residents with greater medical needs or significant cognitive impairment. Most major chains promote special Alzheimer\’s disease units, but the reality is that staffing in many of these facilities is inferior to that in nursing homes and simply cannot meet the needs of these residents.

Neglect in assisted living facilities can result in falls, fractures, sexual or physical abuse, pressure sores or other skin breakdown, malnutrition, depression, immobility, and even death. For example, one assisted living facility admitted an elderly alcoholic undergoing detoxification who required close supervision and care. An employee allegedly provided him with a lighter and cigarettes, then left him unsupervised. The resident set himself on fire.[2]

In other cases where supervision was severely lacking, people who tended to wander were admitted into facilities that were not set up to prevent this behavior. Wanderers mostly suffer falls and fractures, but some who have ventured out during winter months have died from hypothermia. One unfortunate resident wandered into the path of a moving train and was killed.

In several cases, assisted living facilities accepted severely ill patients who either had or were at severe risk for developing pressure sores, even though these facilities are not equipped to provide the skilled care—including tube feeding, catheterization, and daily turning and positioning—necessary to prevent or treat them. These residents developed severe pressure sores as a result of improper care.

These scenarios are not uncommon, but a lack of reporting requirements, state investigation, and active litigation has allowed assisted living facilities to continue operating under far less scrutiny than the nursing home industry.

Admission criteria

When a facility accepts residents whose needs or acuity levels exceed the staff\’s skill or training, it opens itself up to legal liability. In most jurisdictions, liability can be determined by the state\’s admission criteria.

For example, Virginia regulations prohibit assisted-living facilities from admitting or retaining patients who have stage III and IV pressure sores; who are ventilator dependent; who require nasogastric tubes, intravenous therapy, or injections directly into the vein; and who need continuous licensed nursing care.[3] Other states have similar limitations.[4]

These are some common state law criteria that would preclude a person\’s admission to assisted living facilities:

1. is a threat to self or others[5]

2. has a contagious or an infectious disease[6]

3. requires care beyond the facilities\’ skill[7]

4. requires physical and/or chemical restraints[8]

5. requires 24-hour nursing or other care[9]

6. is bedridden[10]

7. requires specialized long-term care[11]

8. has stage III and/or IV pressure sores[12]

9. requires more than minimal assistance in moving to a safe area during an emergency[13]

10. is less than 18 years old[14]

11. requires help with tube feeding[15]

State regulations that set forth specific admission criteria can be used to set the standard of care in your jurisdiction. Even in states that have no criteria, the community-practice standard would dictate that an assisted living facility may not accept a patient whose needs it cannot meet. However, the lack of case precedent and strong regulatory standards poses significant—although not insurmountable—obstacles to successful litigation.

Case selection

The first step in evaluating your case will be to get the records from the facility, including the signed contract, which should define the duties the facility agreed to undertake.

Most assisted living facilities offer various levels of service. Basic service might include only room, board, and activities. The highest service level might include assessment of physical and mental health, care or service planning (a multidisciplinary process in which various providers come up with a unified plan to address the resident\’s physical, mental, and psychosocial needs), medication administration, and nursing care (assistance with bathing, feeding, and grooming). These facilities are like nursing homes that do not provide skilled care, and arguably they should be held to the same standard of care.

You will also need to submit a Freedom of Information Act (FOIA) request to identify the corporate entity that owns and operates the facility. The license should always be available from the local regulatory agency in charge of licensing and inspecting the facility; it may include information about the scope of services that the facility is authorized to provide.

In your FOIA request, also seek access to results of surveys and inspections of the facility conducted by the local department of social services. Do not expect these reports to contain the wealth of information typically included in such reports on nursing homes: Often they do not include assessments of whether the facility is complying with regulatory standards.

Once you have obtained these records, have a reliable nursing expert review the case. Because many nurses who work in the assisted living industry are licensed practical nurses, not registered nurses, they may lack the background you need, so you may need to retain an expert from outside the field. If a case involves a relatively simple issue like a fall, you may not need a liability expert.

Working with your expert, consider these factors when deciding whether to accept a case:

1. The nature of the resident\’s condition upon admission. If he or she was mentally competent and living independently, contributory negligence and comparative fault defenses will pose significant hurdles.

2. The nature of the contract and duties the facility assumed. If the facility agreed to provide only room and board, the defense will argue that its duties are comparable to those of a landlord in an apartment building.

3. The quality of the relationship between the resident and his or her personal representative. If the resident is deceased, this issue may take on a greater importance: The nature of that relationship may determine what damages are available under the applicable wrongful death act.

4. Whether the family members make good fact witnesses, appear genuinely outraged by the facility\’s conduct, and complained and/or removed their loved one from the facility.

Whether the facility had serious staffing shortages or a pattern of neglecting its residents.

5. Whether the resident suffered a significant injury in the facility that will adversely affect the quality of his or her life in the future, or that caused his or her death.

6. Whether you have strong witnesses and powerful exhibits. Do you have an insider who is willing to blow the whistle on rampant staffing shortages? Do you have color photos of the resident\’s pressure sores or compound fracture?

7. Whether the client has significant economic damages that are not encumbered by a Medicare or Medicaid lien.

8. Whether the defendant is a charitable organization, religious affiliate, or part of a large assisted living chain. Charitable organizations tend to be more sympathetic defendants, and some states have statutory limits on their liability.

Liability theories

Attorneys who file claims against assisted living facilities can be creative in developing liability theories. However, don\’t complicate your case with unnecessary theories, and remember that the scope of discovery may be affected by the ones you advance.

Common law negligence. This is probably the most common liability theory in assisted living cases. Make sure you do not plead breaches in medical or nursing standards of care, or you may face the argument that you have pleaded a traditional medical malpractice case.

Instead, plead the breach of regulatory and/or industry standards that proximately caused your client\’s injury. Because assisted living facilities are not traditional health care providers, these cases should not be subject to damages caps or discovery limitations such as quality assurance privileges that would apply to medical negligence claims. A quality-assurance or peer-review privilege is typically asserted over any documents created to improve the quality of care in that facility—such documents can include incident reports, meeting minutes, or internal memos addressing any problems.

Violations of the state consumer protection or “adult protection” act. Many states have statutes that allow a private right of action for neglect committed in assisted living facilities.[16] Plaintiffs have advanced consumer protection theories even against health care providers,[17] so there should be no reason why such theories can\’t be applied against an assisted living facility.

For example, one U.S. district court upheld consumer-protection and fraud-based claims against Manor Care, Inc., an assisted living provider that allegedly persuaded a resident to enter the facility with misrepresentations about staff ratios and training.[18] Ask your client what representations the facility made, and obtain any marketing brochures.

One advantage to filing under state consumer- and adult-protection statutes is that they allow for recovery of costs and attorney fees. While some states specifically exempt health care providers from such statutes,[19] these exemptions should not apply to assisted living facilities.

Breach of contract. Almost all assisted living facilities require prospective residents to sign a contract as a condition of admission. Scrutinize the contract for waivers of liability or of the resident\’s right to a jury trial. Facilities can assert such waivers whether or not a plaintiff pleads a separate breach of contract claim. Usually such waivers impose mandatory arbitration of all claims, including tort and contract claims.

Most states limit contract damages to foreseeable economic damages, so don\’t plead this as your only liability theory. However, the contract may have required that certain services be delivered to the resident—activities, assistance with daily living, 24-hour supervision—that were not provided. If the resident did not suffer physical injury from the facility\’s failure to deliver services, the defense will argue that evidence of such failures should be excluded at trial. You can argue that this evidence is admissible to prove contract damages and to recover monies for services that were not provided.

The defense may respond that contract damages would be based on speculation, since the plaintiff failed to quantify the services that were not provided. To preempt this argument, have your client provide a good-faith estimate of the percentage of services that he or she did not receive.

If you have a strong negligence claim based on a discrete event, such as a fall that caused a hip fracture, you may prefer to omit the contract claim to avoid confusing the jury with collateral facts and issues unrelated to your client\’s damages.

Negligent hiring and/or retention. Consider this claim when the case involves intentional torts, such as assault, committed by an employee who the defendants knew or should have known was a potential danger to residents. Obtain the employee\’s personnel file early in litigation; if you discover evidence of the defendant\’s knowledge, amend the complaint to include this claim before the statute of limitations expires.

Also consider suing the employee individually. If the same defense firm represents both the employee and the corporation, it will be difficult for the defense to argue that the employee was not operating within the scope of his or her employment.

When the case involves an intentional tort, always check the terms of the facility\’s insurance coverage to determine whether any exclusions apply. If the policy excludes coverage for intentional torts, you may want to dismiss the claim against the employee after you have obtained a ruling that he or she acted within the scope of employment. Then, if you recover damages against the facility under a general negligence theory, this ruling will make it difficult for the defense to argue in a subsequent declaratory judgment action that liability insurance coverage for torts does not apply.

Wrongful death. When there is evidence that the facility\’s negligence caused or contributed to the resident\’s death, you should assert wrongful death and survivorship claims. Also plead any claims for injury that did not contribute to the death with your survivorship claims.

Determine what damages you can recover under the wrongful death statute in your jurisdiction. If the law allows only economic damages, you may decide to forgo a wrongful death claim.

Punitive damages. Economic damages in an assisted living case usually are not impressive because most residents are too old or infirm to hold jobs, and any preexisting conditions that your client has may weaken the compensatory damages claim. Therefore, plead punitive damages whenever possible. Making a punitive damages claim will also provide a basis for exploring the defendant\’s conduct toward other residents who experienced neglect similar to your client\’s. Courts around the country have upheld such claims against nursing homes,[20] and these precedents should apply to assisted living facilities.

Essential experts

In almost every assisted living case, you will need experts to establish causation and damages. Since many residents injured in assisted living facilities require long-term care in a nursing home, consider obtaining a life-care plan from a qualified expert. In most cases, you will need a medical expert to establish causation, support the life-care plan, and testify to life expectancy. When determining whether the facility breached regulatory or community-practice standards in admitting a resident whose needs exceeded its capabilities, have an expert evaluate the resident\’s condition and the relevant admission criteria.

Be prepared for a battle over the admissibility of your experts\’ testimony. Selvin v. DMC Regency Residence, Ltd., a Florida case, is a good example.[21] In Selvin, an elderly resident of an assisted living facility wandered off and was found dead in a nearby canal. The plaintiff alleged two separate theories of liability: The first was a statutory wrongful death action, and the second was based on alleged violations of statutes relating to assisted living facilities.

The plaintiff claimed that the facility had a common law and statutory duty to supply at least the level of services and care that all licensed assisted living facilities generally furnish residents of the decedent\’s age and health condition.

The plaintiff sought to introduce expert testimony that specific safety precautions that the defendant had not taken were the industry standard, including building a fence to prevent elderly residents from wandering near a dangerous area of the canal. The trial court excluded this testimony, finding that the facility had no legal duty to fence off the canal to the general public.

The appellate court reversed, finding that the facility\’s undertaking to furnish certain services created a legal duty to protect residents. The court also held that the trial court had erred in excluding the expert\’s testimony regarding industry standards.

Experts may also be helpful in cases involving falls, depending on the facts of the case. If the facility\’s staff simply dropped the resident during a transfer or made some other obvious mistake, an expert may not be necessary.[22] In more complex cases, an expert will help the jury understand the facility\’s negligence in failing to implement adequate fall-prevention measures.

For example, if the resident came to the facility with multiple risk factors for falling—such as dementia, unstable gait, arthritis, or a history of falls—that were never assessed or planned for, and fell while wandering the hallway, retain an expert to discuss how the standard of care for fall prevention was breached. To establish causation, the expert will testify that if the facility had followed appropriate standards, the fall, more likely than not, would have been prevented.

As the use of experts in assisted living cases is an area of first impression in many jurisdictions, educate the court with a trial memorandum addressing your expert\’s testimony before trial.

Liability for negligence by assisted living facilities is a new and evolving area of the law, and attorneys who litigate these cases should strive to establish favorable precedent for those who follow. These claims, like those involving nursing homes, help protect the rights of elderly Americans by ensuring that the industry follows standards to keep facility residents safe.

Notes

[1]ROBERT L. MOLLICA, STATE ASSISTED LIVING POLICY: 2000, at 3 (Nat\’l Acad. for State Health Pol\’y (Portland, Maine) Nov. 2000).

[2] Holt v. Clarksville Residential Care Ctr., No. 50300430 (Tenn., Montgomery Cir. Ct. filed Nov. 11, 2002).

[3] 22 VA. ADMIN. CODE §40-71-150(F) (West 2003 & Supp. 2004).

[4] For example, Montana law prohibits assisted living facilities from admitting patients who are a danger to self or others (aside from being at risk of leaving the facility), in need of physical or chemical restraints, or have severe cognitive impairments rendering them incapable of expressing needs or making basic care decisions. MONT. CODE ANN. §50-5-226 (2002). Florida law prohibits admission of residents who require 24-hour nursing care. FLA. STAT. ch. 400.426(12) (2003).

[5] See, e.g., IOWA ADMIN. CODE r. 321- 25.23(3)(c)(231C) (2004); TENN. COMP. R. & REGS. 1200-8-11-.05(6) (2004).

[6] See, e.g., FLA. ADMIN. CODE ANN. r. 58A-5.0181(1)(b) (2003); UTAH ADMIN. CODE 432-270-10(5)(b) (2003).

[7] See, e.g., IDAHO CODE §16.03.22- 422.07.a (Michie 2003); OR. ADMIN. R. 411-056-0020(1)(a)(A) (2004).

[8] See, e.g., ARIZ. ADMIN. CODE R9-10-705.1 & .2 (1998); MISS. REGS. pt. I §A-122.1.b(1) & (2) (2003); MONT. CODE ANN. §50-5-226 (2003); TENN. COMP. R. & REGS. 1200-8-11-.05(8) (2004).

[9] See, e.g., N.M. ADMIN. CODE tit. 7, §8.2.19 (B) (2004); S.D. ADMIN. R. 44:04:04:12.01.(1) (2000); WIS. ADMIN. CODE §HFS83.06(1)(a) 4.a (2000).

[10] See, e.g., MO. REV. STAT. §198.073.1 (2003).

[11] See, e.g., N.J. ADMIN. CODE tit. 8, §36- 4.1(f) (2004).

[12] See, e.g., D.C. CODE ANN. §44- 106.01(e) (2) (2004); MISS. REGS. pt I §L-122.1.b(1) & (2) (2003).

[13] See, e.g., 210 ILL. COMP. STAT. 9/75(c)(5) (2003).

[14] See, e.g., D.C. CODE ANN. §44-106.01.(c) (2004); N.M. ADMIN. CODE tit. 7, §8.2.19 (2004).

[15] See, e.g., FLA. ADMIN. CODE ANN. r. 58A-5.0181(1)(k)(2) (2003); MISS. REGS. pt. I §L-122.1.b(4) (2003).

[16] See, e.g., ARK. CODE ANN. §20-10-1209 (Michie 2004); CAL. HEALTH & SAFETY CODE §1430(b) (West 2003); CONN. GEN. STAT. §19a-550(e) (2003); see also D.C. CODE ANN. §44- 105.05 (2004).

[17] See, e.g., Winkler v. Interim Servs., Inc., 36 F. Supp. 2d 1026 (M.D. Tenn. 1999); Chalfin v. Beverly Enters., Inc., 741 F. Supp. 1162 (E.D. Pa. 1989), reconsideration denied, 745 F. Supp. 1117 (E.D. Pa. 1990). But see Dorn v. McTigue, 157 F. Supp. 2d 37 (D.D.C. 2001).

[18] Beaty v. Manor Care, Inc., No. 02-1720-A, 2003 U.S. Dist. LEXIS 25044 (E.D. Va. Feb. 10, 2003). The case gave rise to a detailed memorandum opinion that upheld liability theories based on actual and constructive fraud, violations of the Virginia Consumer Protection Act, and false advertising.

[19] See, e.g., TENN. CODE ANN. §§ 71-6-101 to 71-6-120 (2002).

[20] See, e.g., Tex. Health Enters., Inc. v. Geisler, 9 S.W.3d 163 (Tex. App. 1999) (repeated staffing shortages and other acts of negligence supported punitive damages); Estate of McIntyre v. Transitional Health Servs., Inc., No. 2:96CV00424, 1998 U.S. Dist. LEXIS 13965, at *17-18 (M.D.N.C. May 20, 1998) (defendant\’s knowledge that it was violating several health codes and its failure to remedy those violations might reasonably be found to constitute reckless indifference to residents\’ rights); see also Christopher Vaeth, Allowance of Punitive Damages in Medical Malpractice Action, 35 A.L.R. 5th 145 (1996).

[21] 807 So. 2d 676 (Fla. Dist. Ct. App. 2001).

[22] See, e.g., Walker v. S.E. Ala. Med. Ctr., 545 So. 2d 769, 771 (Ala. 1989) (not requiring plaintiffs to present expert testimony because the alleged breach of care—leaving the bed rail down contrary to doctor\’s orders—was so apparent as to be understood by a layperson).

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About the Author

Attorney who has written extensively on the long term care industry and trial practice.
Now Mr. Downey practices in Washington D.C., Maryland and Virginia representing victims of elder neglect and other torts.

Finding the right assisted living facilities for your loved one may seem like a daunting and overwhelming process. Many families struggle to find the right facilities to meet the needs of their aging or disabled relative. With the right amount of time, patience and knowledge, it is easy to find the assisted living facility to meet your needs. 

The first step in choosing the right facility is to determine the level of care that the resident will need. Some care facilities offer apartment-style living in which the residents care for themselves with limited assistance from staff. These types of facilities allow residents to maintain a sense of independence and privacy while being available to provide assistance as needed. Other facilities offer a moderate level of care, providing medical treatment, meals and personal care, but allowing residents the freedom to make choices about their daily living. Finally, there are facilities that provide extensive care, round the clock supervision and treatment and full service meals and personal care. Many of these are connected to a hospital or other medical care center. 

Many assisted living facilities provide a number of amenities to make the resident\’s experience as pleasurable as possible. These include full service meals in community dining rooms, administering medication, religious and spiritual services, recreational activities and transportation services. It is important to choose a facility that will offer the right balance of services while helping your loved one maintain their dignity and mental well being. The best facilities encourage a healthy relationship between the resident and their family and community. 

Making sure the assisted living facility is perfect for your family member is an active process that requires careful selection and follow-up. Before admitting your loved one as a resident, many facilities interview the family and the potential resident to determine their needs and to formulate a plan for their care. This interview process will allow you to assess the facility, voice any concerns and make suggestions that will benefit your loved one. In addition, this will give you the opportunity to tour the residence and get a feel for the overall atmosphere of the facility. 

There are many assisted living facilities to serve the needs of your aging or disabled relative. It may seem like a daunting task to choose from the many senior residences, care facilities and assisted living communities available. By assessing the needs of your loved one and targeting facilities that meet those needs, you will find the assisted living facility that is perfect for your family.

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Mickel Jackson

Choosing the Right Assisted Living Facilities - Here is some information that might assist you in your search for housing and care of your loved one.

The United States has fought many wars throughout the world since that time to keep freedom here at home and continues to do so. From the beginning our country has established a program to care for the men and women of our military who fought in those wars.

The veterans assistance program goes back to 1636 when Pilgrims of Plymouth Colony fought with the Pequot Indians. The Pilgrims enacted a law from English law that reads, “If any man shall be sent forth as a soldier and shall return maimed, he shall be maintained competently by the colony during his life.” In 1789 U. S. congress passed as law that pensions were to be provided to disabled veterans and their dependents and in 1811 the first domiciliary and medical facility for veterans was completed.

Since that time the Department of Veterans Affairs has opened a multitude of care facilities nationwide. An article from the US Department of Veterans Affairs website states:

“VA’s health care system has grown from 54 hospitals in 1930 to 157 medical centers in 2005, with at least one in each state, Puerto Rico and the District of Columbia . More than 5.3 million people received care in VA health care facilities in 2005, a 29 percent increase over the 4.1 million treated just four years earlier.
VA operates more than 1,300 sites of care including nearly 900 ambulatory care and community-based outpatient clinics, 136 nursing homes, 43 residential rehabilitation treatment programs, nearly 90 comprehensive home-care programs, and more than 200 Veterans Centers.”

State veterans homes have been built or are approved for future construction in many states. For a list of state veteran nursing homes go to http://www.longtermcarelink.net/ref_state_veterans_va_nursing_homes.htm#List

Here are some of the benefits provided for Veterans by the Department of Veterans Affairs:

• Health Care Clinics
• Mental Health
• Counseling
• Job training
• Burial and Memorial benefits
• Education
• VA Home Loan
• DIC
• Compensation
• Pension
• Care Management
• Home Renovation for Disability
• Assisted Living
• Prosthetics
• Rehabilitation
• Weight management
• Nursing Homes
• Prescriptions
• Hospitals
  and much more

Thomas Day, founder and Director of the National Care Planning Council, has a deep gratitude for the services provided by the VA. He served as an Air Force pilot during Vietnam. Later he developed a crippling auto-immune disease. It was the doctors at the George A Wahlen VA Regional Medical Center who prescribed a new treatment that saved his life. Many of the VA programs continue to improve his life.

Tom is passionate about the Aid & Attendance Pension Benefit and the relief it brings to veterans and their families who need care services and ways to pay for it in their elder years.

“Aid and attendance” is a commonly used term for a little-known veterans’ disability income. The official title of this benefit is “Pension.” The reason for using “aid and attendance” to refer to Pension is that many veterans or their single surviving spouses can become eligible if they have a regular need for the aid and attendance of a caregiver or if they are housebound. Evidence of this need for care must be certified by VA as a “rating.” With a rating, certain veterans or their surviving spouses can now qualify for Pension. Pension is also available to low income veteran households without a rating, but it is a lesser dollar amount.

Pension is an underused benefit.

There are different income categories for Pension, but the highest could pay as much as $1,949 a month in disability income to a qualifying veteran household. A study commissioned by VA in 2001 estimated, over the next 14 years, only about 30% of eligible veterans would apply for Pension. This is likely due to the fact that most veterans simply don’t know about it. In fact, about a third of all seniors in this country, age 65 and older, could become eligible for pension under the right circumstances. That’s how many elderly war veterans or their surviving spouses there are.

To receive Pension, a veteran must have served on active duty, at least 90 days, with at least one of those days during a period of war. There must be a discharge under conditions other than dishonorable. Single surviving spouses of such veterans are also eligible. If younger than 65, the veteran must be totally disabled. If age 65 and older, there is no requirement for disability. There is no age or disability requirement for a single surviving spouse.

There are income requirements, but a special provision does allow household income to be reduced by 12 months worth of future, recurring medical expenses. Normally, income is only reduced by medical expenses incurred in the month of application. These allowable, annualized medical expenses are such things as insurance premiums, ongoing prescription drug costs, out-of-pocket cost of monthly medical equipment rental, the cost of home care, the cost of paying adult children to provide care, the cost of adult day services, the cost of assisted living and the cost of a nursing home facility. These are all considered medical costs and they can be deducted from income to receive this benefit.

According to Mr. Day,

“I talk to a number of people every day who are inquiring about this benefit. In many cases they don’t know that the benefit can pay members of the family to take care of the veteran, the veteran couple or the surviving spouse at home. I have literally had people who are sacrificing dearly to take care of their loved ones at home, break down and cry when they find they can receive some money from the government for that sacrifice.”

Thomas Day has written two books for the National Care Planning Council to educate and help veterans obtain this long term care benefit. The first, “How to apply for the Aid & Attendance Pension Benefit” is to educate the public what the benefit is and how to get it. The claims process for pension is described and information is provided to help understand what documentation is necessary to provide evidence of recurring medical expenses. All forms necessary for filing a claim are included in the form support section of the book. Here is a link to the book. http://www.longtermcarelink.net/a16Veterans_standard_book.htm

Although this is a do-it-yourself book, Tom recommends if you have excessive assets and income or are not sure how to apply medical deductions, use the services of a qualified consultant.

The second book, “Aid & Attendance Handbook for Professionals & Consultants,” is for the professional consultant. It is 782 pages of rules, forms, instruction on the submission process and Medicaid planning strategies as well as software for calculating income, benefit and medical expenses. Here is a link to that book. http://www.veteranbook.com

The secret for receiving a successful award for aid and attendance or housebound ratings is not in filling out the form but in knowing what documents and evidence must be submitted with the application. Knowing the secrets for a successful award — with the special case of long term care recipients — is 95% of the battle. Even though the form is challenging, filling out and filing a claim is a formality.

A knowledgeable consultant can provide information to shorten VA’s decision window of 6 to 12 months to possibly 3 or 4 months. The consultant also understands how to maximize the benefit or avoid a denial. The consultant can also provide guidance for meeting the asset test. Finally, the consultant can provide the actual strategies for reallocating assets and he or she can arrange for trusts or income conversions to allow for the best possible accommodation of assets for beneficiaries thus avoiding or reducing taxes, family disputes and Medicaid penalties.

“I would like to see every eligible veteran obtain the Aid & Attendance Pension Benefit for their long term care needs.” Thomas Day, Director, National Care Planning Council.

Every November 11, ceremonies are held throughout the United States honoring Veterans of wars. A National Ceremony is held at Arlington Cemetery at the Tomb of the Unknown Soldier, where the laying of the presidential wreath and military playing of “Taps” is presented.
Since its establishment in 1930, the Department of Veterans Affairs has evolved to supporting and aiding the nation’s veterans in numerous ways. One of these services for example, the Veterans Health Administration, is the largest single provider of medical care in the United States. Its 22 regions with 154 hospitals and their associated 875 outpatient clinics offer the following services.

Hospital, outpatient medical, dental, pharmacy and prosthetic services
Domiciliary, nursing home, and community-based residential care
Sexual trauma counseling
Specialized health care for women veterans
Health and rehabilitation programs for homeless veterans
Readjustment counseling
Alcohol and drug dependency treatment
Medical evaluation for disorders associated with military service in the Gulf War, or Treatment for exposure to Agent Orange, radiation, and other environmental hazards
HISA grants
Other special benefits

The Department of Veterans Affairs provides three types of long term care services for veterans.

The first are health care benefits provided to veterans who have service-connected disabilities, who are receiving VA Pension or who are considered low income. These services include free medical care, possible free prescription drugs, orthotics and prosthetics, home renovation grants for disabilities, home care, assisted living, domiciliary care, nursing home care, and a possible host of other services or benefits.

The second benefit is state veterans homes. The majority of these homes offer nursing care but some may offer assisted living or domiciliary care. The Department of Veterans Affairs in conjunction with the states helps build and support state veterans homes. Money is provided to help with construction and a federal subsidy of $72.71 a day is provided for each veteran using state veterans nursing home services. These homes are generally available for most veterans and sometimes their spouses and in some cases for so-called “Goldstar parents.” Veterans homes are run by the states, sometimes with the help of contract management. There may be waiting lists in some states.

The third benefit for veterans is disability income programs. The most familiar of these benefits is an income for service-connected disabled veterans called “Compensation.” The least known of these is a program officially called “Pension” but popularly known as the “aid and attendance benefit.”

• All active-duty veterans who served at least 90 days during a period of war are eligible for Pension and the additional income from aid and attendance or housebound allowances. A single surviving spouse of such a veteran is also eligible.
• All qualifying veteran applicants over the age of 65 are eligible for pension but must meet income and asset tests. Applicants under the age of 65 must in addition be totally disabled to qualify. Disability does not have to be service-connected.
• A surviving spouse can be any age and there is no need for disability.

The aid and attendance benefit can pay additional income to provide for the costs associated with home care, assisted living, nursing homes, adult day care and other unreimbursed medical expenses. It can also pay for a family member other than a spouse to be the care giver. The amount of payment varies with the type of care, recipient income and the marital status of the recipient. Here are some examples of how this benefit can help veterans.

Example #1
The National Care Planning Council receives many calls from family members of veterans, asking if there is any help available to them. One such call came from a woman who had been juggling her job and caring for her father in her home for over five years. She had just lost her job and with no income, did not know how she would keep her home or give her father the care he needed. She read an article that had been written by the National Care Planning Council and published in her local newspaper and called their phone number. The article mentioned that a member of the family — not including a spouse — can be paid through VA to provide care for a loved one at home who is either a war veteran or the surviving spouse of a war veteran. Her father is a war veteran. When told that she could get an additional $1,644 a month through her father by providing her father’s care she was shocked. She was also extremely grateful and ended up sobbing into tears over the phone when she found out about the benefit and realized it would help her keep her home and her father may probably get a check for her retroactive previous care from VA worth tens of thousands of dollars.

Example #2
Another recent caller’s mother is 89 years old and has been in assisted living for four years. As a widow of a veteran she did not qualify for the Aid & Attendance Pension 4 years ago because her assets were too high. In the meantime she has been using up her assets along with her income to pay for the assisted living. The local veterans service office has not been helpful in getting this claim approved even though she had reached the allowable asset limit over two years ago. The family was considering putting her in a less desirable facility under Medicaid. The family knew this would be devastating for their mother. Her health was still good and she had many friends and comforts at the assisted living.

The National Care Planning Council directed the caller and his family to a more cooperative veterans service office that will submit the claim and likely get it approved retroactively so that this woman can get a check for roughly $40,000 worth of previous care costs for which she was not reimbursed. In addition, she will likely get the full benefit of $1,056 a month to help pay the cost of the assisted living where she is happy.

These types of claims require medical evidence in order to receive a rating for aid and attendance or housebound allowances. These ratings must be received or certain non-medical expenses associated with long term care are not deductible from income. Special rules also allow for deducting the annual anticipated cost of month-to-month long term care from household income in order to meet the income test. This special treatment requires special documentation and evidence. In addition, those households with substantial assets will be denied for a Pension income unless those assets are below a certain level determined for each case by VA. The personal residence, personal vehicles and personal property are exempted from this asset test. Finally, evidence must be supplied every year in January that the anticipated costs for the previous year were actually incurred or VA will likely demand for its money back.
The National Care Planning Council has compiled the necessary forms, rules and information about claims together in one book titled “How to Apply for the Veterans Aid & Attendance Pension Benefit.”

This book contains information about how a typical applicant receives a successful pension award. VA often tells callers to go ahead and fill out the application but generally provides no information on the special treatment of annualization of anticipated recurring medical costs. The claims form also contains no information on this important issue. One simply has to know how to do it. This crucial information can make the difference between a successful award and being declined. All necessary forms for filing a claim are in the book.

Veterans who have substantial assets may need to do some estate planning and realigning of assets to qualify. An expert in this area should be sought to help with the application in order to avoid lengthy delays in awarding a benefit or a possible denial of benefits. For a list of individuals or companies in your area who understand how to get this benefit go to http://www.longtermcarelink.net/ref_veterans_consultants.htm

To learn more about this benefit go to http://www.veteransaidbenefit.org/

Published: August 31, 2007

Just for a moment I want you to imagine that you are coming out of a very deep sleep. If you have ever had surgery try to remember the way you felt as you were trying to make sense of things as you awoke. As you imagine or remember this sensation do you find yourself wondering if it is morning or night? Are you trying to remember where you are? Do you have a startle reaction and think for a moment that you are late for work or forgot to pick up your children at school? I have had that upsetting feeling if I wake up in the middle of the night or even after a nap. Now imagine that same fog every moment of your life…

So many care givers find themselves frustrated with an Alzheimer’s sufferer. They may say things like “He just doesn’t seem to care if I am with him or not” or “He doesn’t enjoy doing anything any more.” I know that it is so hard to accept the changes in your loved one and know that this is going to be your reality. If you can remind yourself that the behaviors are organic it will help. The plaque is building up and spreading over the surface of the brain just as a grassfire moves across a dry field. As it covers more areas your loved falls deeper into that fog. Alzheimer’s disease doesn’t show up like a broken one or a surgical scar but the effects are just as real.

When the things they say or do cause you to feel angry or sad do you best to remember that it is the disease…not your loved one. That’s when it is time for some care giver TLC.

Care giver burnout is a very real occurrence. If you are caring for someone you must include your own needs each day. Your health may decline at a faster rate than the person you are caring for if your dietary, emotional and physical needs are not met. Skipping your checkups with Dr.s is not an option.

You may be asking “How am I supposed to do all of this all by myself?” The answer is simple. You can’t do it all alone. The first step to healthy care giving is accepting the fact that you have limitations. Every human being does. You can only stay awake, maintain your health and keep up with the demands for a limited amount of time. When you reach your limit you may find yourself suffering from care giver burnout. You may have trouble concentrating, experience nervous tension, and you may find it difficult to fight off resentment toward your loved one or others in your family that you feel should be assisting you.

Reach out. Call upon your family, friends, church and community organizations. Your local hospitals will have information regarding community resources. This information can usually be found by contacting the Social Services Department. Another good resource is the Alzheimer’s Association. By taking care of your health you will, in turn be a better care giver.

Deborah Uetz

Author of Into the Mist, When Someone You Love Has Alzheimer’s Disease

Deborah Uetz
Author of Into the Mist, When Someone You Love Has Alzheimer’s Disease website http://www.intothemist.us

Published: June 22, 2007

It’s not a surprise that thousands of families across the nation are facing the challlenges of an aging population. The “sandwich” generation, those who are caring for their children as well as their parents, have been feeling the financial pinch of caring for loved ones. Paying the high cost of Elder Care can cost a family thousands of dollars a month. Too many families are unaware of how utilizing a loved one’s life insurance policy can not only pay for Assisted Living and Nursing Home care, but can maintain the standards of living for the remaining spouse.

Not too many financial specialist inform their clients who have purchased life insurance policies with a death benefit over $250,000 that they can utilize a somewhat unknown option on their life insurance to pay for the high cost of Elder Care. It is called a Life Settlement and it can fully take the financial burden off of families who struggle to keep their loved one in a quality facility.

A policy owner has the right to sell his or her life insurance policy to an institution for signifantly more than the cash value of the policy. For example, a life insurance policy with a $500,000 death benefit and a $75,000 cash value can be purchased for $250,000 and up. This money can be used now to pay for assisted living, nursing homes as well as in home services also. The procedure is relatively quick with minimal paperwork. It is senseless to struggle financially to pay for the needs of elderly loved ones when they can utilize their life insurance policy to pay for care. Many, many times life insurance policies lapse when a loved one goes into assisted living or a nursing home just out of financial neccessity as well as through medicaid planning.

Instead of letting a policy lapse or into surrendership, smart families are looking into life settlements as a funding source for the high expense of Elder Care.

Chuck Bongiovanni, M.S.W. has been helping seniors and their fanmilies for over 20 years in the assisted living industry. Chuck can help your family investigate your options for paying for Elder Care through a Life Settlement. You can go to his website at http://www.LifeTransitionsOnline.com or call him directly at 480-703-7005.

Number one on the list for senior safety and fall prevention is a recliner lift chair. Lounging in a recliner can be very comfortable for seniors. But these big chairs are typically very difficult to get out of and even sit down into. If the senior has a lift recliner that can be very helpful and help ensure their safety.

A lift recliner has the ability to raise and tilt to a position where the senior can get in and out of the chair in a standing position. These chairs are electronically operated by a simple hand control. They come in different versions all with different degrees of recline.

Another helpful tool for seniors that will help prevent slip and fall accidents is a walker with wheels. This is also called a rollator.

As a person ages it is a cane that is the first tool to be used for stability when walking. Then as mobility and balance decline further there is a need for a walker. The traditional walker can be a little challenging to use as it must be lifted slightly with each step. A rollator has wheels. Some versions have wheels on all four legs, others have wheels on just one set of the legs.

Some versions of this helpful tool also have hand brakes for added safety. Many also come with a seat so if the user gets tired they can easily sit down for a quick rest.

A stair chair or stair lift can also be a very helpful item that will aid a senior with mobility challenges. Stairs can be especially difficult for an elderly person to manage and that can be a very dangerous place for a fall to occur. A stair lift is built like a chair and it is attached to a rail and transports the senior, in a sitting position, up and down the stairs.

The stair lift is easy to use and can be operated with a simple rocker switch on most versions. For added safety many also come with a seat belt so the user doesn’t have to worry about falling out of the chair.

Many slip and fall accidents occur in the bathroom and that can be a very hazardous place for the elderly. Most everyone knows that there should be railings put in place in showers baths and around toilet areas. But another important tool for seniors in this area of the home is a bath lift.

If the senior has trouble raising and lowering themselves into a bath that is exactly what a bath lift will do for them. Most bath lifts are plastic, though some are inflatable. They are powered by rechargeable battery systems and they are safe to use around the water.

These are all senior safety tools that can be a big help for seniors and keep them falling. If you would like to learn more about the very popular lift recliners you can go here to: Electric Lift Chair. Also, here is where you can go for a great selection in the very popular Recliner Lift Chairs.

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