New Law Creates Class of "Assisted Living Residences"

  Written By: Attorney Brenda Colbert, LL.M,** and Attorney Jeff Marshall, CELA*

In Pennsylvania , individuals who need publicly-funded long term care have generally been unable to receive that care in an assisted living facility. Medicaid funded care has been available only at home under a waiver program, or in a nursing facility.  As a result, seniors who have inadequate supports to remain at home are often forced into an expensive nursing facility even though their needs could be met in a less expensive assisted living environment.   

Our state government is addressing this flaw in the available continuum of care.  Act 56 of 2007, enacted in July, has created a new classification of assisted living providers which will be able to accept individuals with higher care needs including some who qualify for Medicaid-funded nursing home care. 

Unlike personal care homes, this new Assisted Living Residence (ALR) provider class will be able to deliver some health care services to their residents.  And, they will provide their residents with a more private home-like feel than a nursing facility, including such amenities as separate bedrooms and baths and kitchen facilities.  Consumers will have more direct control over their care. 

Act 56 directs the Department of Public Welfare (DPW) to develop regulations for ALRs. DPW is also to seek permission from the federal government to authorize the use of Medicaid funds to subsidize the cost of ALR care for a limited number of residents. These Medicaid "waiver" funds, combined with the residents other sources of income, will hopefully be sufficient to cover an ALR's daily charges at a much lower cost than the state would incur for a nursing facility.

Pennsylvania 's approximately 1,600 personal care homes will now have to decide whether to become licensed as ALRs.  ALR providers will benefit from the ability to retain their residents for a longer period of time before discharge to a nursing facility. Some of their residents will be able to access public funding through Medicaid.  However, ALRs will have to be staffed and equipped to handle their residents' higher care needs. They will also be subject to significant additional regulatory requirements. 

Most personal care homes are likely to stay with their current status as providers of personal care services but not of health care services.  Mike Hall, Pennsylvania's Director of Long Term Living, has suggested that perhaps 300 of Pennsylvania 's current facilities might eventually take on the added ALR responsibilities.

Here are some highlights of Act 56:

-Assisted Living Residences (ALRs) are defined as "any premises in which food, shelter, personal care, assistance or supervision are provided for a period exceeding twenty-four hours for four or more adults who are not relatives of the operator, who require assistance or supervision in such matters as dressing, bathing, diet, financial management, evacuation from the residence in the event of an emergency or medication prescribed for self-administration."

 

-ALRs will be required to provide residents with their own living units unless two residents voluntarily agree, in writing, to share a unit.  In most instances, the living units must contain a private bathroom, living and bedroom space, kitchen capacity, closets, adequate space for storage, and a door with a lock.

 

-ALRs must provide that supplemental health care services, any type of health care services provided by the Assisted Living Residences or through outside sources, be packaged, contracted and priced separately from room and board.

 

-The Department of Public Welfare will conduct annual on-site unannounced inspections of ALRs throughout the State and permit additional inspections, announced or unannounced, as needed. 

 

- The Department of Public Welfare must develop minimum standards for training and staffing. Regulations will require orientation and training for all direct care staff of ALRs and that Administrators of ALRs meet certain qualifications as determined by the Department of Public Welfare. 

 

-ALRs with a Special Care Designation, (e.g. specifically designed to care for residents with cognitive impairments), must have specialized staff training, service planning, activities, and security measures in place.

 

-ALRs will be required to develop standards that allow the residents to remain at the ALR even as their needs change.

 

-ALRs will be required to conduct initial screenings of potential residents to ensure that the potential resident requires the services provided by the ALR and support plans will have to be developed for residents of the facilities.

 

-Residents who require skilled nursing facility services may be able to continue to receive ALR services through the Home and Community Based Waiver.

While the concept of delivering health care services in the assisted living setting has wide support, Act 56 is nevertheless controversial.  Consumer advocates are concerned with the insufficiency of the law's consumer protections. Also worrisome is the provision for "informed consent agreements" which will limit a facility's liability for harm that may later befall a resident.  Moreover, providers are concerned with added regulation and related costs.  Many important details are left to the regulations that will be issued by DPW. The regulatory process is likely to be long and contentious.  It will likely be two years or more before the first assisted living residence licenses will be issued.

A copy of Act 56 is available on the Marshall, Parker and Associates' website at the following link: http://www.paelderlaw.com/pdf/ALF_Regs.pdf

Attorneys Marshall and Colbert can be contacted at webmail@paelderlaw.com or at 1-800-401-4552

Upcoming Presentations Focus on

My Personal Legacy

Planning for life and for the lives of those near and dear

Written By: Reath Edwards, Planned Giving Officer, American Cancer Society

While few of us can know everything that tomorrow might bring, each of us has access to a tool that can transform many of our wishes and dreams into reality.  The tool: a thoughtful, workable estate plan.

A will is in many ways a document that helps define your personal legacy.  It makes your wishes known with respect to family and other heirs.  Moreover, it can reflect your desire to perpetuate the lifesaving work of charitable organizations.

Charitable gift planning techniques within your estate plan can provide for the management of assets for you and other loved ones.  A simple example would be to transfer a portion of assets to a charitable gift plan.  Those assets can provide life income and support the vital work of a charitable organization following the end of life.  Further, the funding of such a plan with highly appreciated stock can result in substantial capital gains tax avoidance.

The combined potential benefits of such a plan would be:

• Life income (variable or fixed) for you and/or an heir,
• An immediate income tax deduction,
• The potential of increasing the investment return on those assets,
• Avoidance of capital gains taxes when the gift is made,
• The responsible management of assets, and the
• Elimination of possible estate taxes.

Perhaps the greatest benefit is knowing that you've taken an additional step to benefit future generations of society, perhaps to help cure cancer or another devastating disease.to improve the quality of life.

Reath Edwards is the American Cancer Society's planned giving officer for Central and Northeastern PA.   He can be contacted at reath.edwards@cancer.org

Note: Marshall , Parker & Associates' Attorney Matthew Parker will be providing two presentations on Estate Planning & Charitable Giving for the American Cancer Society on August 29^th at 9:30 AM and at 6:30 PM .  The seminars are free and will be held at the American Cancer Society's office, 1948 East Third St. Williamsport on August 29^th at 9:30 AM and 6:30 PM .  Call Kathy at 570-326-4149 to reserve a space.

The Year in Review

Written By: Attorney Jeff Marshall , CELA*

Each year the Pennsylvania Bar Institute holds a two day statewide Elder Law Institute for Pennsylvania attorneys who are interested in elder law.  For the past seven years, Attorney Robert Clofine and I have been asked to present a session covering the key legal developments of the past year.  During this session, Rob discusses the interesting cases and I review the legislative and regulatory changes of note.  This "Year in Review" session is the opening plenary session of the Institute, and I am honored to be asked to teach it each year.

Because this year's session was not taped, I thought I would provide a copy of my remarks for those who could not attend.  My presentation included a discussion on the current attempts to "re-balance" Pennsylvania 's long-term care delivery system in order to:

●   Shift the Cost Burden away from Government;

●   Increase Personal Responsibility;

●   Privatize the Delivery of Long Term Care;

●   Provide Care in More Desirable Settings;

●   Provide for Quality of Care;

●   Meet Court Mandated requirements.

My presentation on the legislative and regulatory developments of the past year is available at the following link: http://www.paelderlaw.com/pdf/elder_law_institute.pdf   

Attorney Marshall can be contacted at webmail@paelderlaw.com or at 1-800-401-4552