Benjamin Franklin said it best - “nothing in life is certain except death and taxes” but with daily advancements in science, technology and health care, Americans are living longer than ever before*. This blessing however, has created a unique dilemma for modern American families: How to plan for and prepare for one's retirement years.
Have you taken a road-trip lately? Almost every highway is graced with large bill-boards providing the locations of new planned communities where couples can spend their retirement years dedicated to recreational pursuits. I doubt you will find a local newspaper that doesn’t have at least one ad promoting the amenities found at a local assisted living facility. Try to search for “nursing homes in Virginia” on the Internet and thousands of web pages will appear. Each and every day new facilities offering different programs are being built and marketed across the state.
Is such a facility right for you and your family? If so, which facility? We often hear the terms “retirement community,” “nursing home,” and “assisted living facility” but rarely consider what these terms actually mean. The differences however, are striking and it is imperative to understand these differences when making choices for yourself or your loved ones.
NURSING HOMES
In Virginia, a nursing home means any facility with the primary function of providing long-term nursing care, nursing services and health-related services on a continuing basis, for the treatment and inpatient care of two or more non-related individuals**. Put simply, a nursing home is a facility designed for someone who needs less care than a hospital, but requires daily health care assistance.
The Virginia Department of Health licenses such facilities and has established guidelines regulating various aspects of their operations, programs, and staffing needs, etc***. For example, a nursing home must: (a) have written policies and procedures regarding the treatment of residents and the management of resident care which are available to residents and their families (12VAC5-360-20); (b) provide emergency medical services within 15 minutes, under normal conditions (12VAC5-360-50); (c) be subject to unannounced on-site inspections of the nursing facility by State employees (12VAC5-371-60); (d) have a written agreement with one or more physicians licensed by the Virginia Board of Medicine to serve as medical director (12VAC5-371-230); and (e) each resident shall be under the care of a physician licensed by the Virginia Board of Medicine (12VAC5-371-240).
In addition, residents of nursing homes are also given certain rights as defined by Virginia Code §32.1-138. See http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+32.1-138. Nursing homes are the most regulated and structured residential options for our Seniors requiring some level of daily health care. If the facility provides care through Medicare and Medicaid programs, it is deemed a "Certified nursing facility" (Virginia Code §32.1-123; Virginia Code §32.1-127) and must be in compliance with both federal and state laws.
Of course, the more rules and regulations that define and control the daily operations of a nursing home, the greater the responsibility of the staff. These are the people who will be charged with the daily task of caring for your loved one, and making sure they are in compliance with state and federal laws. No matter how nice and or attractive the facility might be, the staff will make the difference between your loved one being cared for and encouraged, or not.
A nursing home is best suited for someone:
Who requires daily health care – such as assistance getting in and out of bed; taking medicine; or using the restroom. Who may have dementia or Alzheimer’s and as a result, is unable to eat and or bathe daily without reminder or assistance; Who is recovering from a fall or accident and is therefore unable to walk, dress and or eat without assistance
ASSISTED LIVING FACILITY
“Assisted living facility” means an adult care residence which has been licensed by the Virginia Department of Social Services to provide a level of service for adults who may have physical or mental impairments and require at least moderate assistance with the activities of daily living. Within assisted living, there are two types: regular assisted living for those seniors (typically) who need assistance with one or more daily activity; and intensive assisted living for someone who may be incapable of performing activities due to mental and/or severe physical impairment (12VAC30-120-450).
The Virginia Department of Social Services licenses assisted living facilities but does not regulate in the way the Department of Health regulates nursing homes. While there are Virginia guidelines regulating aspects of assisted living facilities, they are limited: An assisted living facility must: (a) provide or coordinate personal and health care services; and (b) provide 24-hour supervision.
As reflected in the table below, assisted living facilities have no obligation to provide health care and/or have health care staff available to assist your loved one. In addition, with no obligation to provide such services, there is the question as to whether or not they owe a duty to warn or treat residents with illnesses or diseases that could be transmitted from other residents.
While a nursing home will have many nurses on staff and doctors hired to monitor the residents, assisted living is more analogous to an apartment building or college dorm where laundry and food services are provided and residents are on their own for the rest of the day.
An assisted living Facility is best suited for someone:
Who is basically independent but may not be able or willing to prepare their own food or drive to doctors’ appointments; Someone who wants to scale back and anticipates needing assistance with laundry, cooking, etc. in the near future. A couple where one spouse is independent but may need assistance in feeding and or providing for needs of other spouse.
CONTINUING CARE RETIREMENT COMMUNITY
In Virginia you may also see advertisements for a retirement community. They are popping up all around our favorite College Towns and Tourist destinations.
A Continuing Care Retirement Community provides care depending on your current needs. Like an insurance policy, the resident pays an entrance fee and periodic adjustable payments, which in turn gives the resident a package of residential and healthcare services that the CCRC is obligated to provide at the time these residential and health care services are required. For example, if upon entering, all you want is help with your meals, that is the only service which will be provided. If you require intensive physical therapy or God forbid, daily assistance for a Dementia patient, the CCRC has assisted living services or nursing home services available under your contract. Continuing care contracts are regulated by the Virginia Bureau of Insurance of the Virginia State Corporation Commission.
Many CCRCs can have nursing home services available either on-site, or at licensed facilities off-site (12VAC5-360-10). While you may be entering the Retirement Community as a very healthy independent and capable resident, as your needs change, so will your contract with the Community and in turn, the facility’s obligations to you.
A Continuing Care Retirement Community Facility is best suited for someone:
Who is basically independent but anticipates the need for daily health care for themselves or a spouse in the near future; Someone who is physically disabled and would be unable to care for themselves or a spouse if the disability grew worse. With at least three very different choices, it is very important to do your research:
To research assisted living facilities in Virginia, go to Department of Social Services website: http://www.dss.state.va.us/facility/search/alf.cgi.
To research nursing homes, go to Medicare’s website: http://www.medicare.gov
AND LAST BUT NOT LEAST
It is always best to speak to a family member of a current resident and spend time getting to know the staff, no matter what type of facility you are looking into. If looking and researching is not enough, then consider the chart below – a comparison of the legal duties of a nursing home compared to the legal duties of an assisted living facility in Virginia.
DUTY or REQUIREMENT
NURSING HOME
ASSISTED LIVING
Duty to provide nursing care and or monitor resident’s health?
YES
NO
Doctor required to supervise residents?
YES
NO
Each resident shall be under the care of a physician licensed by the Virginia Board of Medicine?
YES
NO
Must have nurses on staff?
YES
NO
Must offer rehabilitative services?
YES
NO
Must have ongoing consultation from a registered dietitian or dietitian on staff?
YES
NO
24 Hour Supervision required?
YES
YES
Must develop a written plan upon admission of resident?
YES
YES
Staff must undergo criminal background check?
YES
YES
Monitored by Virginia Center for Quality Health Care Services and Consumer Protection
YES
NO
Monitored by Department of Social Services
NO
YES
*Life expectancy increased dramatically during the past century, from 47 years for Americans born in 1900 to 77 years for those born in 2001. These same factors—improved medical care and prevention efforts— that are partly responsible for the dramatic increases in life expectancy have also produced a major shift in the leading causes of death in the United States in the past century, from infectious diseases and acute illnesses to chronic diseases and degenerative illnesses.” The State of Aging and Health in America 2004, published by the Center for Disease Control, available at http://www.cdc.gov/aging/pdf/State_of_Aging_and_Health_in_America_2004.pdf.
**See generally, Virginia Code §32.1-123, as amended and Virginia Administrative Code § 12VAC5-360-10.
***It is a Felony under Virginia law to operate a nursing facility without a license. See generally, 12VAC5-371-30.
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Lauren Ellerman is an attorney with Frith Law Firm in Roanoke, Virginia. She concentrates her practice on medical malpractice, nursing home abuse, nursing home neglect, lead paint poisoning, and business torts. You may view her complete profile at [http://www.frithlawfirm.com/lauren.htm] and the firm’s home page at http://www.frithlawfirm.com
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