When family members behave badly, they can cause or exacerbate... residents of assisted living communities. Sometimes the family member... FAMILY FEUDS:
FAMILY FEUDS: How to Deal With Problem Residents & Family Members Tara A. Cope, Joel S. Goldman When family members behave badly, they can cause or exacerbate problems for residents of assisted living communities. Sometimes the family member acts out of a sincere if misdirected desire to help or advocate for the resident, and, unfortunately, sometimes the family member acts out of animosity toward the resident or other family members, or out of desire to preserve rather than spend the resident’s assets so that a larger estate passes to the resident’s heirs. In this paper we examine some steps an assisted living community can take to prevent or minimize issues with family members. Since not all family member issues can be avoided, we will also gather some resources a community can use when a family member causes problems. First we examine whether problematic family members and family dynamics can be identified in the pre-admission stage. When family conflict spills over into the community, facility personnel must spend significant amounts of time, attention and resources to manage the situation. This strife could be avoided in the first instance by declining to admit a resident when there are signs that the family dynamic may pose a problem. We will examine some red flags that may be apparent in the admission process. Next we explore problems family members cause when directing the facility regarding the care of the resident. One common manifestation of this type of problem is the case of dueling family members. What can and should a facility do when it receives conflicting directions, either from a resident and a family member, or from multiple family members? Another common instance of this issue is the family member who 1 gives directions that appear to be contrary to the best interests of the resident. In that case, what rights does the facility have to disregard the instructions of the family member? To address this topic, we will examine some common issues to be aware of when reviewing a power of attorney document. We will also review the assisted living statutes and regulations of several sample states to see what, if anything, they say about who has the right to access a resident’s records absent a power of attorney. Finally, we address a community’s rights to terminate the agreement of a resident when family members are causing problems at the community. In this section, we summarize the assisted living statutes and regulations of our group of sample states to see to what extent the community’s ability to remove a resident is hampered by or helped by the regulatory scheme. I. Identifying Problem Residents and Family Members Prior to Admission As a general rule, an assisted living community need not admit any particular resident. Given how time consuming and difficult it can be to evict a problem resident, assisted living providers can avoid protracted disruptions by denying admission to potentially problematic residents in the first place. Unfortunately, too often assisted living communities ignore “red flags” that arise during the admission process and, in their desire to fill vacant units, accept residents who in the long run do very little to improve overall census or profitability. Among the red flags are: A. Bad Behavior During the Admission Process. Suffice it to say that both the prospective resident and his or her family are likely to be on their best behavior during the admission process. If a resident or family member is being argumentative, 2 rude, obnoxious, irascible or demanding before the resident is admitted to your community, it is unlikely that things will improve once they move in. B. Disputes Over Needs of the Resident. One of the ongoing problems that assisted living communities face is getting families to agree as to the appropriate level of care required by a resident. Families often resist having a loved one receive a higher level of care (particularly memory care), perhaps due to denial about the decline of their family member or perhaps due simply to being parsimonious. If a disagreement occurs at the outset as to what level of care is appropriate, the problem will almost certainly exacerbate over time. Assisted living providers too often give in to a family’s insistence that the resident needs a lower level of care than suggested by a pre-admission assessment, hoping that they can subsequently increase the level of care (and fees) once the family becomes better aware of the resident’s needs. Such hope is misguided. Except perhaps in states in which there are strong “negotiated risk” regulations, a state licensing agency is going to hold an assisted living provider responsible for rendering the appropriate level of care regardless of whether the resident’s family (or the resident him or herself) has insisted that a lesser level of care is appropriate. If a dispute over level of care arises prior to admission, it is a perfect opportunity for the assisted living community to reject the resident and offer an honest explanation as to why it is doing so. C. Moving From a Competitor. Although it can be ego gratifying for an assisted living community to “steal” a resident from a competitor, it is important to consider why the resident moved in the first place. In many cases, there is a legitimate reason for a move. A competitor may have provided poor service or may not have 3 certain amenities or programs suited to the resident. All too often, however, the move is precipitated by the fact that the resident or his or her family could not get along with staff or other residents at their prior community or had insisted on receiving a level of service that cannot be provided at any community. For example, we have seen a resident move to numerous assisted living communities because each community was unable to meet the son’s demand for an exact sodium count in his mother’s diet. By probing into the reasons why a resident left his or her former community, assisted living providers may avoid inheriting their competitor’s problem. What these three red flags have in common is the imparting of information to community staff that should forewarn them that this prospective resident and his/her family are likely to consume more than their fair share of community resources going forward as these issues unfold at the community. Therefore, it may make sense for the community refuse to admit the resident. Although assisted living communities generally have a right to decline to admit a particular resident, it is important to make certain that there is a good reason for denying admission so as to avoid allegations of unlawful discrimination. In addition to the Federal Fair Housing Act and Americans With Disabilities Act, providers must take into account state laws as well. For example, in California, the Unruh Civil Rights Act (California Civil Code Section 51) states in pertinent part as follows: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. “ 4 Similar laws apply in other states. Providers of assisted living may avoid a more costly and time-consuming allegation regarding compliance with anti-discrimination laws if they are open during the pre-admission process regarding the resident and family behaviors that lead the facility to believe that it will not be able to successfully meet the expectations of this family. In many instances, assisted living communities are reluctant to state the reasons for not accepting a resident, perhaps simply to avoid being confrontational. But if no reason is given, the resident and family members may become suspicious, and it can be particularly problematic if the prospective resident belongs to a suspect class. In most instances, the best approach is to provide an honest, straightforward reason. For example, in the situation in which there is a disagreement at the outset over the resident’s level of care, the community might state, “We have a legal responsibility to provide the level of care to our residents that we deem necessary to meet their needs. In our experience, when there is a disagreement prior to move in as to the appropriate level of care, it is likely that the ongoing relationship between our community and our resident and his or her family is not going to be a satisfactory one for either party.” Similarly, though it can make for a difficult conversation with the resident’s family member, a facility might explain that it has become clear during our interactions with you in the course of the admission process that we will be unable to meet your expectations regarding the care of your mother. While having these conversations up front with a resident’s family member may be awkward, and while communities are mindful of achieving and maintaining optimal census levels, if problems are evident at this early stage of interactions with the resident’s family, those problems are only going to worsen 5 over time, and the community is likely to end up expending far greater resources and dollars managing that resident’s residency than the community garners by filling an additional bed. II. Problems Created When Family Members Direct the Care of a Resident While all providers would prefer to be able to identify a potentially problem- causing resident or family member before the prospective resident moves into the facility, in reality we are not prescient enough to identify every difficult resident and family member based on our pre-admission interactions. This means, undoubtedly, that facilities will continue to have to address difficult situations involving residents and their families. Given our focus on family feuds, we will next explore issues related to what a facility can and should do when the instructions from a resident’s family member pose a problem for the facility. Perhaps the facility is receiving conflicting directions from the resident and a family member, or perhaps the facility is receiving conflicting directions from multiple family members. Sometimes family members attempt to hide from the facility the true scope of the resident’s care needs and instruct the facility that the resident does not need a higher level of care. In this and other ways, facilities receive instructions from family members that the facilities do not believe are in the best interest of the resident. To further complicate matters, often a private duty aide acts as a pseudo family member and becomes involved in these issues. A. Powers of Attorney. The threshold question a facility must consider when dealing with a situation where a family member is giving instructions about a resident’s care is whether that person has authority to do so. If the family member has no authority to make decisions for a resident, the facility will still have to navigate the family 6 dynamic, but can simply explain to the rogue family member that he has no authority to direct the care of the resident. Of course, the most common method of granting authority to another to make decisions for a resident is a power of attorney. For truly thorny scenarios, a facility may be advised to seek counsel from an estate planning attorney. We outline below some common issues to be aware of when reviewing a power of attorney document. 1. Springing Powers of Attorney. Springing powers of attorney for health care become effective only when the resident becomes incompetent to make his or her own medical decisions. Yet we often see situations when the person named as attorney in fact to make decisions in the event of incompetency attempts to assert authority while the resident is still competent. So assisted living providers may be required to ascertain whether or not a resident is competent. Some power of attorney forms provide specifics as to how competency is to be determined. For example, the document may state, “If my primary care physician determines that I am no longer competent….” Or it may state, “If any physician…” or “If any two physicians determine that I am incompetent.” In addition, state law must be reviewed to ascertain whether there are particular rules for how competency may be determined. 2. Non-Springing Power of Attorney. A resident may grant a family member the power to make medical decisions for her even while she is still competent. However, while the resident is competent, she can override the attorney in fact. However, the resident’s ability to override the agent’s instruction does not necessarily mean that the resident will have the strength or resolve to actually override an instruction from a family member. 7 3. Competence of Resident at Time of Signing. On occasion, assisted living providers may be confronted with a power of attorney document that is signed by a resident who is obviously incompetent and the document is sufficiently recent that its validity is called into question. This can be particularly problematic where the questionable power of attorney document purports to supersede a prior document that names a different person as the resident’s agent. In some cases, providers may need to send the dueling parties into court to obtain a determination of which power of attorney document is valid. 4. Does the Power of Attorney Address the Power Needed for the Question at Hand? While most power of attorney forms give the agent clear authority and direction with respect to health care related decisions, assisted living providers are often confronted with an agent who is asserting power to make decisions that are not health care related. For example, the agent may insist that a particular person or persons not be allowed to visit the resident. If an assisted living provider acquiesces to this demand, the provider may well be violating resident rights—particularly where the resident appears to welcome the visitor. These issues become even more difficult where the agent attempts to control the resident’s intimate relationships. 5. Power of Attorney Decisions That are Adverse to Best Interests of the Resident. Where the agent appears to be acting contrary to the best interests of the resident, an assisted living provider can be placed in a very awkward position— particularly if the agent is also paying the bills. Nevertheless, there are times when a provider cannot abide by the agent’s directives. In some instances, the local ombudsman 8 can be an effective resource, but in some instances it may be necessary to report the agent’s actions to the police as suspected elder abuse B. State Assisted Living Statutes and Regulations. Another resource for determining whether a rogue family member has authority to be involved in a resident’s care is the guidance provided by the state’s assisted living statutes and regulations regarding who has the right to access a resident’s records. We have gathered and summarized the provisions of the statutes and regulations of six sample states (i.e., Arizona, California, Florida, Illinois, New York, and Texas) regarding who has the right to access a resident’s records. Also, Exhibit 1 contains excerpts from the statutes and regulations. It is important to note that there may also be other state laws (outside of assisted living laws and regulations) that touch upon who has the authority to access a resident’s records. Also, the federal HIPAA regulations are beyond the scope of this paper and likely not applicable to many assisted living communities, but assisted living providers should be cognizant of federal privacy laws as well. Summary of Requirements in State Assisted Living Statutes and Regulations ARIZONA Who has the right to access the resident's records, other than the resident? Resident records are confidential, and can only be released by the resident or his representative, or "as otherwise provided by law." CALIFORNIA Who has the right to access the resident's records, other than the resident? Resident records are confidential, and can only be released by the resident or his representative. Resident records must be available for inspection and copying by the licensing agency during normal business hours. FLORIDA 9 Who has the right to access the resident's records, other than the resident? Resident records are discoverable in a suit related to the investigation of a resident's rights. The resident's records can be accessed by the resident; the resident's legal representative, designee, surrogate, guardian, attorney in fact, case manager, or the resident's estate; and such additional parties as authorized in writing. Resident records must be available for inspection by staff of the agency, the department, the district long-term care ombudsman council, and the advocacy center for persons with disabilities. ILLINOIS Who has the right to access the resident's records, other than the resident? Records are confidential and can only be released by written permission from the resident or his representative, or "as otherwise provided by law." Certain records, including service delivery contracts and related documents, documents supporting compliance with individual contracts, and incident and accident reports, must be made available to the department for on-site inspection. The department cannot divulge the contents of resident records. NEW YORK Who has the right to access the resident's records, other than the resident? Resident records must be made available to department staff and designees for inspection. TEXAS Who has the right to access the resident's records, other than the resident? Records are confidential and cannot be released without the resident's consent, except to another provider if the resident transfers residence or if the release is required by another law. Assisted living facilities have access to patient information concerning a client referred to the facility, which must remain confidential. If the resident or his representative consent, the ombudsman and staff have access to his records. The staff may also access the records if 1) the resident is unable to give consent and does not have a representative; or 2) access is necessary to investigate a complaint, the resident's representative does not consent, the staff believes the resident's representative is not acting in the resident's best interest, and the staff obtains permission from the ombudsman. 10 As outlined in the summaries above, state assisted living laws typically provide that a resident and his/her representative are allowed access to a resident’s records. Some states also make provision for the licensing authorities, complaint investigators, and the local ombudsman to have access to a resident’s records. However, few of these state statutes define the concept of who is a resident’s “representative.” Communities must look to powers of attorney and any guidance provided in other state laws (e.g., laws governing the validity of power of attorney) to determine who has right to be involved in care decisions and to review resident records. It is not uncommon for family members to attempt to insert themselves where they have no legal authority to do so. Obviously this can cause issues that the community must address, particularly where the family member is paying the bills on behalf of the resident. III. Terminating a Residency Agreement Based on Bad Behavior by Family Members There are times when a family member’s behavior has such an adverse impact on an assisted living facility that the facility must consider the possibility of evicting the resident or at least whether the facility has the authority to evict a resident based on the behavior of a family member. Often state assisted living statutes and/or regulations address the grounds for which a facility can terminate the residency agreement of a resident. Thus, as a starting point, a facility should consult applicable state law and regulation to see if there are statutory limits on the facility’s grounds for termination. We have gathered and summarized below the provisions of the statutes and regulations of six 11 sample states (i.e., Arizona, California, Florida, Illinois, New York, and Texas). Also, Exhibit 2 contains excerpts from the statutes and regulations. SUMMARY OF REQUIREMENTS BY STATUTE AND REGULATION: ARIZONA Grounds: The facility may terminate residency without notice if: 1) the resident is an immediate threat to the health and safety of himself or others; 2) the resident's urgent medical needs require transfer to another facility; or 3) the resident's needs exceed the services the facility is licensed to provide. A.A.C. § R9-10-709. The facility may terminate residence with 14 days written notice if: 1) the resident fails to pay fees; or 2) the resident does not comply with the residency agreement or facility requirements. Id. Otherwise, the facility may terminate residence with 30 days written notice to the resident or the resident's representative. Id. Procedure: Time: The time requirements for notice are provided above. Contents: The written notice must include: 1) reason for terminating residency; 2) effective date of termination of residency; 3) resident's right to grieve the termination; 4) the facility's grievance procedure; and 5) the facility's refund policy. Id. In addition, the facility must provide to the resident or his representative along with the written notice: 1) a copy of the resident's service plan; 2) documentation that the resident is free from tuberculosis; and 3) the phone numbers and addresses of the local area agency on aging and D.E.S. LongTerm Care Ombudsman. Id. CALIFORNIA 12 Grounds: The facility may evict with three (3) days written notice if the facility gets approval from the licensing agency for good cause. Good cause exists if the resident's behavior is a threat to the mental or physical health of himself or others in the facility. 22 CCR 87224(b). The facility may evict with 30 days written notice if: 1) the resident fails to pay the rate for basic services within 10 days of the due date; 2) the resident fails to comply with state or local law after receiving written notice of the alleged violation; 3) the resident fails to comply with the general written policies in the admission agreement of the facility; 4) the resident is determined by reappraisal to have a need that is inappropriate for the facility. 22 CCR 87224(a). The facility may transfer residents with 60 days written notice for: 1) forfeiture or revocation of license; or 2) change of use of the facility. Cal Health & Saf Code § 1569.682(a). Procedure: Time: Given above. Contents: Notice must contain: 1) the reasons relied upon for the eviction, with specific facts to determine the date, place, witnesses and circumstances concerning those reasons; 2) effective date of the eviction; 3) resources available to assist in identifying alternative housing and care options, including public and private referral services; 4) information about the resident's right to file a complaint with the department, including the name, address, and telephone number of the nearest community care licensing office and State Ombudsman; 5) a specific statement set forth in the statute regarding unlawful detainer if the resident remains in the facility after the eviction. Cal Health & Saf Code § 1569.683(a). The admission agreement: 1) cannot contain any other grounds for eviction except those specifically enumerated in state law or regulation, and they must be worded the same as in the law or regulation; 2) must contain an explanation of the resident's right to notice prior to eviction, the process for appealing the decision, and a description of the relocation assistance offered by the facility; and 13 3) must contain a description of the facility's responsibilities and the resident's rights if the facility transfers for forfeiture or revocation of license or change of use of the facility. Cal Health & Saf Code § 1569.886. The facility must send a written report of any eviction to the licensing agency within 5 days. 22 CCR 87224(f). FLORIDA There is no statute or regulation directly on point governing termination of residency agreements. Some requirements can be gleaned from related statutes and regulations. Grounds: No notice is required if: 1) the resident is certified by a physician to require emergency relocation to a facility providing a more skilled level of care; 2) the resident's conduct is harmful or offensive to other residents; or 3) the facility can show good cause in a court of competent jurisdiction. Fla. Stat. § 429.28(1)(k). Otherwise, 45 days notice is required. Id. Procedure: Time: Specified above. Contents: The contract must contain a provision that, if the resident's needs exceed what the facility is licensed to provide, the resident or his representative will be notified in writing that the resident must make arrangements to be transferred to an appropriate care setting. 58A5.025, F.A.C. ILLINOIS Grounds: Residency can be terminated if: 1) the resident does not meet the residency requirements in Section 75; 2) the resident does not pay the contracted charges after he and his representative have received at least 30 days written notice of the charges and had 15 days to cure the delinquency; or 3) the resident fails to execute or comply with the service delivery contract, fails to comply with the lease agreement, or fails to comply with the assessment requirements in Section 15. 210 ILCS 9/80(a). The resident cannot be accepted or remain in residence if: 1) the facility cannot provide appropriate services; 14 2) the resident is not an adult; 3) the resident has any of 15 specified conditions; for example, the resident: poses a serious threat to himself or others, is unable to communicate his needs and does not have a representative, requires more than minimal assistance to move to a safe area in an emergency, has a severe mental illness, requires an IV, gastronomy feedings, a catheter, sterile wound care, or insulin injections, unless self-administered; or requires assistance with 2 or more daily activities, or more than one caregiver at a time with a daily activity, or 5 or more skilled nursing visits a week. 210 ILCS 9/75. Procedure Time: The facility must provide 30 days written notice to the resident, his representative, or both, and to the long term care ombudsman. 210 ILCS 9/80(b). In "emergency" situations, meaning "imminent danger of death or serious physical harm to a resident," the 30 day notice requirement can be waived. 210 ILCS 9/80(b); 210 ILCS 9/10. Contents: The notice must be on a form prescribed by the Department. 210 ILCS 9/80(b); 77 Ill. Adm. Code 295.2010(b)(3). The notice must include: 1) the reason for termination; 2) the date of the termination; 3) a statement of the resident's right to appeal; 4) the steps the resident or his representative must take to initiate the appeal; 5) a statement of the resident's right to continue to live in the facility until a decision is reached; 6) a toll free number to initiate an appeal; 7) a written hearing request form, along with a postage paid, preaddressed envelope to the Department; and 8) the name, address, and telephone number of the person at the facility offering relocation assistance. Id. Other requirements: Prior to termination, the facility must attempt to resolve with the resident or his representative any circumstances that could lead to involuntary termination, and document those efforts in the resident's file. 210 ILCS 9/80(c); 77 Ill. Adm. Code 295.2010(b)(6). The facility must offer the resident and his representative relocation assistance. 210 ILCS 9/80(e); 77 Ill. Adm. Code 295.2010(b)(9). The resident must be involved in planning the move and choose among available alternative placements, unless an 15 emergency makes such involvement impossible. Id. Emergency placements are temporary until the resident's input can be sought. Id. A request for a hearing stays the involuntary termination until the Department renders a decision. 210 ILCS 9/80(d); 77 Ill. Adm. Code 295.2010(b)(7). The only issues to be considered at the hearing are whether statutory reasons exist for involuntary termination, whether the facility has followed proper termination procedures, and whether the facility has attempted to resolve the circumstances leading to the termination. 77 Ill. Adm. Code 295.2010(b)(8). NEW YORK Grounds: The facility may terminate the residency if: 1) the resident requires continual medical care which the facility is not licensed to provide; 2) the resident's behavior poses imminent risk of death or serious physical harm to himself or others; 3) the resident fails to make timely payment of authorized charges; 4) the resident's repeated behavior directly impairs the well-being, care or safety of himself or others or interferes with the orderly operation of the facility; 5) the facility has had its operating certificate limited, revoked, or suspended, or voluntarily surrendered; or 6) a receiver has been appointed and is providing for the transfer of all residents to other facilities. 18 NYCRR § 487.5(f)(14); 18 NYCRR § 488.5(e)(3); NY CLS Soc Serv § 461-g(1). If the resident needs 24-hour skilled nursing care or medical care at a hospital, the residence must be terminated unless: 1) the resident's physician, home care services agency, and hospice medical director determine that the resident can safely be cared for in the facility with additional nursing, medical, and/or hospice care; 2) the resident hires appropriate nursing, medical or hospice care for his increased needs; and 3) the resident is otherwise eligible to reside in the facility. 10 NYCRR § 1001.7(e)(2). Procedure: Time: The facility must give 30 days’ written notice to: 1) the resident; 2) the resident's next of kin, if known; and 3) any person designated in the admission agreement as the responsible party other than the next of kin. 18 NYCRR § 487.5(f)(3); 18 NYCRR § 488.5(e)(5); NY CLS Soc Serv § 461-g(2)(a). 16 A copy of the notice must be filed with the regional office within 5 days of being served on the resident. 18 NYCRR § 487.5(f)(6); 18 NYCRR § 488.5(e)(8). No notice is required if: 1) the resident develops a communicable disease, medical or mental condition, or sustains an injury such that continual skilled medical and nursing services are required; 2) the resident's behavior poses an imminent risk of death or serious physical harm to himself or others; or 3) a receiver has been appointed and is providing for the orderly transfer of residents to another facility due directly to the closure of the facility. 18 NYCRR § 487.5(f)(7) & (12); 18 NYCRR § 488.5(e)(9) & (13); NY CLS Soc Serv § 461-g(3)(a). Contents: The notice must be on a form prescribed by the department and include: 1) the reason for termination; 2) the date of termination; 3) that the resident has the right to object to the termination; and 4) that, if the resident does object, he may remain in the residence while the facility commences a special proceeding under Section 461-h of the Social Services Law. 18 NYCRR § 487.5(f)(3) & (4); 18 NYCRR § 488.5(e)(5) & (6); NY CLS Soc Serv § 461-g(2)(a). In addition, the facility must provide a list, provided by the department, of names, addresses, and telephone numbers of agencies engaged in advocacy services in the area, including the Long-Term Care Ombudsman Program. 18 NYCRR § 487.5(f)(5); 18 NYCRR § 488.5(e)(7); NY CLS Soc Serv § 461-g(2)(a). Other requirements: If the resident is removed without notice, the removal does not constitute termination of the residence. 18 NYCRR § 487.5(f)(10) & (11); 18 NYCRR § 488.5(e)(11) & (12); NY CLS Soc Serv § 461-g(3)(b). The facility must still terminate the residence in accordance with the statutes. Id. The facility must hand deliver the written notice to the resident at the location to which he has been transferred. Id. If the resident objects to the termination within 30 days of the receipt of notice or remains in the residence at the end of the 30 days, the facility must institute a special proceeding under Section 461-h of the Social Services Law. 18 NYCRR § 487.5(f)(16); 18 NYCRR § 488.5(e)(15). The facility must assist the resident to the extent necessary to assure, whenever practicable, the resident's placement in a care setting that is appropriate and consistent with his wishes. 18 NYCRR § 487.5(f)(19); 18 NYCRR § 488.5(e)(18). 17 Section 461-h of the Social Services Law sets forth a prescribed procedure and notice requirements for a special court proceeding to terminate the residence. Note that it is not clear in the regulation whether the special proceeding is mandatory or optional. Sections 487.5 and 488.5 of Title 18 of the Code of Rules and Regulations state that the facility can institute the special proceeding if the resident objects to the termination. However, Section 1001.7 of Title 10 of the Code of Rules and Regulations and Section 461-g of the Social Services Law indicate that the facility must bring the special proceeding in addition to following the other termination procedures described above. TEXAS Grounds: The facility may terminate the residency if: 1) the resident's needs cannot be met; 2) the resident's health is improved to the point that the facility's services are no longer needed; 3) the resident poses a danger to the health or safety of himself or others; 4) the facility ceases to operate or participate in the program that reimburses for the resident's treatment; or 5) the resident fails, after appropriate notice, to pay for services. 40 TAC § 92.125(a)(3)(X). Procedure: Time: The facility may terminate the residency: 1) for just cause after written 30 day notice; or 2) immediately, after notice to the department, if the resident creates a serious or immediate threat to the health, safety, or welfare of other residents. 40 TAC § 92.125(b)(2). Contents: The facility must provide written 30 day notice to the resident, his representative, or a member of his family that includes: 1) notice of the termination; 2) the reason for the termination; 3) the effective date of the termination; 4) if the resident is to be transferred, the location to which he will be transferred; and 5) any appeal rights available to the resident. 40 TAC § 92.125(a)(3)(Y). Depending on state laws and regulations, it may be difficult to terminate a resident based on the behavior of a family member. Of the six states surveyed above, only Florida does not restrict the grounds for termination. None of the other five states 18 list bad behavior by family members as a grounds for termination. However, Arizona, California and Illinois all allow an assisted living facility to terminate a residency based on a failure to abide by facility requirements and/or provisions of the admission agreement. Thus, in these states if there is a provision in the admission agreement or house rules that requires residents to make sure that their visitors conform to certain behavioral standards, there is at least an arguable grounds to evict a resident where family members misbehave. In New York and Texas, the grounds for termination are sufficiently narrow that eviction based on family member behavior appears to be precluded. In states that do allow termination based on a failure to abide by facility requirements, it is still questionable as to whether a facility would ultimately be allowed to terminate based on the behavior of a family member, particularly where the resident is too frail mentally or physically to be able to control the family member. In some instances the threat of evicting a resident based on family member behavior may be enough to induce the family member to behave more reasonably. In extreme cases, the facility may seek a restraining order to prevent the problematic family member from entering the community. In other less extreme cases the facility may seek a restraining order or an arrangement with the family to limit visits or restrict visits to supervised areas. The possibility of placing the resident’s right to reside at the community in jeopardy may be enough incentive that the family member acquiesces. 19 EXHIBIT 1: ACCESS TO A RESIDENT’S RECORDS EXCERPTS OF STATUTES AND REGULATIONS ARIZONA Title 9. Health Services Chapter 10. Department Of Health Services Health Care Institutions: Licensing Article 7. Assisted Living Facilities A.A.C. § R9-10-709 (2010) R9-10-709. Residency Agreements B. A licensee shall ensure that a resident's record is: 1. Confidential and only released with written permission from the resident or the representative, or as otherwise provided by law; 2. Maintained at the facility; 3. Legibly recorded in ink or electronically recorded; 4. Retained for three years from the date of termination of residency; and 5. Available for review by the resident or the representative during normal business hours or at a time agreed upon by the resident and the manager. CALIFORNIA Title 22. Social Security Division 6. Licensing Of Community Care Facilities Chapter 8. Residential Care Facilities For The Elderly (RCFE) Article 9. Resident Records 22 CCR 87506 (2011) § 87506. Resident Records (c) All information and records obtained from or regarding residents shall be confidential. (1) The licensee shall be responsible for storing active and inactive records and for safeguarding the confidentiality of their contents. The licensee and all employees shall reveal or make available confidential information only upon the resident's written consent or that of his designated representative. (d) All resident records shall be available to the licensing agency to inspect, audit, and copy upon demand during normal business hours. . . . FLORIDA Title 30. Social Welfare (Chs. 409-430) Chapter 429. Assisted Care Communities Part I. Assisted Living Facilities Fla. Stat. § 429.294 (2011) 20 § 429.294. Availability of facility records for investigation of resident's rights violations and defenses; penalty (1) Failure to provide complete copies of a resident's records, including, but not limited to, all medical records and the resident's chart, within the control or possession of the facility within 10 days, in accordance with the provisions of s. 400.145 [Note: See below for this section.], shall constitute evidence of failure of that party to comply with good faith discovery requirements and shall waive the good faith certificate and pre-suit notice requirements under this part by the requesting party. (2) No facility shall be held liable for any civil damages as a result of complying with this section. Title 29. Public Health (Chs. 381-408) Chapter 400. Nursing Homes and Related Health Care Facilities Part II. Nursing Homes Fla. Stat. § 400.145 (2011) § 400.145. Records of care and treatment of resident; copies to be furnished (1) Unless expressly prohibited by a legally competent resident, any nursing home licensed pursuant to this part shall furnish to the spouse, guardian, surrogate, proxy, or attorney in fact, as provided in chapters 744 and 765, of a current resident, within 7 working days after receipt of a written request, or of a former resident, within 10 working days after receipt of a written request, a copy of that resident's records which are in the possession of the facility. Such records shall include medical and psychiatric records and any records concerning the care and treatment of the resident performed by the facility, except progress notes and consultation report sections of a psychiatric nature. Copies of such records shall not be considered part of a deceased resident's estate and may be made available prior to the administration of an estate, upon request, to the spouse, guardian, surrogate, proxy, or attorney in fact, as provided in chapters 744 and 765. A facility may charge a reasonable fee for the copying of resident records. Such fee shall not exceed $ 1 per page for the first 25 pages and 25 cents per page for each page in excess of 25 pages. The facility shall further allow any such spouse, guardian, surrogate, proxy, or attorney in fact, as provided in chapters 744 and 765, to examine the original records in its possession, or microfilms or other suitable reproductions of the records, upon such reasonable terms as shall be imposed, to help assure that the records are not damaged, destroyed, or altered. [Note: Ch. 744 is on Guardians and Ch. 765 is on Advance Directives. There are 153 and 60 sections, respectively, in those chapters. It's not clear exactly which sections the above statutes refer to.] (2) No person shall be allowed to obtain copies of residents' records pursuant to this section more often than once per month, except that physician's reports in the residents' 21 records may be obtained as often as necessary to effectively monitor the residents' condition. Title 58 Department of Elder Affairs Division 58A Federal Aging Programs Chapter 58A-5 Assisted Living Facilities 58A-5.024, F.A.C. 58A-5.024 Records. The facility shall maintain the following written records in a form, place and system ordinarily employed in good business practice and accessible to Department of Elder Affairs and Agency staff. (4) Record Inspection. (a) All records required by this rule chapter shall be available for inspection at all times by staff of the agency, the department, the district long-term care ombudsman council, and the advocacy center for persons with disabilities. (b) The resident's records shall be available to the resident, and the resident's legal representative, designee, surrogate, guardian, or attorney in fact, case manager, or the resident's estate, and such additional parties as authorized in writing. (c) Pursuant to Section 429.35, F.S., agency reports which pertain to any agency survey, inspection, monitoring visit, or complaint investigation shall be available to the residents and the public. 1. Requestors shall be required to provide identification prior to review of records. 2. In facilities that are co-located with a licensed nursing home, the inspection of record for all common areas shall be the nursing home inspection report. (d) The facility shall ensure the availability of records for inspection. ILLINOIS Chapter 210. Health Facilities Assisted Living and Shared Housing Act 210 ILCS 9/105 (2012) § 210 ILCS 9/105. Record retention Sec. 105. Record retention. Service delivery contracts and related documents executed by each resident or resident's representative shall be maintained by an establishment subject to this Act from the date of execution until 3 years after the contract is terminated. The establishment shall also maintain and retain records to support compliance with each individual contract and with applicable federal and State rules. The records and supporting documents, as defined by rule, shall be made available for on-site inspection by the Department upon request at any time. § 210 ILCS 9/115. Reports and access to information 22 Sec. 115. Reports and access to information. The Department may require periodic reports and shall have access to and may reproduce or photocopy at its cost any books, records or other documents maintained by the establishment to the extent necessary to carry out this Act and shall not divulge or disclose the contents of a resident's record obtained under this Section in violation of this Act. Title 77. Public Health Chapter I. Department of Public Health Subchapter C. Long-Term Care Facilities Part 295. Assisted Living and Shared Housing Establishment Code Subpart G. Resident and Establishment Records 77 Ill. Adm. Code 295.7000 (2011) § 295.7000 Resident Records a) Service delivery contracts and related documents executed by each resident or resident's representative shall be maintained by the establishment from the date of execution until three years after the date the contract is terminated. (Section 105 of the Act) d) An establishment shall ensure that a resident's record is: 1) Confidential and only released with written permission from the resident or the representative, or as otherwise provided by law; 2) Maintained at the establishment; 3) Legibly recorded in ink or electronically recorded; 4) Retained for 3 years from the date of termination of residency (closed records may be retained off-site); and 5) Available for review by the resident or the resident's representative during normal business hours or at a time agreed upon by the resident and the manager. e) An establishment shall ensure that a resident's financial records are maintained separate from a resident's record and are accessible only to individuals designated by the establishment. f) The following resident records and supporting documents shall be made available for on-site inspection by the Department upon request at any time: 1) Service delivery contracts and related documents executed by each resident or resident's representative, including, but not limited to, negotiated risk agreements; 2) Records supporting compliance with each individual contract and with this Part; and 3) Incident and accident reports that are required to be submitted to the Department. (Section 105 of the Act) NEW YORK Nothing in statutes. Title 10. Department of Health Chapter X. Assisted Living Residences 23 Part 1001. Assisted Living Residences 10 NYCRR § 1001.12 (2012) § 1001.12 Records and reports (b) The operator must maintain complete, accurate and current personal records for each resident which must be available for review and inspection by Department staff or designees and which contain at a minimum: (1) personal data, including identification of the resident's next of kin, family or resident's representative, legal representative, if any, and the name and address of the person or persons to be contacted in the event of an emergency; (2) medical evaluations and other medical information; (3) health care proxy or other advance directives, if applicable; (4) pre-admission evaluation and subsequent functional and social evaluations; (5) individualized service plans; (6) medication assistance record; and (7) case management notes which include details of referrals, service coordination and such other correspondence and papers as are available to document the activities undertaken to meet the resident's needs. TEXAS Title 40. Social Services & Assistance Part 1. Department of Aging & Disability Services Chapter 92. Licensing Standards For Assisted Living Facilities Subchapter G. Miscellaneous Provisions 40 TAC § 92.125 (2011) § 92.125. Resident's Bill of Rights and Provider Bill of Rights (a) Resident's bill of rights. (3) Each resident in the assisted living facility has the right to: (M) access the resident's records, which are confidential and may not be released without the resident's consent, except: (i) to another provider, if the resident transfers residence; or (ii) if the release is required by another law; Title 40. Social Services & Assistance Part 1. Department of Aging & Disability Services Chapter 92. Licensing Standards For Assisted Living Facilities Subchapter I. Access to Residents & Records by the Long-Term Care Ombudsman Program 40 TAC § 92.801 (2011) § 92.801. Access to Residents and Records by the Long-Term Care Ombudsman Program (b) A facility must allow a certified ombudsman and a staff person of the Office access: 24 (1) to the medical and social records of a resident, if the certified ombudsman or the staff person has the consent of the resident or the legally authorized representative of the resident; (2) to the medical and social records of a resident 60 years of age or older, in accordance with the Older Americans Act, § 712(b) [Note: This is 42 USCS § 3058g(b). See below for the relevant portion of this Act.]; and (3) to the administrative records, policies, and documents of the facility to which the facility residents or general public have access. Title 42. The Public Health & Welfare Chapter 35. Programs for Older Americans Allotments For Vulnerable Elder Rights Protection Activities; State Provisions; Ombudsman Programs 42 USCS § 3058g § 3058g. State Long-Term Care Ombudsman program (b) Procedures for access. (1) In general. The State shall ensure that representatives of the Office shall have (A) access to long-term care facilities and residents; (B) (i) appropriate access to review the medical and social records of a resident, if-(I) the representative has the permission of the resident, or the legal representative of the resident; or (II) the resident is unable to consent to the review and has no legal representative; or (ii) access to the records as is necessary to investigate a complaint if-(I) a legal guardian of the resident refuses to give the permission; (II) a representative of the Office has reasonable cause to believe that the guardian is not acting in the best interests of the resident; and (III) the representative obtains the approval of the Ombudsman; (C) access to the administrative records, policies, and documents, to which the residents have, or the general public has access, of long-term care facilities; and (D) access to and, on request, copies of all licensing and certification records maintained by the State with respect to long-term care facilities. (2) Procedures. The State agency shall establish procedures to ensure the access described in paragraph (1). 25 EXHIBIT 2: FACILITY’S RIGHT TO TERMINATE A RESIDENCY AGREEMENT EXCERPTS OF STATUTES AND REGULATIONS ARIZONA Nothing in statutes. Title 9. Health Services Chapter 10. Department of Health Services Health Care Institutions: Licensing Article 7. Assisted Living Facilities A.A.C. § R9-10-709 (2010) R9-10-709. Residency Agreements E. A licensee or resident may terminate residency as follows: 1. A licensee may terminate residency of a resident without notice if: a. The resident exhibits behavior that is an immediate threat to the health and safety of the resident or other individuals in the assisted living facility; b. The resident's urgent medical or health needs require immediate transfer to another health care institution; or c. The resident's care and service needs exceed the services the assisted living facility is licensed to provide; 2. A licensee may terminate residency of a resident after providing 14 days written notice to the resident or the representative for one of the following reasons: a. Documentation of failure to pay fees or charges; b. Documentation of the resident's non-compliance with the residency agreement or internal facility requirements; 3. Except as provided by subsections (E)(1) and (2), a licensee shall not terminate residency of a resident without providing the resident or the representative 30 days written notice; 4. A resident or the representative may terminate residency of a resident without notice due to the following, as substantiated by a governmental agency: a. Neglect; b. Abuse; c. Exploitation; or d. Conditions of imminent danger to life, health, or safety; and 5. A resident or the representative may terminate residency of a resident after providing 14 days written notice to the licensee for documentation of the licensee's failure to comply with the resident's service plan or residency agreement. F. A licensee shall ensure that a written notice of termination of residency includes: 1. The reason for the termination of residency; 2. The effective date of the termination of residency; 3. The resident's right to grieve the termination of residency; 4. The assisted living facility's grievance procedure; and 5. The assisted living facility's refund policy. 26 G. A licensee shall provide the following to a resident or a representative upon issuing a written notice of termination of residency: 1. A copy of the resident's service plan; 2. Documentation that the resident is free from pulmonary tuberculosis; and 3. The phone numbers and addresses of the local area agency on aging and D.E.S. Long-Term Care Ombudsman. CALIFORNIA Health & Safety Code Division 2. Licensing Provisions Chapter 3.2. Residential Care Facilities for the Elderly Article 6. Other Provisions Cal Health & Saf Code § 1569.683 (2012) § 1569.683. Required information to be included in notice of eviction (a) In addition to complying with other applicable regulations, a licensee of a residential care facility for the elderly who sends a notice of eviction to a resident shall set forth in the notice to quit the reasons relied upon for the eviction, with specific facts to permit determination of the date, place, witnesses, and circumstances concerning those reasons. In addition, the notice to quit shall include all of the following: (1) The effective date of the eviction. (2) Resources available to assist in identifying alternative housing and care options, including public and private referral services and case management organizations. (3) Information about the resident's right to file a complaint with the department regarding the eviction, with the name, address, and telephone number of the nearest office of community care licensing and the State Ombudsman. (4) The following statement: "In order to evict a resident who remains in the facility after the effective date of the eviction, the residential care facility for the elderly must file an unlawful detainer action in superior court and receive a written judgment signed by a judge. If the facility pursues the unlawful detainer action, you must be served with a summons and complaint. You have the right to contest the eviction in writing and through a hearing." (b) The licensee, in addition to either serving a 30-day notice, or seeking approval from the department and serving three days notice, on the resident, shall notify, or mail a copy of the notice to quit to, the resident's responsible person. Health & Safety Code Division 2. Licensing Provisions Chapter 3.2. Residential Care Facilities for the Elderly Article 9. Admission Agreements Cal Health & Saf Code § 1569.886 (2012) § 1569.886. Listing in admissions agreement of grounds for involuntary transfer or eviction; Explanation of rights and relocation assistance 27 (a) The admission agreement shall not include any ground for involuntary transfer or eviction of the resident unless those grounds are specifically enumerated under state law or regulation. (b) The admission agreement shall list the justifications for eviction permissible under state law or regulation, exactly as they are worded in the applicable law or regulation. (c) The admission agreement shall include an explanation of the resident's right to notice prior to an involuntary transfer, discharge, or eviction, the process by which the resident may appeal the decision and a description of the relocation assistance offered by the facility. (d) The admission agreement shall state the responsibilities of the licensee and the rights of the resident when a facility evicts residents pursuant to Section 1569.682. Title 22. Social Security Division 6. Licensing of Community Care Facilities Chapter 8. Residential Care Facilities for The Elderly (RCFE) Article 4. Operating Requirements 22 CCR 87224 (2011) § 87224. Eviction Procedures (a) The licensee may, upon thirty (30) days written notice to the resident, evict the resident for one or more of the following reasons: (1) Nonpayment of the rate for basic services within ten days of the due date. (2) Failure of the resident to comply with state or local law after receiving written notice of the alleged violation. (3) Failure of the resident to comply with general policies of the facility. Said general policies must be in writing, must be for the purpose of making it possible for residents to live together and must be made part of the admission agreement. (4) If, after admission, it is determined that the resident has a need not previously identified and a reappraisal has been conducted pursuant to Section 87587, and the licensee and the person who performs the reappraisal believe that the facility is not appropriate for the resident. (5) Change of use of the facility. (b) The licensee may, upon obtaining prior written approval from the licensing agency, evict the resident upon three (3) days written notice to quit. The licensing agency may grant approval for the eviction upon a finding of good cause. Good cause exists if the resident is engaging in behavior which is a threat to the mental and/or physical health or safety of himself or to the mental and/or physical health or safety of others in the facility. (c) The licensee shall, in addition to either serving thirty (30) days notice or seeking approval from the Department and serving three (3) days notice on the resident, notify or mail a copy of the notice to quit to the resident's responsible person. (d) The licensee shall set forth in the notice to quit the reasons relied upon for the eviction with specific facts to permit determination of the date, place, witnesses, and circumstances concerning those reasons. 28 (e) Upon the request of a resident, or his/her designated representative, the Department shall, pursuant to the provisions of Section 1569.35 of the Health and Safety Code, investigate the reasons given for the eviction. (f) A written report of any eviction shall be sent to the licensing agency within five (5) days. (g) This section shall not apply to a particular resident who has entered into a continuing care contract with a facility pursuant to Health and Safety Code, Chapter 10, Division 2. (h) Nothing in this section is intended to preclude the licensee or resident from invoking any other available remedy. (i) Nothing in Section 87224 precludes the licensee from initiating the urgent relocation to a licensed health facility of a terminally ill resident receiving hospice services when the resident's condition has changed and a joint determination has been made by the Department, the resident or resident's health care surrogate decision maker, the resident's hospice agency, a physician, and the licensee, that the resident's continued retention in the facility poses a health and safety risk to the resident or any other facility resident. (1) The licensee shall follow the procedures specified in Section 87637(b)(2) to reduce the risk of transfer trauma. FLORIDA Title 30. Social Welfare (Chs. 409-430) Chapter 429. Assisted Care Communities Part I. Assisted Living Facilities § 429.28. Resident bill of rights (1) No resident of a facility shall be deprived of any civil or legal rights, benefits, or privileges guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States as a resident of a facility. Every resident of a facility shall have the right to: (k) At least 45 days' notice of relocation or termination of residency from the facility unless, for medical reasons, the resident is certified by a physician to require an emergency relocation to a facility providing a more skilled level of care or the resident engages in a pattern of conduct that is harmful or offensive to other residents. In the case of a resident who has been adjudicated mentally incapacitated, the guardian shall be given at least 45 days' notice of a nonemergency relocation or residency termination. Reasons for relocation shall be set forth in writing. In order for a facility to terminate the residency of an individual without notice as provided herein, the facility shall show good cause in a court of competent jurisdiction. Title 58 Department of Elder Affairs Division 58A Federal Aging Programs Chapter 58A-5 Assisted Living Facilities 58A-5.025, F.A.C. 29 58A-5.025 Resident Contracts. (1) Pursuant to Section 429.24, F.S., prior to or at the time of admission, each resident or legal representative shall execute a contract with the facility which contains the following provisions: (j) A provision that, upon determination by the administrator or health care provider that the resident needs services beyond those the facility is licensed to provide, the resident or the resident's representative, or agency acting on the resident's behalf, shall be notified in writing that the resident must make arrangements for transfer to a care setting that has services needed by the resident. In the event the resident has no person to represent him, the facility shall refer the resident to the social service agency for placement. If there is disagreement regarding the appropriateness of placement, provisions as outlined in Section 429.26(8), F.S., shall take effect. ILLINOIS Chapter 210. Health Facilities Assisted Living & Shared Housing Act 210 ILCS 9/80 (2012) § 210 ILCS 9/80. Involuntary termination of residency Sec. 80. Involuntary termination of residency. (a) Residency shall be involuntarily terminated only for the following reasons: (1) as provided in Section 75 of this Act [210 ILCS 9/75]; (2) nonpayment of contracted charges after the resident and the resident's representative have received a minimum of 30-days written notice of the delinquency and the resident or the resident's representative has had at least 15 days to cure the delinquency; or (3) failure to execute a service delivery contract or to substantially comply with its terms and conditions, failure to comply with the assessment requirements contained in Section 15 [210 ILCS 9/15], or failure to substantially comply with the terms and conditions of the lease agreement. (b) A 30 day written notice of residency termination shall be provided to the resident, the resident's representative, or both, and the long term care ombudsman, which shall include the reason for the pending action, the date of the proposed move, and a notice, the content and form to be set forth by rule, of the resident's right to appeal, the steps that the resident or the resident's representative must take to initiate an appeal, and a statement of the resident's right to continue to reside in the establishment until a decision is rendered. The notice shall include a toll free telephone number to initiate an appeal and a written hearing request form, together with a postage paid, preaddressed envelope to the Department. If the resident or the resident's representative, if any, cannot read English, the notice must be provided in a language the individual receiving the notice can read or the establishment must provide a translator who has been trained to assist the resident or the resident's representative in the appeal 30 (c) (d) (e) (f) process. In emergency situations as defined in Section 10 of this Act [210 ILCS 9/10], the 30-day provision of the written notice may be waived. The establishment shall attempt to resolve with the resident or the resident's representative, if any, circumstances that if not remedied have the potential of resulting in an involuntary termination of residency and shall document those efforts in the resident's file. This action may occur prior to or during the 30 day notice period, but must occur prior to the termination of the residency. In emergency situations as defined in Section 10 of this Act [210 ILCS 9/10], the requirements of this subsection may be waived. A request for a hearing shall stay an involuntary termination of residency until a decision has been rendered by the Department, according to a process adopted by rule. During this time period, the establishment may not terminate or reduce any service for the purpose of making it more difficult or impossible for the resident to remain in the establishment. The establishment shall offer the resident and the resident's representative, if any, residency termination and relocation assistance including information on available alternative placement. Residents shall be involved in planning the move and shall choose among the available alternative placements except when an emergency situation makes prior resident involvement impossible. Emergency placements are deemed temporary until the resident's input can be sought in the final placement decision. No resident shall be forced to remain in a temporary or permanent placement. The Department may offer assistance to the establishment and the resident in the preparation of residency termination and relocation plans to assure safe and orderly transition and to protect the resident's health, safety, welfare, and rights. In nonemergencies, and where possible in emergencies, the transition plan shall be designed and implemented in advance of transfer or residency termination. § 210 ILCS 9/75. Residency requirements Sec. 75. Residency requirements. (a) No individual shall be accepted for residency or remain in residence if the establishment cannot provide or secure appropriate services, if the individual requires a level of service or type of service for which the establishment is not licensed or which the establishment does not provide, or if the establishment does not have the staff appropriate in numbers and with appropriate skill to provide such services. (b) Only adults may be accepted for residency. (c) A person shall not be accepted for residency if: (1) the person poses a serious threat to himself or herself or to others; (2) the person is not able to communicate his or her needs and no resident representative residing in the establishment, and with a prior relationship to the person, has been appointed to direct the provision of services; (3) the person requires total assistance with 2 or more activities of daily living; (4) the person requires the assistance of more than one paid caregiver at any given time with an activity of daily living; 31 (d) (e) (f) (g) (5) the person requires more than minimal assistance in moving to a safe area in an emergency; (6) the person has a severe mental illness, which for the purposes of this Section means a condition that is characterized by the presence of a major mental disorder as classified in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) (American Psychiatric Association, 1994), where the individual is substantially disabled due to mental illness in the areas of selfmaintenance, social functioning, activities of community living and work skills, and the disability specified is expected to be present for a period of not less than one year, but does not mean Alzheimer's disease and other forms of dementia based on organic or physical disorders; (7) the person requires intravenous therapy or intravenous feedings unless selfadministered or administered by a qualified, licensed health care professional; (8) the person requires gastrostomy feedings unless self-administered or administered by a licensed health care professional; (9) the person requires insertion, sterile irrigation, and replacement of catheter, except for routine maintenance of urinary catheters, unless the catheter care is selfadministered or administered by a licensed health care professional; (10) the person requires sterile wound care unless care is self-administered or administered by a licensed health care professional; (11) the person requires sliding scale insulin administration unless self-performed or administered by a licensed health care professional; (12) the person is a diabetic requiring routine insulin injections unless the injections are self-administered or administered by a licensed health care professional; (13) the person requires treatment of stage 3 or stage 4 decubitus ulcers or exfoliative dermatitis; (14) the person requires 5 or more skilled nursing visits per week for conditions other than those listed in items (13) and (15) of this subsection for a period of 3 consecutive weeks or more except when the course of treatment is expected to extend beyond a 3 week period for rehabilitative purposes and is certified as temporary by a physician; or (15) other reasons prescribed by the Department by rule. A resident with a condition listed in items (1) through (15) of subsection (c) shall have his or her residency terminated. Residency shall be terminated when services available to the resident in the establishment are no longer adequate to meet the needs of the resident. This provision shall not be interpreted as limiting the authority of the Department to require the residency termination of individuals. Subsection (d) of this Section shall not apply to terminally ill residents who receive or would qualify for hospice care and such care is coordinated by a hospice program licensed under the Hospice Program Licensing Act [210 ILCS 60/1 et seq.] or other licensed health care professional employed by a licensed home health agency and the establishment and all parties agree to the continued residency. Items (3), (4), (5), and (9) of subsection (c) shall not apply to a quadriplegic, paraplegic, or individual with neuro-muscular diseases, such as muscular dystrophy and multiple sclerosis, or other chronic diseases and conditions as defined by rule if 32 the individual is able to communicate his or her needs and does not require assistance with complex medical problems, and the establishment is able to accommodate the individual's needs. The Department shall prescribe rules pursuant to this Section that address special safety and service needs of these individuals. § 210 ILCS 9/10. Definitions "Emergency situation" means imminent danger of death or serious physical harm to a resident of an establishment. Title 77. Public Health Chapter I. Department of Public Health Subchapter C. Long-Term Care Facilities Part 295. Assisted Living & Shared Housing Establishment Code 77 Ill. Adm. Code 295.2010 (2011) § 295.2010 Termination of Residency b) Involuntary termination of residency 1) Residency shall be involuntarily terminated only for the following reasons: A) as provided in Section 75 of the Act and Section 295.2000 (Residency Requirements) of this Part; B) nonpayment of contracted charges after the resident and the resident's representative have received a minimum of 30 days written notice of the delinquency and the resident or the resident's representative has had at least 15 days to cure the delinquency; or C) failure to execute a service delivery contract or to substantially comply with its terms and conditions, failure to comply with the assessment requirements contained in Section 15 of the Act, or failure to substantially comply with the terms and conditions of the lease agreement. (Section 80(a) of the Act) 2) A 30 day written notice of involuntary residency termination shall be provided to the resident, the resident's representative, or both, and the ombudsman. (Section 80(b) of the Act) 3) The notice shall be on a form prescribed by the Department and shall contain all of the following: A) The stated reason for the residency termination; B) The proposed date of the residency termination; C) A statement of the resident's right to appeal; D) The steps that the resident or the resident's representative must take to initiate an appeal; E) A statement of the resident's right to continue to reside in the establishment until a decision is rendered; F) A toll free telephone number to initiate an appeal; G) A written hearing request form, together with a postage paid, pre-addressed envelope to the Department; and (Section 80(b) of the Act) 33 H) The name, address, and telephone number of the person at the establishment offering relocation assistance pursuant to subsection (b)(1). 4) If the resident or the resident's representative, if any, cannot read English, the notice must be provided in a language the individual receiving the notice can read or the establishment must provide a translator who has been trained to assist the resident or the resident's representative in the appeal process. (Section 80(b) of the Act) 5) In emergency situations as defined in Section 295.200 of this Part, the 30-day provision of the written notice may be waived. (Section 80(b) of the Act) 6) The establishment shall attempt to resolve with the resident or the resident's representative, if any, circumstances that if not remedied have the potential of resulting in an involuntary termination of residency and shall document those efforts in the resident's file. This action may occur prior to or during the 30 day notice period, but must occur prior to the termination of the residency. In emergency situations, the requirements of this subsection may be waived. (Section 80(c) of the Act) 7) A request for a hearing shall stay an involuntary termination of residency until a decision has been rendered by the Department in accordance with the Department's Rules of Practice and Procedure in Administrative Hearings (77 Ill. Adm. Code 100), except as otherwise provided in this Part. During this time period, the establishment may not terminate or reduce any service for the purpose of making it more difficult or impossible for the resident to remain in the establishment. (Section 80(d) of the Act) 8) The only issues to be considered at the involuntary termination of residency hearing are whether one or more of the statutory reasons exist for involuntary termination; whether the establishment has followed the proper involuntary termination procedures; and whether the establishment has attempted to resolve the circumstances leading to an involuntary termination. 9) The establishment shall offer the resident and the resident's representative, if any, residency termination and relocation assistance including information on available alternative placement. Residents shall be involved in planning the move and shall choose among the available alternative placements except when an emergency situation makes prior resident involvement impossible. Emergency placements are deemed temporary until the resident's input can be sought in the final placement decision. No resident shall be forced to remain in a temporary or permanent placement. (Section 80(e) of the Act) 10) The Department may offer assistance to the establishment and the resident in the preparation of residency termination and relocation plans to assure safe and orderly transition and to protect the resident's health, safety, welfare, and rights. In non-emergencies, and where possible in emergencies, the transition plan shall be designed and implemented in advance of transfer or residency termination. (Section 80(f) of the Act) NEW YORK Title 10. Department of Health Chapter X. Assisted Living Residences 34 Part 1001. Assisted Living Residences 10 NYCRR § 1001.7 (2012) § 1001.7 Admission and retention standards (e) Twenty-Four Hour Skilled Nursing or Medical Care. (1) An operator shall not admit individuals in need of twenty-four hour skilled nursing care or medical care provided by facilities licensed pursuant to Article 28 of the Public Health Law or Articles 19, 31 or 32 of the Mental Hygiene Law. (2) If a resident reaches the point where (s)he is in need of twenty-four hour skilled nursing care or medical care provided by facilities licensed pursuant to Article 28 of the Public Health Law or Articles 19, 31 or 32 of the Mental Hygiene Law, then the resident shall be discharged from the residence and the operator shall initiate proceedings for the termination of the residency agreement of such resident in accordance with the provisions of section 461-h of the Social Services Law and of 18 NYCRR 487.5(f) or 488.5(e), as applicable; provided, however, a resident may remain at a residence certified as an enhanced assisted living residence if each of the following conditions are met: (i) the resident's physician and home care services agency, if applicable, and hospice medical director, if applicable, determine and document that, with the provision of additional nursing, medical and/or hospice care, the resident can be safely cared for in the residence and would not require placement in a hospital, nursing home or other facility licensed under Article 28 of the Public Health Law or Articles 19, 31 or 32 of the Mental Hygiene Law; (ii) the resident hires appropriate nursing, medical or hospice staff to care for his or her increased needs; (iii)the operator agrees to retain the resident and to coordinate the care provided by the enhanced assisted living residence and other provider staff; and (iv) the resident is otherwise eligible to reside in the facility. Title 18. Department of Social Services Chapter II. Regulations of the Department of Social Services Subchapter D. Adult Care Facilities Part 487. Standards For Adult Homes 18 NYCRR § 487.5 (2012) § 487.5 Resident protections (f) Termination of admission agreements. (1) Every resident shall have the right to terminate his admission agreement. (2) Voluntary and mutual termination of the admission agreement. Where notice of termination has been given by the operator and the resident leaves voluntarily, it is not necessary for the operator to commence a court proceeding. (3) The operator of an adult home shall, in order to terminate the admission agreement of a resident and discharge him/her from the facility, give at least 30 days' written notice, on a form prescribed by the department, to: 35 (i) the resident; (ii) the resident's next of kin, if known; and (iii) any person designated in the admission agreement as the responsible party, other than next of kin, if any. (4) The termination notice must indicate: (i) the reason for termination; (ii) the date of termination; (iii)that the resident has the right to object to the termination of the agreement and the subsequent discharge; (iv) that, if the resident does object, he may remain in the facility while the operator commences a court proceeding, and unless the court finds in favor of the operator. (5) In addition to the prescribed termination notice, the operator shall furnish to the resident a list of agencies, including the Long-Term Care Ombudsman Program, providing free legal services and agencies engaged in resident advocacy services within the geographic vicinity of the facility. Such lists must be provided or approved by the department and shall include names, addresses and telephone numbers. (6) A copy of the termination notice shall be filed by the operator with the appropriate regional office within five days after the notice is served upon the resident. (7) Transfer of a resident without giving at least 30 days' notice may be arranged by the operator under the following circumstances: (i) When a resident develops a communicable disease, medical or mental condition, or sustains an injury such that continual skilled medical and nursing services are required, arrangements shall be made by the operator for appropriate professional evaluation and transfer to an appropriate facility. (ii) In the event that a resident's behavior poses an imminent risk of death or imminent risk of serious physical harm to himself or others, the operator shall arrange for transfer of the individual to an appropriate and safe location. (8) In the event that a resident's behavior poses an imminent risk of death or serious physical harm to himself or any other person, the operator should, whenever possible, seek the assistance of a peace officer, acting pursuant to his special duties, or a police officer who is a member of an authorized police department or force or a sheriff's department, in transferring the resident to a safe location. (9) When the basis for a transfer no longer exists, and the resident is deemed appropriate for placement in the facility, the operator shall readmit him, even if involuntary termination proceedings have begun. (10)Transfer of a resident without notice of termination shall not be deemed a termination of the admission agreement. Such removal shall not relieve the operator from the requirement of proceeding, subsequent to the removal of the resident, to terminate the admission agreement. (11) When the operator proceeds to terminate the admission agreement of a resident transferred without notice of termination, he shall insure that the written notice shall be hand-delivered to the resident at the location to which he has been removed. If such hand delivery is not possible, then notice shall be given by any 36 of the methods provided by law for personal service upon a natural person (section 308, Civil Practice Law and Rules). (12) When a receiver has been appointed pursuant to the provisions of section 461-f of the Social Services Law, and is providing for the orderly transfer of all residents in the facility to other facilities or is making other provisions for the residents' continued safety and care, the receiver may terminate admission agreements and arrange for the transfer of all residents to appropriate settings without regard to the notice and court review requirements of this subdivision. (13) Notwithstanding paragraph (12), a receiver shall adhere to the requirements of this subdivision in any instance where termination of an admission agreement is not directly related to the closure of a facility. (14) No operator shall terminate an admission agreement and involuntarily discharge a resident, except for the following reasons: (i) the resident requires continual medical or nursing care which the adult care facility is not licensed to provide; (ii) the resident's behavior poses imminent risk of death or imminent risk of serious physical harm to himself or anyone else; (iii) the resident fails to make timely payment for all authorized charges, expenses and other assessments, if any, for services, including use and occupancy of the premises, materials, equipment and food which the resident has agreed to pay pursuant to the resident's admission agreement; (iv) the resident repeatedly behaves in a manner that directly impairs the wellbeing, care or safety of the resident or any other resident or which substantially interferes with the orderly operation of the facility; (v) the facility has had its operating certificate limited, revoked or temporarily suspended, or the operator has voluntarily surrendered the operating certificate of the facility to the department; or (vi) a receiver has been appointed pursuant to the provisions of section 461-f of the Social Services Law, and is providing for the orderly transfer of all residents in the facility to other facilities or is making other provision for the residents' continued safety and care. (15) (i) If failure to make timely payment resulted from an interruption in the receipt by the resident of any public benefits to which he is entitled, no admission agreement may be involuntarily terminated unless the operator, during the 30day notice period, assists the resident in obtaining such benefits, or any other available supplemental public benefits. (ii) Documented failure of the resident to cooperate with such efforts by the operator shall be considered evidence of assistance. (16) If the resident indicates to the operator, within 30 days of receipt of notice, that he objects to the termination of the agreement, or if at the end of 30 days the resident remains in the facility, the operator shall institute a special proceeding pursuant to section 461-h of the Social Services Law prior to termination and discharge. (17) While legal action is in progress, the operator shall not: 37 (i) seek to amend the admission agreement in effect as of the date of the notice of termination; (ii) fail to provide any of the care and services required by department regulations and the admission agreement; or (iii)engage in any action to intimidate or harass the resident. (18) Both the resident and the operator are free to seek any other judicial relief to which they may be entitled. (19) The operator shall assist any resident, proposed to be transferred or discharged pursuant to this subdivision, to the extent necessary to assure, whenever practicable, the resident's placement in care settings which are adequate, appropriate and consistent with his wishes. [Note: The resident protections for Adult Homes quoted above are paralleled in the resident protections section of the regulations governing Enriched Housing programs. The regulations governing Enriched Housing programs can be found at 18 NYCRR § 488.5. For brevity, we have not quoted those regulations here.] Social Services Law Article 7. Residential Care Programs for Adults & Children Title 2. Residential Programs for Adults NY CLS Soc Serv § 461-h (2012) § 461-h. Special proceeding for termination of adult home, residence for adults and enriched housing program admission agreements 1. (a) A special proceeding to terminate the admission agreement of a resident of an adult home, residence for adults or enriched housing program and discharge the resident therefrom may be maintained in the county court, the justice court of the village, the town justice court, the court of civil jurisdiction in a city, or the district court which has jurisdiction over proceedings brought pursuant to article seven of the real property actions and proceedings law. (b) The place of trial of the special proceeding shall be within the jurisdictional area of the court in which the adult home or residence for adults is situated; except that where the facility is located in an incorporated village which includes parts of two or more towns, the proceeding may be tried by a town justice of any such town who keeps an office in the village. 2. The proceeding may be brought by the operator of an adult home, residence for adults or enriched housing program. 3. (a) The special proceeding prescribed by this section shall be commenced by petition and a notice of petition. A notice of petition may be issued only by an attorney, judge or the clerk of the court; it may not be issued by a party prosecuting the proceeding in person. (b) The notice of petition shall specify the time and place of the hearing on the petition. 38 4. The notice of petition and petition shall be served at least five and not more than twelve days before the time at which the petition is noticed to be heard. 5. (a) Service of the notice of petition and petition shall be made by personally delivering them to the resident; and at the time of such service, a copy of such notice of petition and petition shall be mailed to the resident's next of kin and to the person designated in the admission agreement as the responsible party, if any, and the department. If service by personal delivery of the notice of petition and petition upon a resident, who has been removed from the facility as permitted by subdivision three of section four hundred sixty-one-g of this article, is not possible, then service upon such resident shall be made by any of the methods permitted by section three hundred eight of the civil practice law and rules. (b) The notice of petition and petition together with proof of service thereof on the resident and proof that copies thereof have been mailed to the resident's next of kin and to the person designated in the admission agreement as the responsible party, if any, shall be filed with the court or clerk thereof within three days after delivery to the resident. (c) Service shall be complete upon filing proof of service. 6. The petition shall be verified by the person authorized by subdivision two of this section to maintain the proceeding; or by a legal representative, attorney or agent of such person pursuant to subdivision (d) of section thirty hundred twenty of the civil practice law and rules. Every petition shall: (a) state the interest of the petitioner in the premises from which removal is sought; (b) state the resident's interest in the premises and his relationship to petitioner with regard thereto; (c) describe the premises from which removal is sought; (d) state the facts upon which the special proceeding is based; and (e) state the relief sought. The relief may include a judgment for payment of all charges, expenses and other assessments due. 7. The resident may answer in writing prior to the date the petition is to be heard or orally at the time the petition is heard. The resident may interpose any defense that he may have in his answer. 8. If the relief sought by the operator includes a judgment for payment of all charges, expenses and other assessments due, then any counterclaims which the resident may have against the operator may be heard in a special proceeding maintained pursuant to the provisions of this section, provided, however, that the court in its discretion may sever such claims and counterclaims from the special proceeding. 9. Where triable issues of fact are raised, they shall be tried by the court. The court, in its discretion, at the request of one or both of the parties may grant an adjournment for not more than ten days. 10. (a) The court shall direct that a final judgment be entered determining the rights of the parties with regard to the admission agreement. (b) The judgment, including such money as it may award for use and occupancy of the facility or otherwise, may be docketed in such books as the court maintains for 39 recording the steps in a summary proceeding; unless a rule of the court, or the court by order in a given case otherwise provides, such judgment need not be recorded or docketed in the books, if separately maintained in which are docketed money judgments in an action. 11. (a) Upon rendering a final judgment for petitioner, the court shall issue an order of removal directed to the sheriff of the county or to any constable or marshal of the city in which the facility is situated, or, if it is not situated in a city to any constable of any town in the county, describing the property, and commanding the officer to remove the resident. (b) The officer to whom the order of removal is directed and delivered shall give at least seventy-two hours notice, in writing and in the manner prescribed in this section for the service of a notice of petition, to the person to be removed and shall execute the order between the hours of sunrise and sunset. 12. (a) If a proceeding is brought by an operator of an adult home, residence for adults or enriched housing program pursuant to the provisions of this section and the reason for the proceeding is that a resident of such a facility has not paid the authorized charges, the court shall stay the issuance of the order of removal for ten days from the date a judgment is rendered. The court, in its discretion, may stay the issuance of an order of removal for up to ninety days if the reason for the termination of the admission agreement and discharge of the resident is that the resident failed to pay the authorized charges and such nonpayment was due to an interruption by a government agency in the delivery to such resident of any public benefits to which such resident is entitled. During the pendency of such stay, the operator of the facility, as part of the provision of case management services shall be required to assist the resident who shall cooperate with the operator, in obtaining any such public benefits or any supplemental public benefits which are available to persons who have not received their regular public benefits. (b) If a proceeding is brought by an operator of an adult home, residence for adults or enriched housing program pursuant to the provisions of this section, and the reason for the proceeding is repeated behavior by the resident which directly impairs the well-being, care or safety of the resident or any other resident or which substantially interferes with the orderly operation of the facility, the court, in its discretion, upon application of the resident, may stay the issuance of the order of removal for up to thirty days from the date a judgment is rendered. (c) If a proceeding is brought by an operator, administrator or receiver of an adult home, residence for adults or enriched housing program pursuant to the provisions of this section, and the reason for the proceeding is that the facility has had its operating certificate revoked or temporarily suspended pursuant to subdivision four of section four hundred sixty-d of this article, or the operator has voluntarily surrendered the operating certificate for the facility to the department, the court, in its final judgment entered pursuant to subdivision ten of this section, shall not direct the facility to remain open and in operation. 40 13. During the pendency of a special proceeding brought pursuant to this section, the operator of an adult home, residence for adults or enriched housing program shall be required to honor all terms of the admission agreement until the resident is removed. 14. Nothing contained herein shall be deemed to alter or abridge any right of a resident or operator of an adult home, residence for adults or enriched housing program to obtain any relief to which such persons are entitled in any other court of competent jurisdiction. 15. Notwithstanding the provisions of this article, nothing contained herein shall be construed to create a relationship of landlord and tenant between an operator of an adult home, residence for adults or enriched housing program and a resident thereof. 16. Notwithstanding any other provision in this section to the contrary, the admission agreement of a resident in an enriched housing program may be terminated and the resident discharged pursuant to the provisions of section four hundred sixty-one-g of this article and pursuant to a special proceeding as set forth in this section; provided, however, where such resident has an existing lease with the landlord of the premises in which the program is housed, the resident may not be involuntarily removed from the premises except in accordance with the provisions of such lease and applicable law and regulation. NY CLS Soc Serv § 461-g § 461-g. Termination of admission agreements 1. No adult home, residence for adults or enriched housing program which is subject to certification and supervision of the department shall terminate the admission agreement of any resident of such facility and involuntarily discharge him therefrom except for the following reasons: (a) the need of the resident for continual medical or nursing care which the adult home, residence for adults or enriched housing program cannot provide; (b) behavior of the resident which poses imminent risk of death or imminent risk of serious physical harm to such resident or any other person; (c) failure of the resident to make timely payment for all authorized charges, expenses and other assessments, if any, for services including use and occupancy of the premises, materials, equipment and food which the resident has agreed to pay pursuant to the resident's admission and services agreement; (d) repeated behavior of the resident which directly impairs the well-being, care or safety of the resident or any other resident or which substantially interferes with the orderly operation of the facility; (e) the facility has had its operating certificate limited, revoked or temporarily suspended pursuant to subdivision four of section four hundred sixty-d of this article, or the operator has voluntarily surrendered the operating certificate for the facility to the department; or (f) a receiver has been appointed pursuant to the provisions of section four hundred sixty-one-f of this article and, as required by such section, is providing for the orderly transfer of all residents in the facility to other facilities or is making other provisions for the residents' continued safety and care. 41 2. (a) No admission agreement shall be terminated and no resident of an adult home, residence for adults or enriched housing program involuntarily discharged for the reasons stated in paragraphs (a), (b), (c), (d) or (e) of subdivision one of this section unless: (i) the operator gives at least thirty days written notice, on a form prescribed by the department, to the resident, the resident's next of kin and the person designated in the admission agreement as the responsible party, if any, that the resident's admission agreement will be terminated and the resident discharged; (ii) such notice contains the reason for the termination of the admission agreement, the date that the discharge will occur, a statement that the resident has a right to object to the termination of the resident's admission agreement and subsequent discharge, and a statement that if the resident does not leave the facility voluntarily, the operator, in order to terminate the admission agreement and discharge the resident, will be required to originate a proceeding pursuant to the provisions of section four hundred sixty-one-h of this article; (iii) the operator furnishes to the resident a list of free legal services agencies within the facility's geographical area and a list of other available community resources which provide resident advocacy services, including the social services district, which lists shall be provided to the operator by the department; and (iv) the operator institutes a special proceeding in accordance with the provisions of section four hundred sixty-one-h of this article. (b) No admission agreement shall be terminated and the resident of an adult home, residence for adults or enriched housing program involuntarily discharged for the reason stated in paragraph (c) of subdivision one of this section, if the reason that the resident failed to pay the authorized charges was an interruption in the receipt by such resident of any public benefits to which such resident is entitled, unless the operator of the facility, during the thirty day notice period provided for in subparagraph (i) of paragraph (a) of this subdivision, as part of the provision of case management services, assists the resident, who shall cooperate with the operator, in attempting to obtain such public benefits or any supplemental public benefits which are available to persons who have not received their regular public benefits. (c) The admission agreement of a resident in an enriched housing program may be terminated and the resident discharged pursuant to the provisions of this section and section four hundred sixty-one-h of this article; provided, however, where such resident has an existing lease with the landlord of the premises in which the program is housed, the resident may not be involuntarily removed from the premises pursuant to this section and section four hundred sixty-one-h of this article, except in accordance with the provisions of such lease and applicable law and regulation. 3. (a) Nothing in this section shall prohibit: (i) the removal of a resident from a facility, for medical treatment or care, to a hospital, nursing home or residential health care facility, as defined in section twenty-eight hundred one of the public health law, or to a hospital as defined in section 1.03 of the mental hygiene law; or (ii) the removal from the facility of a resident whose behavior poses an imminent risk 42 of death or imminent risk of serious physical harm to such resident or any other person, by a peace officer, acting pursuant to his special duties, or a police officer, who is a member of an authorized police department or force or a sheriff's department; or (iii) the removal from the facility of a resident, whose behavior poses an imminent risk of death or imminent risk of serious physical harm, to a location which ensures the resident's safety, pursuant to regulations of the department. (b) Such removal shall not be deemed to be a termination of the admission agreement. Such removal shall not relieve the operator of the facility from the requirement of proceeding, subsequent to the removal of the resident, in accordance with this section and section four hundred sixty-one-h of this article in order to terminate the admission agreement to prevent the resident from returning to the facility. When an operator proceeds subsequent to the removal of the resident from the facility, to terminate the admission agreement, the written notice required to be given to the resident by subparagraph (i) of paragraph (a) of subdivision two of this section shall be personally delivered to the resident at the location to which he has been removed. If personal delivery is not possible, then such notice shall be served upon the resident by any of the methods permitted by section three hundred eight of the civil practice law and rules. TEXAS Tex. Health & Safety Code § 247.065 (2011) § 247.065. Providers' Bill of Rights (b) The providers' bill of rights must provide that a provider of personal care services has the right to: (2) terminate a resident's contract for just cause after a written 30-day notice; (3) terminate a contract immediately, after notice to the department, if the provider finds that a resident creates a serious or immediate threat to the health, safety, or welfare of other residents of the assisted living facility; Title 40. Social Services & Assistance Part 1. Department of Aging & Disability Services Chapter 92. Licensing Standards For Assisted Living Facilities Subchapter G. Miscellaneous Provisions 40 TAC § 92.125 (2011) § 92.125. Resident's Bill of Rights and Provider Bill of Rights (a) Resident's bill of rights. (3) Each resident in the assisted living facility has the right to: (X) not be transferred or discharged unless: (i) the transfer is for the resident's welfare, and the resident's needs cannot be met by the facility; 43 (ii) the resident's health is improved sufficiently so that services are no longer needed; (iii)the resident's health and safety or the health and safety of another resident would be endangered if the transfer or discharge was not made; (iv) the provider ceases to operate or to participate in the program that reimburses for the resident's treatment or care; or (v) the resident fails, after reasonable and appropriate notice, to pay for services; (Y) not be transferred or discharged, except in an emergency, until the 30th day after the date the facility provides written notice to the resident, the resident's legal representative, or a member of the resident's family, stating: (i) that the facility intends to transfer or discharge the resident; (ii) the reason for the transfer or discharge; (iii) the effective date of the transfer or discharge; (iv) if the resident is to be transferred, the location to which the resident will be transferred; and (v) any appeal rights available to the resident; (b) Provider's bill of rights. (2) The providers' bill of rights must provide that a provider of assisted living services has the right to: (B) terminate a resident's contract for just cause after a written 30-day notice; (C) terminate a contract immediately, after notice to the department, if the provider finds that a resident creates a serious or immediate threat to the health, safety, or welfare of other residents of the assisted living facility. During evening hours and on weekends or holidays, notice to DHS must be made to 1-800-458-9858 44
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