When choosing an elder care facility, the options can be overwhelming. Then, once you have made a choice, you have to review a contract that is similar to a lease but has a medical component as well. Consumers are often unsure about what they are signing, whether or not it contains all of the required terms, and what may happen in the future.
The first step in evaluating a residency agreement is to determine if the facility can provide the appropriate level of care. Assisted living facilities are licensed by the Arizona Department of Health Services (ADHS). As part of the licensure and survey process, ADHS ensures that the facility can offer certain levels of care. There are three major levels of care – supervisory, personal and directed.
Supervisory care is the least stringent; it means that caregivers can help with daily activities, meal preparation and chores, but no hands-on assistance is needed. Personal care is a higher level. Those in need of personal care require hands-on assistance with daily activities, meal preparation, support for basic hygiene, medication management, and assistance with mobility and transferring.
Finally, directed care is the most stringent; it generally consists of full assistance with activities of daily living, meal preparation, hygiene, medication management, and assistance with mobility and transferring. Memory care is typically included with directed care. The facility should be able to tell you the levels of care it is licensed to provide and this information should be included in the residency agreement. Consumers can also check this via ADHS’ database.
Second, the agreement should contain certain information that is required by law. Legally, Arizona Administrative Code Section R9-10-807 dictates the basic requirements for a residency agreement for an assisted living facility:
- The resident’s name.
- The term of occupancy.
- A list of the resident’s responsibilities and the facility’s responsibilities.
- A list of the services provided and a list of the services available for an additional fee.
- For assisted living, information on overnight management.
- The refund policy.
- The policy and procedures for terminating residency, including termination if the resident needs a higher level of care.
- The complaint process.
Third, the manager of the facility must sign and date the agreement and, before move-in, provide the resident with a copy of the resident’s bill of rights and information on how the facility handles healthcare directives. In exchange, and before moving in, the resident must provide proof that they are free of tuberculosis and a document indicating the level of care that the resident will need along with a signed statement by a medical provider approving the level of care. From there, the facility should create a written service plan for the resident’s stay.
Fourth, many agreements also detail how the facility will charge the resident. Legally, facilities may only raise prices once per year and with notice to residents, so consumers should be aware of this. Consumers should also ask questions about how the facility will interface with Medicare, Medicaid and/or insurance plans. This is largely dependent on the level of care required as well as the resident’s benefits, but it is best to ask upfront and have it documented.
Consumers should also know that a resident’s tenancy can be terminated for several reasons. Like all leases, residency can be terminated for non-payment or failure to abide by the residency agreement with 14 days’ notice or immediately if the resident poses a threat to health and safety. In the alternative, residency may be terminated for any reason upon 30 days’ notice. The termination letter must include a copy of the resident’s current service plan and information on the refund policy.
Unlike most leases, though, a residency agreement may be terminated if the resident requires a higher level of care than the facility may be able to provide. In this instance, the manager’s notice must include a specific description of the service the resident needs that the facility cannot provide. A resident in this situation may request a written referral to an appropriate facility. This is intended to help speed the next placement.
Finally, consumers should understand resident rights. Per the Arizona Administrative Code, residents should be treated with dignity and respect. They should not be subjected to abuse, neglect, coercion, discrimination or the like. They should be able to access their health care records and choose their providers, have visitors, and participate in or decline activities. The complaint process should be clearly delineated so that residents can raise concerns. Consumers should make sure that the facility that they choose has policies and procedures in place to report abuse and neglect and to ensure that residents’ rights are protected.
All of this should be considered when choosing and contracting with a facility. Consumers can also search for any complaints or survey violations using ADHS’ website. Consumers who are armed with this information, and know what to look for in a residency agreement, will be able to make an informed choice.
Heather Macre is an attorney with Fennemore, where she is the Healthcare Practice Group leader. Her healthcare practice encompasses healthcare agreements, non-compete covenants and disciplinary proceedings, CMS compliance, HIPPA and Stark and False Claims Act compliance, among other matters.
