Assisted Living Advocacy: Understanding Residents' Rights

Jul 27

Moving out of the private home and into an assisted living facility (ALF) may become necessary as care needs increase. ALFs afford some level of independence while ensuring that the elder receives needed assistance with daily activities. A move to an ALF may offer other benefits to the elder, such as increased social opportunities and physical activities. Often the reality of life in an ALF is far better than what elders and family members fear when they talk about moving into “a home.” But regardless of the quality of the facility, it is important to keep one thing in mind as a caregiver or loved one: advocacy.Advocacy for a loved one in an ALF can be as simple as helping to establish good lines of communication between the facility staff and the elder or taking the initiative to share unspoken needs or wishes with the staff. Does your loved one want more pepper to flavor the food? Does something need to be repaired in his or her room? Would adjusting the care schedule allow him or her to watch a favorite TV show or enjoy another activity? Family members may be better able to pick up on these details than the facility staff, so loved ones who visit regularly and establish a relationship with facility staff can help improve the elder’s quality of life by sharing insights.Another important part of being a good advocate is understanding your loved one’s rights – especially if you feel they are not receiving adequate or appropriate care or if you suspect there is a problem at the facility. You can find Tennessee’s Rules 1200-08-25, Standards for Assisted-Care Living Facilities, on the Secretary of State website. These rules regulate everything from the facility’s licensing and staffing requirements to the services staff can (and cannot) provide to the maintenance of residents’ records. Below are several highlights from the rules, although this is by no means a comprehensive list of the details it covers.Written RequirementsThe facility must have a set of policies and procedures and must follow them. Required policies include a Performance Improvement Plan for self-identified deficiencies; a smoking policy; a charity care policy; an anti-discrimination and non-retaliation policy; and a pet policy.Management of Personal FundsA person associated with the ALF may only serve as a conservator, guardian, or trustee of the resident and/or the resident’s funds if the resident requests it in writing and the conservatorship, guardianship, or trust is managed separately.Emergency PreparednessThe facility must keep a log of residents that can be produced during an emergency. Emergency/evacuation plans must be in place for incidents of fire, tornado or severe weather (including extreme temperatures), bomb threat, flood, or earthquake. Residents must be able to evacuate the building in 13 minutes (with some exceptions outlined in Chapter 19 of the 2006 NFPA Life Safety Code and the Institutional Unrestrained Occupancy of the 2006 edition of the International Building Code).Medical ServicesThe facility is permitted to provide the following: medication administration; nursing care (intermittent or for physical therapy); therapies; podiatry; social services; hospice; supplies; and durable medical equipment. Facility staff may only administer IV medications intermittently or for hospice care. Medical services must be provided by an appropriately licensed or qualified staff member, contractor, or entity (e.g. a licensed home care organization). Medicare reimbursable services must be provided by a certified Medicare provider.Personal ServicesAt a minimum, every ALF must provide protective care, safety, daily awareness of whereabouts, crisis intervention, room and board, and help with activities of daily living (ADLs).

Laundry arrangements must be provided. Soiled linens must be separated from clothing, and the facility must maintain enough clean linens to meet residents’ needs. Importantly, linens must be changed whenever necessary.
Dietary services must be organized, directed, and staffed by “adequate qualified personnel.” The director of food and dietetic services must train staff and be qualified by experience and training. The menu must meet residents’ needs: therapeutic diets are to be provided as needed and all residents’ nutritional needs must be met. The facility must provide three meals per day and allow no more than 14 hours between the morning and evening meals. Food served to residents is required to be “of good quality and variety, sufficient quantity, attractive and at safe temperatures,” and it must be adapted to the residents’ habits, preferences, and abilities. The facility is required to provide additional nourishment or snacks upon the resident’s request.
Comfortable family visitation areas must be provided.
The facility must provide reading materials such as current newspapers and magazines.
A telephone must be available to all residents 24/7.

Admission RulesResident admission must be established by written agreement. The person must be provided with an accurate statement of fees and charges and must receive 30 days’ notice of any increases. They must receive a copy of the residents’ rights and must be informed regarding the facility’s liability insurance (presence or absence of insurance and, if insured, the carrier or responsible entity). The facility must also provide a written policy to help develop or modify health care directive documents such as a healthcare power of attorney, living will, advance care plan, and/or DNR order.The facility is required to identify residents who are not appropriate for assisted living care. An ALF may not admit a person who requires a level of care beyond the scope of assisted living or who may pose a threat to other residents. Specifically, a person cannot be admitted if they have any of the following:

Stage III or IV decubitus ulcers or exfoliative dermatitis
A continuous need for nursing care
An active communicable or reportable disease or infection requiring contact isolation
Verbally or physically aggressive behavior posing an imminent physical threat to themselves or others
A need for chemical or physical restraints
Any needs that can’t be safely met in the ALF

An ALF can admit a person who needs nursing care if the person’s treating physician certifies the facility can safely meet their needs and the ALF ensures that the resident can be evacuated in a timely manner in the event of a fire. An ALF cannot admit a new resident but can allow a current resident to stay at the facility if they require intermittent treatments for nasopharyngeal or tracheotomy aspiration, nasogastric feeding, gastronomy feedings, or IV therapy/feedings.Discharge RulesIf a resident’s needs cannot be safely met at the ALF (as determined by the ALF administrator or board, the resident’s legal representative, or the resident’s treating physician), the resident must be discharged and transferred to another appropriate setting, such as their own or a relative’s home, a hospital, or a nursing facility. The discharge must be “safe,” which means the resident cannot be dropped off at a homeless shelter or forced upon an unwilling family member where their care needs cannot be appropriately met.Residents’ RightsALF residents are entitled to:

Privacy in treatment and personal care
Freedom from mental and physical abuse
Refusal of treatment
Confidentiality of their file
Be fully informed of matters related to their person or treatment
Have preferences for care providers and funeral arrangements met
Receive 30 days’ written notice prior to discharge (except when ordered by physician due to change in level of care)
Voice grievances without fear of discrimination
Manage their own affairs and finances
Be treated with respect and dignity
Have a private place to sleep and store belongings
Have free access to day rooms and common areas
Wear their own clothes
Send and receive unopened mail
Associate privately with persons of their choice
Participate or not participate in activities
Make, modify, or revoke an advance directive
Not perform services for the ALF

Amelia Crotwell, JD

Amelia Crotwell, founder and managing partner at Elder Law of East Tennessee, has guided families through long-term care and special needs challenges for nearly two decades. Specializing in Life Care Planning and special needs trusts, Amelia also collaborates across all areas of elder law, including wills, trusts, Medicare, Medicaid, probate, and veterans benefits planning. Certified as an Elder Law Attorney since 2011, she is president-elect of the Life Care Planning Law Firms Association and co-chair of their strategic planning committee. Amelia is deeply involved in the Special Needs Alliance and a prominent member of the National Academy of Elder Law Attorneys. She played a key role in founding the Tennessee chapter of NAELA, serving as its first president. A member of the Tennessee Bar Association and past chair of its Elder Law Section Executive Council, Amelia also dedicates time to pro bono work and community education. She earned her J.D., summa cum laude, from the University of Tennessee College of Law and teaches Elder Law there as an adjunct professor since 2018.