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What Is Aging In Place and When Is It a Viable Option in CCRCs and ALFs? Stephen J Maag Director, Assisted Living and Continuing Care American Association of Home and Services for the Aging Introduction At first glance, the concept of aging in place would not seem to be much of an issue for a Continuing Care Retirement Community (CCRC). After all, CCRCs are widely viewed as one of the originators of the concept of aging in place. In many of the early CCRCs, residents paid entrance fees and monthly fees in exchange for lifetime of care (other than acute care). They expected to age in place with the “place” being the CCRC. The CCRC offered apartment living and, when necessary, nursing home care. Over time, many CCRC added or were built to include assisted living care. However, there was still an expectation that the resident would move from one level of care to another as necessary, albeit on the same campus or in the same building. As home health care and home care became more prevalent and with the slow move towards technologically based care in addition to a more demanding and savvy resident population, the tradition CCRC model of moving within the continuum of care in a CCRC has been challenged. Aging in place often means staying in an apartment in a CCRC far longer than might have been expected several years ago. Many providers have modified their practices to meet this challenge, others have not, but in all cases there remain numerous issues and the occasional controversy when dealing with aging in place in a CCRC. The focus of this presentation will be on the issues of aging in place as they pertain to residents living in the “independent” apartment and needing some level or care that they cannot provide for themselves. This raises a number of issues, legal, regulatory and operational, but because the apartments are typically not licensed there is far less clear guidance than in a licensed setting. I will not deal with issues related to assisted living; those are extensively covered by my co‐presenter. I Contract Issues One of the first issues providers need to face is what do there admission documents say on the issue of transitions for care. How level of care decisions are made need to be detailed in the contract to minimize confusion, avoid misunderstandings and unfounded expectations. What residents expect and how long they can live in the apartment is often a significant source on controversy. Residents should be informed how the process will occur, the timing and the criteria for decision making. Appeal procedures of some sort are also useful to include. Who participates is also import, including allowing the resident, residents representative and residents outside medical professional. The staff who participates should be detailed (by title) and their roles explained. The criteria to be used needs to be detailed so the resident understands when and why they may need to move. If a CCRC has in‐apartment services, how those will be made available, costs, duration and types of services need to be included. Again, misunderstandings on what can be provided and the cost are often a major source of problems. It is my experience that what is in the contract often does not match the actual practice of the community. Contracts can be old and outdated, practices of the community change and most importantly, CCRC staff are often inconsistent in the assessment process or application of transfer criteria. Inconsistency creates confusion in residents and leaves a CCRC vulnerable to a legal challenge based on contract terms. Contracts need to be reviewed and updated as individual circumstances change and as the CCRC implements new practices. II Regulatory Issues As I mentioned above, I will not discuss regulatory issues as it relates to licensed assisted living. However, that doesn’t mean there are a number of regulatory issues for aging in place in independent apartments. Unlike many other types of long term care, CCRC’s generally do not have a comprehensive licensing state in most states. A few states, CA, MD, and PA for example, do have a complex regulatory framework for CCRC’s, but they almost entirely focus on financial performance, resident fees and disclosure requirements. There is 2
very little regulatory authority over the operations of the independent section of the CCRC and certainly not on the levels of care transitions out of independent apartments. One significant issue is related to the process of allowing residents to age in place and assisted living licensure. Depending on each states laws, at some point a resident aging in place will fall under some part of the definition of care that requires a license for assisted living. In many states, that can be as simple as assuming responsibility for the care of a resident and providing some minimal level of supportive services. It is easy for a CCRC which has a person aging in place to meet that definition. At that point the CCRC has the potential for operating an unlicensed assisted living facility with the potential for state action. This may also occur if you have staff “checking” on residents or have staff from a licensed AL or NF portion of the community “visiting” a resident, a practice I have witnessed firsthand. In both circumstances, the potential for a regulatory agency to raise the issue of unlicensed care is real. If the CCRC is providing care through a home health agency, the individual states laws on home health services apply. In many cases, the CCRC will have limitations on how much care can be provided by its home health care personnel. As with residency contracts, the CCRC resident needs to be aware of the limitations and understand they may still need to move to a higher level of care at some point in the future. III Financial Issues A practical and very real consideration a CCRC must take into account when dealing with the issue of aging in place is the impact on turnover of apartments and the utilization of the AL and NF sections of the CCRC. If residents are allowed to age in place, especially if they receive supportive services, the basic financial model of many CCRCs will be altered. In many CCRCs, especially Type A life care models, there is an actuarially based prediction of how many residents will vacate their apartments to be re‐sold to new resident. This cash infusion is often used to maintain healthy reserves, pay debt service and help fund renovations and expansions. If residents remain in their apartment longer, this cash infusion will slow and can, over a period, of time significantly impact the financial picture of the CCRC. In the current climate of soft occupancy and slower 3
re‐sales this may not be as big an issue (an occupied apartment paying monthly is better than an empty apartment), but historically apartment turnover is a major concern for CCRCs. If a CCRC resident stays in their apartment longer than originally projected, the CCRC must re‐think its financial model and make sure it can maintain the appropriate cash reserves and fund future capital projects. It is generally assumed that a CCRC must undergo significant renovation every ten years to maintain its appearance and marketability, so it won’t take very many years of aging in place for a loss of entrance fee revenue to have a significant impact on the CCRC. Another financial consideration is the utilization of AL and NF beds. As with entrance fees, utilization of healthcare services figure into the financial projections for the CCRC and aging in place in apartments will certainly have an impact of their projections. If utilization goes down, loss of revenue must be considered in monitoring the CCRC’s finances. In working with some CCRCs with larger nursing home beds, this loss of revenue is significant and can create significant pressure on the viability of the CCRC. On the other extreme, there is a trend to downsize the numbers of health care beds in CCRCs, particularly nursing beds, because of regulatory compliance issue and the high cost of care. A planned reduction is one thing, but looking at empty beds because your residents are staying in their apartments is another. If aging in place becomes a factor in a CCRC, how it will change their financial picture due to loss of revenue in healthcare must be dealt with. Downsizing is a possibility. Offsets by income from home health care services can also help offset lost income. In any event, aging in place will have a significant impact on the traditional financial picture of a CCRC IV Fair Housing The concept of aging in place and the disability discrimination provisions of the Fair Housing Act, ADA and Rehabilitation Act have become the source of some controversy in CCRCs in the last several years. While I will not go into all the legal requirements of the applicable Fair Housing laws, a summary of the two most recent cases is useful to frame the issues. The first case is Bell v. Bishop Gadsden Case number 2:05‐1953‐DCN‐
RSC (US District Court South Carolina, Charleston Division). The second, which just settled the week of January 11, is Herriot v. Channing House, Case number C 06‐6323, US District Court, Northern California, San Jose Division. 4
In both these cases, the core issue is whether the required move of a CCRC resident from their apartment to a room in the healthcare portion of a CCRC is a violation of the disability discrimination protections of the Fair Housing Act. The central allegation is that if the resident can meet the requirements of tenancy without having to move, is it discrimination based solely on their disability to require them to move. The resident can live safely with the assistance of outside help, and thus, arguably, have no impact on the CCRC and its services. In Bell v. Bishop Gadsden, Bishop Gadsden had determined after a full evaluation that Bell needed to move to the nursing care portion of the CCRC. Bell resisted, first because she didn’t believe she needed the care and later, after she hired personal care, because she felt she should be able to continue to live in het apartment with this help. Bishop Gadsden had traditional language in its admission contract requiring a move if their Transfer Committee, in conjunction with the resident, determined the increased care was needed. Bishop Gadsden offered only limited care in their apartments. Bishop Gadsden continued to insist Bell move and Bell filed suit in June 2005 asking that the transfer portions of the admissions contract be found to be in violation of Fair Housing and ADA. Bell was allowed to remain in her apartment during the litigation with 2 conditions: (1) she had to employ personal care and her sold cost and accept responsibility for consequences of personal care; (2) Bell would not hold Bishop Gadsden responsible for the kind of care she would have received in a the SNF. Unfortunately, Bell died after the litigation was commenced and it later settled. Bishop Gadsden had to pay damages of $55,000 and modify its transfer policy, but the limited personal attendant policy remained in place. This left the key question of applicability of Fair Housing to aging in place in CCRCs unanswered. The question was again raised in a similar case in California, Herriot v. Channing House. As in Bishop Gadsden, the resident, Herriot, was assessed as needing care not provided in the independent apartments. Herriot was hospitalized in early 2006 and Channing House told Herriot and her family that she would need to move to AL of SNF when she was discharged. She resisted and her doctor stated she could be cared for by private duty aids and a move would have a negative impact on her health. Channing House continued to insist on a move. Herriot hired private duty help and continued to live in her apartment and when Channing House again requested she move she filed suit alleging that the move was a violation of Fair Housing, ADA, and rehabilitation Act, she was entitled to a reasonable accommodation of private duty help. Herriot moved for summary judgment in Feb 2002008 and the court ordered a medical evaluation. The evaluation was filed May 29, 2008 and it found Herriot needed care 5
with all her ADL’s. The court issued its ruling on August 26, 2008, and found that under California law, her request was not reasonable. California has a statute that prohibits a resident needing skilled or intermediate care from residing in an apartment in a CCRC and because of that statute Herriot’s position was not sustained. However, because this was based solely on a unique California statute (no other state has a similar provision applying to CCRCs) it offered little guidance to the rest of the country. Herriot filed for reconsideration and on January 29, 2009, the court ruled again in Channing Houses favor, but this time in a much more expansive manner. The court reiterated its earlier ruling that California law requires her move and therefore her request is unreasonable and would force Channing House to violate the law. The court went further and found that it was unreasonable for her to request the accommodation of private duty aides when she had an expectation that she might have to move when she moved into Channing House. The contract expressly provides for a transfer to a higher level of care and is designed for the health and well being of residents and Channing House has a managerial responsibility to enforce the agreement. Herriot was free to choose where she lives and her care by moving from Channing House. The court further found that the accommodation requested by Herriot altered the fundamental nature of the program at Channing House. By moving into a CCRC, a resident agrees to a certainty of care by transfers along a “continuum of care”. California law recognizes this and provides for involuntary moves within the continuum. The request for permanent private duty aides would be a fundamental alteration of the services of Channing House and thus unreasonable. This is the first court ruling which squarely addresses the issue of aging in place and the nature of a CCRC and while only a summary judgment ruling in a federal district court, it at least does address the issues. The summary Judgment was appealed, but the case was settled in mid January, 2010. While it is useful, it still does have the unique California statute as part of the rationale and does not address the issue of whether the Fair Housing, ADA or Rehabilitation Act might supersede and void either or both the California law or the CCRC contract. There are still many questions to be answered related to the impact of fair housing and disability discrimination and aging in place in CCRCs. Many CCRCs have already modified their practices to allow much more care in apartments, but at some point this issue will have to be faced in most circumstances. One rather unique approach is Horizon House in Seattle. As part of a major renovation a few years ago, it delicensed it AL and SNF rooms and provides care in apartments 6
through its supportive services program, which is a licensed home health care provider. Since there are no transfers, this is truly the ultimate in aging in place. Those residents who need Medicare Part A nursing care receive it in a SNF near Horizon House. When and where the next challenge to transfers in a CCRC will take place is unknown, but it is almost a certainty to occur V Risk Management If a CCRC is facing the aging in place issue with residents receiving care in their apartments, the CCRC’s risk management process should be reviewed. The potential risk the CCRC is markedly different in residents receive care in their apartments vs., in licensed portions of the community. Since it is likely the resident will have periods of time where they are alone, what the increase is for negative occurrences needs to be anticipated. Assessments, monitoring, adaptive devices all become more critical if care is provided in the apartment. Risk managers and insurance providers should review the CCRCs practices to develop approaches to reduce risk for care in an apartment. Conclusion Aging in place has been occurring in CCRC from the beginning. In fact, that is essentially what a CCRC is all about. However, the type and nature of aging in place has changed. A residents desire to stay in their own apartment as long a possible, and even longer than that, has put increased pressures on CCRC management. While there is no standard response, each CCRC must understand this issue and respond in a way that best suits its circumstances. 7