HD21 - Study of Whether There Are Abuses in Independent Living Arrangements for the Elderly or Disabled Pursuant to HJR 637 of 1995

Executive Summary:

House Joint Resolution (HJR) 637 of the 1995 Session of the General Assembly directed the Joint Commission on Health Care to study whether there are abuses in independent living arrangements for the elderly and disabled; and, if so, to recommend ways of addressing and correcting these abuses without curtailing the independence of persons who are fully capable of living without regular medical or ambulatory assistance.

In Virginia, there are several different types of long-term care/aging facilities or housing in which elderly citizens can reside. In addition to private housing such as apartments and single-family homes, elderly citizens also reside in nursing homes, adult care residences, continuing care retirement communities (CCRCs), and independent living arrangements.

Nursing homes, CCRCs and adult care residences are regulated and licensed by the Commonwealth. Because these facilities provide for the "maintenance or care" for their respective residents, the state has a responsibility to the residents to assure that certain standards of care and levels of service are met. This assurance is provided through the licensing and regulatory reviews performed by the Department of Health for nursing homes, the Department of Social Services for adult care residences, and the Bureau of Insurance for CCCRCs.

Independent living arrangements, however, do not provide for the "maintenance or care" of the residents. Independent living arrangements, which provide only housing services, are not regulated or licensed by the state. In most independent living arrangements, housing is provided under the terms of a lease, similar to that in other apartment dwellings. There are no provisions in the contract to providing "maintenance or care" services to the residents.

Because independent living arrangements provide only housing services, some residents contract on their own for home health care services to help them remain independent. These services may include personal assistance (e.g. reading, ironing, showering or companionship) or limited medical services such as drawing blood, changing a catheter and providing durable medical equipment. Often, independent living arrangements are located in retirement communities which also include adult care resident and nursing home facilities.

Some residents of independent living arrangements located in certain retirement communities have complained that frail residents with medical infirmities, disabilities and limitations are being accepted into independent living arrangements rather than being required to live in a higher level of care (i.e. adult care residence or nursing home). These residents that have voiced these complaints argue that this constitutes an abuse of the independent living arrangements and has an adverse impact on their lifestyle. These residents identified the following concerns regarding the frail elderly being allowed into independent living arrangements:

• frail elderly do not receive the level of care they need;

• persons who provide home health care services to these frail elderly use common rooms and facilities and disrupt the "independent lifestyle" other residents desire and expect;

• residents' use of wheelchairs, walkers and other medical equipment diminish the "sociability" of the independent living lifestyle; and

• retirement communities which allow frail elderly into independent living avoid state licensing requirements for adult care residences.

Through the course of our study, we conducted a broad review of the issues raised in HJR 637, including interviews with administrators of several retirement communities, residents of independent living arrangements, state and local government long-term care and aging officials, long-term care industry officials, senior citizen advocacy groups, and others. Our study found that while legitimate, they do not constitute an abuse of the Commonwealth's regulations regarding long-term care facilities or independent living arrangements. Moreover, federal and state laws prohibit discrimination against elderly persons with medical disabilities or other limitations. Based on these laws, if retirement communities were to prohibit residents from moving into or remaining in independent living arrangements, they likely would be in violation of these anti-discrimination laws.

In addition to federal and state laws which protect the rights of the frail elderly, the long-term care and elderly communities as well as state policy place emphasis on keeping the elderly as independent as possible. In the context of the issues raised in HJR 637, this policy direction would argue that if frail residents can contract for services they need in order to stay as independent as possible, they should have the freedom to do so. Conversely, prohibiting the frail elderly from residing in an independent living arrangement would be in conflict with this policy.

The concerns raised by some independent living residents about allowing the frail elderly into these arrangements may be due in part to confusion about how the various retirement communities operate with respect to the rights of residents (e.g., certain facility's policy regarding frail elderly in independent living units). Currently, there is little consumer information available on the specific administrative and resident policies of retirement communities to educate senior citizens on how issues such as frail elderly are handled at each facility. Additional consumer information and/or a voluntary counseling service may be effective in this regard.