Residential care setting is an umbrella term for many types of certified and licensed housing plus services options. Residential care settings include assisted living residences, residential care facilities, and adult foster care homes. Licensing and regulation of residential care settings occur at the state level. The definition of these settings, the type and level of services they provide, and their regulation varies considerably within and among states.
Each setting provides different types and levels of service depending on what the state authorizes or requires. For example, assisted living providers in North Carolina are not licensed to provide daily nursing services. In Florida, they are. As a result, consumers may be unsure of what to expect in different settings and have difficulty determining which setting will best meet their or a family member’s needs.
The availability of assisted living/residential care and supportive housing is growing. This is in response to consumer demand for alternatives to nursing homes and increased public funding for services in these settings (see also Livable Communities for more information on the housing aspects of supportive housing).
The Centers for Medicare and Medicaid Services (CMS) issued a Medicaid home- and community-based services (HCBS) settings rule that specified minimum requirements for community integration, choice and control, privacy, and legal rights in order for assisted living/residential care providers to be reimbursed by Medicaid. A primary purpose of the rule was to clarify that residential settings that looked and operated like institutions would not be considered community settings for purposes of Medicaid HCBS reimbursement.
Advocates have raised concerns about the potential consequences of the HCBS setting requirements because some of them could disqualify the following types of settings from receiving Medicaid funding:
- secured dementia units/neighborhoods within a larger assisted living community or as a freestanding community,
- continuing care retirement community arrangements where assisted living is located on the same campus as independent living residences and a nursing home,
- assisted living facilities that were built as a separate section of a nursing home or as a converted section of a nursing home, and
- assisted living facilities that are on the same campus or adjacent to a hospital or other health care provider.
While not prohibited by the HCBS rule, such settings could be presumed to have the qualities of an institution unless the state and CMS determine that they are home- and community-based services through a process of heightened scrutiny.
A number of features of residential care settings can affect residents’ safety, quality of life, and care.
Private rooms: Research has demonstrated that residents in both nursing homes and residential care settings strongly prefer private rooms and bathrooms. Privacy is essential to dignity. It improves the security of personal belongings and aids in infection control. Yet, most residents in nursing facilities and residential care settings live in rooms shared with a stranger. Only private-pay residents with sufficient resources can afford to pay for a private room. Some attempts have been made to change this situation. For example, the Green House Project and similar initiatives transform nursing facilities from institutions into small, home-like settings with private rooms and bathrooms. They have an emphasis on resident-centered care and staff empowerment. Other efforts include moving toward household-living models, resident-directed care practices, and improved workplace cultures within existing facilities. Some assisted living facilities use an intergenerational community model in which residents share a building or campus with staff and their families or with college students.
Culture change generally includes the following elements:
- modification of the physical characteristics of care facilities to make them more residential in character and to provide more private spaces for residents;
- change in the staffing model to give more training, autonomy, and career advancement opportunities to direct-care staff; and
- improvements in the service delivery model to give residents, their families, and caregivers more control over the types and timing of the services they receive.
Bed holds: Bed holds may be available when a nursing home resident is hospitalized or makes an overnight visit with family or friends. The basics of bed hold law—whether a bed hold is required, the length of any mandatory bed hold, and the availability of Medicaid payment for a bed hold—is determined by state law and thus varies from state to state. However, federal law requires facilities to issue specific notices regarding bed holds. Federal law also requires that nursing facility residents who are temporarily absent be allowed to return to the next available bed in that facility.
Medicaid coverage during a temporary absence varies from state to state, with some states providing no coverage. In those states, if the residents are unable to pay privately, they may not be able to return to their room or even to the same facility.
Video technology: Video technology can facilitate frequent communication between residents in nursing facilities and residential care settings and their loved ones. Virtual visits can also help family members monitor and document a resident’s care. This technology can also be used to document the provision of care and monitor the quality of care.
Electronic monitoring: Texas allows residents in nursing facilities and residential care settings to have electronic monitoring devices. Providers must furnish reasonable accommodations for electronic monitoring and are prohibited from refusing to admit or discharging residents because they request monitoring.
The admission of people with criminal records: Admitting people with a history of violent crimes (including sex offenders) to nursing facilities and residential care settings raises concerns about other residents’ safety. A few states have laws regarding the notification of registered sex offenders in long-term care facilities and for establishing admission procedures or prohibiting the admission of certain registered sex offenders. For example, California requires any releasing authority, such as the Department of Corrections, to notify the nursing home in writing that a sex offender will become a resident at least 45 days before admission. The law also requires an individual sex offender to provide the same notification even if they are not being released by any such authority. Upon such notice, the facility must inform all residents and employees. Facilities are allowed to discharge a resident after or upon learning that the resident is a sex offender, assuming that the facility did not receive prior notification of that status at the time of admission.
It is unlikely that any facilities have the staffing levels, training, and security needed to care for residents with a history of violent crimes and ensure the safety of other residents at the same time.
Private right of action: A private right of action exists when a statute authorizes individuals aggrieved under the law to bring suit. With a private right of action, individuals receiving LTSS can sue a provider or the government for breach of statutory or regulatory rights, duties, or responsibilities. The primary purposes of the private right of action are to obtain compensation for injuries and ensure performance of duties. A secondary purpose is to supplement traditional government regulatory enforcement with private oversight and enforcement. Some state legislatures have established a private right of action both for nursing facility and assisted living residents.
Alternative dispute resolution: Residents in nursing facilities and residential care settings often are unable to take legal action because of cognitive impairments or limited finances. Mediation and other alternative forms of nonbinding resolution may help with some kinds of disputes, such as when a resident has problems with a roommate. However, they are inappropriate for other issues, including disputes about life, health, or safety (see also Chapter 11, Personal and Legal Rights: Private Enforcement of Legal Rights—Alternative Dispute Resolution).
QUALITY AND CONSUMER ISSUES ACROSS ALL LICENSED RESIDENTIAL CARE SETTINGS: Policy
QUALITY AND CONSUMER ISSUES ACROSS ALL LICENSED RESIDENTIAL CARE SETTINGS: Policy
Federal oversight of the quality of Medicaid services
The federal government should assume a much stronger role in ensuring the quality of services paid for by Medicaid in residential care settings.
Federal Trade Commission oversight of advertising and contracting should be enhanced to ensure that sales claims are justified and backed up by contracts.
Federal agencies should develop a common database with information on assessment and outcomes across all care settings.
The states should conduct surveys of assisted living and other residential care settings facilities to ensure that standards are adequately met. The surveys should include information on resident satisfaction, consumer experience, residents’ involvement in care plans, and outcomes.
The federal government should provide increased funding and authority for long-term services and supports ombudsmen to intervene on behalf of assisted living and residential care residents.
The Social Security Administration should be able to share Supplemental Security Income and Supplemental Security Disability Income information with states while protecting consumers’ privacy rights. This would help identify unlicensed board and care homes.
Uniform definitions and standards of care
Federal agencies should monitor the progress of state efforts in developing common definitions of, and minimum standards for, services and facilities in assisted living residences and other residential care settings.
Federal definitions and standards should be considered if states do not develop standards that adequately ensure quality and protect consumer rights.
Adequate, coordinated federal and state oversight and enforcement
The Centers for Medicare & Medicaid Services, the states, and all other regulators should vigorously enforce all regulations in long-term services and supports (LTSS) facilities and home care within their respective purviews. They should all work to ensure the health and safety of nursing home residents and other LTSS recipients. Regulators should pay particular attention to infection control regulations.
Policymakers should conduct oversight and take steps to address the impact on residents of private equity ownership of nursing homes and other long-term services and supports providers. This includes its impact on the quality of care, staffing, and resident rights
Federal and state governments should ensure the collection and public reporting of comprehensive, accurate data during an epidemic/pandemic and other public health crises or natural disasters.
Federal and state governments should work together to establish uniform data collection requirements for assisted living facilities during epidemics/pandemics.
Data collection should include demographic information including race, ethnicity, sexual orientation and gender identity, and other key identity characteristics. When requesting data that may be sensitive to individuals, policymakers should follow best practices. Clear nondiscrimination policies and emphasis that disclosure is voluntary should be posted. Individuals retain the right not to respond.
States should rigorously enforce mandatory minimum standards and make other efforts to promote quality and ensure quality outcomes for individuals in residential care settings.
States should empower ombudsmen to have immediate access to all residential care settings without advance notice.
Each state should designate a lead agency to coordinate policy, including licensing, monitoring, quality improvement, and enforcement efforts in all residential care settings.
Licensing standards and monitoring should reflect residents’ level of disability and the provider’s performance history.
States should require public agencies to ensure that the same social and medical services available to people residing in the community are also available to residents of assisted living and other residential care settings.
During public health emergencies affecting LTSS facilities, cases and deaths should be reported publicly. Staff and resident data should be reported separately. Other best practices for demographic data should be followed, including reporting data by race, ethnicity, or zip code.
States should report cases and deaths by facility so the public may make informed decisions regarding admissions and transfers.
Service plans and contracts for assisted living and residential care
States should require resident assessments and the development of regularly updated individual care plans. Assessments should be valid and reliable, and core items should be uniform across populations.
Residents, their family members, or their representatives, as appropriate, should be fully involved in developing and updating care plans.
States should require that providers of assisted living and residential care have a contract with each resident. The contract must disclose such information as the services provided and their costs, residents’ ability to purchase additional services from outside providers, and the circumstances and conditions that would require the resident to move from the facility.
Elements of the contract should be discussed and made available in writing preadmission. This should be in plain language, available in multiple languages, and shared with prospective residents and family caregivers.
States should also develop minimum standards that include services to address the increasing health, medical, and social needs of assisted living facility residents.
Promotion of privacy and home-like environments
The federal government and the states should provide incentives (including, but not limited to, grants and loans) for new, affordable models of LTSS. Incentives should emphasize resident-centered care, a home-like environment, a positive workplace culture, and opportunities for resident involvement in the community.
States should require assisted living to provide:
- private living units—shared only at the resident’s request— with a bathroom, storage facilities, and sleeping, living, and food preparation areas;
- a residential setting that provides or coordinates flexible personal care services, 24-hour supervision, assistance (scheduled and unscheduled) with activities of daily living, and health-related services;
- a services program and physical environment designed for aging in place—facilities that minimize the need for residents to move within, or away from, the setting to accommodate their changing needs and preferences; and
- an organizational mission, a service program, and a physical environment designed to maximize residents’ dignity, autonomy, privacy, and independence.
Providers with existing facilities that need renovation to create private baths, kitchenettes, and other improvements should have incentives for making such changes.
In states where a certificate-of-need process exists, that process should be employed to promote the development of home-like, consumer-centric nursing facilities and assisted living/residential care settings.
The federal government and the states should support the exploration of changes in staffing models to give more person- and family-centered training, autonomy, and career advancement opportunities to direct-care (frontline) staff.
States should require all nursing facilities and assisted living/residential care settings to maximize each resident’s dignity, independence, autonomy, and privacy.
State and federal governments should work with nursing homes, assisted living residences, and other licensed residential care facilities to move toward a single-room occupancy model, if possible, to stem the spread of infectious diseases and promote privacy. Couples who want to share a room should be accommodated.
All new or retrofitted nursing facilities and other settings should provide private living quarters, except when residents request to share rooms or apartments. States should ensure that any new facilities meet consumers’ needs and preferences.
The federal government should conduct research to develop measures of clinical, functional, and quality-of-life outcomes. It should explore innovative approaches to achieving high-quality outcomes in both existing and new facilities.
The federal government should couple new quality-related standards with financial assistance to states to improve resident services, increase monitoring and enforcement efforts, train operators and staff, and help owners retrofit homes when necessary and feasible. The funding could come through Medicaid and other sources.
The federal government and the states should require providers to hold residents’ beds for them during temporary absences as long as the residents’ fees continue to be paid.
Government reimbursement programs should provide funding to hold a unit or bed for an eligible individual during a temporary absence of reasonable duration.
The federal government and the states should enact laws that establish the right of residents in nursing facilities and residential care settings—or their legally recognized decision-makers—to use video and technology for monitoring the quality of care, documenting the provision of care, and facilitating virtual visitation.
Video technology should be allowed only when protections are in place to ensure it does not infringe on roommates’ right to privacy.
For residents unable to provide consent, care must be taken to balance the benefits of video technology with the need to protect the resident’s right to privacy.
Providers should be prohibited from discharging or refusing to admit a resident who chooses to use such technology. Nursing facilities and assisted living/residential care providers should be required to notify residents or family members when video technology is being used by the facility or their roommate.
Residents' safety in nursing facilities and residential care settings
Agencies that refer individuals to nursing facilities and residential care settings should be required to inform the facility when an applicant poses a potential threat to the safety of other residents.
Preadmission screenings should include questions to identify individuals who present a risk of violent behavior.
When facilities deny access to an individual who is otherwise eligible for publicly funded services on the basis of a criminal history (i.e., when a judicial sentence has been completed), the federal government and the states must provide alternative access to needed services. This should include access to services in the home or community, specialized facilities for those who present a risk of violence and need facility-based care, and enhanced family caregiver support.
The federal government and the states should not parole or pre-release violent offenders to LTSS facilities that serve the general population.
Violent offenders who are subject to the jurisdiction of federal or state correctional agencies and who need LTSS should be served by correctional agencies in units that meet appropriate staffing and training requirements for proper care.
At the individual and systems levels, LTSS agencies and state corrections agencies should begin to plan for the release of older adult nonviolent offenders through early-release and other programs.
Consumer participation in LTSS facilities’ operation
All nursing facilities and large assisted living/residential care settings should be required to create a board or an advisory body to review operations. Advisory boards should include at least two independent non-resident consumer representatives. States should enforce the family and resident rights outlined in the 1987 Nursing Home Reform Act. They should require nursing facilities, assisted living residences, and other large residential care settings to facilitate the formation of community, resident, and family councils.
States should require nursing facilities and assisted living/residential care facilities to allow notices of council meetings to be posted, permit mailings to prospective members, provide a meeting room within the facility, and provide a contact person to respond to the council’s concerns.
Facilities should arrange for staff to attend council meetings and should allow the presence of outside representatives only upon the council’s request.
States should provide adequate funding to enable state LTSS ombudsmen to visit all facilities.
States should have a full range of sanctions available, including (but not limited to) civil money penalties, a ban on all new admissions, monitoring of directed plans of correction, denial of Medicaid payment for new admissions, and appointment of temporary managers and receivers.
Remedies should be swiftly imposed, with harsher sanctions for recurring, serious, or widespread deficiencies.
States should ensure that licensing laws specify the conditions of care for each type of facility, including all subacute and LTSS beds in hospitals and special care units for residents with dementia.
States should encourage facilities to involve family members and the local community in facility activities and help residents develop and maintain relationships in the broader community. Community organizations should be encouraged to facilitate the involvement of nursing facility residents and their families as volunteers when possible.
Private right of action
States should guarantee and protect the rights of residents. Residents should have the right to pursue a private right of action in court when nursing facilities violate state laws and regulations or when the government fails to enforce such laws. Medicare and Medicaid participants should be provided with a private right of action to sue nursing facilities for violating federal laws and regulations or the government for failing to enforce federal laws and regulations pertaining to care and services.
Federal and state law should require providers to reimburse the legal costs of program participants or their representatives if the court finds in the participant’s favor.
States should establish a resident’s right to alternative forms of dispute resolution, such as mediation, provided the states do not inhibit or discourage residents or their families from resolving disputes through other means, including the federal and state enforcement system, the ombudsman program, and the courts.
States should ensure a fair and timely hearing process for residents who wish to challenge proposed transfers or discharge decisions. The process should include the same due process protections applicable to Medicaid fair hearings.
The administrative and judicial appeals process should be streamlined to minimize a facility’s ability to avoid or delay penalties.
A facility’s use of binding arbitration and dispute resolution agreements as a condition of admission or continued stay should be prohibited.
Policymakers should enact and strictly enforce antidiscrimination and civil rights laws. All applicants and residents in nursing facilities and all residential care settings have a fundamental right to be free from discrimination.
Antidiscrimination laws should be amended to include sexual orientation. They should ensure the right of same-sex couples to be housed together in assisted living, residential care settings, nursing facilities, and other LTSS settings (see also Civil Rights for additional policy on antidiscrimination laws).
States should ensure confidentiality of residents’ information.