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 29th
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 29th 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
