Understanding the client-elder’s living situation and ADLs provides the groundwork for assessing the housing option that best fit the elder’s needs.
We always ask these three questions:
Where is the elder currently living?
Where will he or she live in the near future?
Where will he or she live in the distant future?
Maybe our client needs more assistance at home. Maybe he or she needs adult day care or other care in the community such as Meals on Wheels, or maybe our client needs to move out of the home and into a residential care facility. All housing needs are local, so we learn what home- and community-based services are available within the client’s community.
Perhaps our most important responsibility as an elder-centered law firm is to inform our client of these options, make recommendations, and advocate for quality of life and quality of care. Our client-elder’s basic needs for food and shelter should be met in a safe and secure environment with minimal constraints on his day-to-day activities. While we may want that place to be our client’s own home, some people’s needs can be met only outside the traditional home setting.
Most people seeking long-term care outside the home want to live as normal and unconstrained a life as possible in a situation that will keep them functioning as well as they can. Concerns about quality of life and comfort ought to predominate over facilities’ concerns about keeping the client “safe.” Quality care is not just the absence of bad things happening in the care setting (such as falls, bedsores, or weight loss), which facilities may try to prevent by restricting residents’ liberty in the name of safety and security. Instead, good long-term care aims at least to slow the rate of decline of the elder’s physical, emotional, and social functioning. Viewed in this way, goals related to quality of life and quality of care are compatible rather than competitive.
When we speak of alternative housing for the elderly, that usually brings to mind a nursing home. Nursing homes provide care to persons who are chronically ill or recuperating from an illness and who need regular nursing care and other health services short of hospitalization. They usually provide rehabilitation programs, social activities, supervision, and basic room and food services. Nursing homes are state licensed and many are certified for Medicare and Medicaid reimbursement. In many instances, though, a nursing home is not the most appropriate solution. A variety of alternatives, which fall along a continuum of care levels, have been developed that may be pieced together to fit the particular individual needs. These include:
Shared living residences (also known as group homes)
Foster care
Boarding homes
Homes for the aged
Assisted-living residences
Senior residential housing
Residential health care facilities
Continuing care retirement communities (CCRCs)
Program of All Inclusive Care for the Elderly (PACE)
If the elder must be placed in a nursing home for long-term residential care, the elder’s family, as counsel and advocate for the elder, must be familiar with the rights of the nursing home resident. The most important tool in our arsenal for advocating the rights of the nursing home resident is the federal Nursing Home Reform Act (NHRA), enacted by Congress in 1987. This law says that the care provided to residents must be “in such a manner and in such an environment as will promote the maintenance or enhancement of the quality of life of each resident.” This means that a plan of care must be developed for each nursing home resident; a cookie-cutter approach to nursing home care is not acceptable.
The NHRA requires that upon admission a “Minimum Data Set” (MDS) be developed to serve as a baseline for measuring progress under the resident’s care plan. The MDS includes, among other things, the resident’s medical history, social history, cognitive abilities, physical functioning, environmental needs, continence, mood and behavior patterns, oral and nutritional status, skin condition, and medication use.
Once the MDS is established, the facility must develop for the resident certain “Resident Assessment Protocols” (RAPs). These set forth specific guidelines and protocols for the staff to follow to address the needs identified by the MDS.
A written plan of care is then developed for each resident. It must be developed within seven days after completion of the assessment and reviewed “promptly after a significant change in the resident’s physical or mental condition” or at least annually. In the preparation of the care plan, the resident, the resident’s family, and the resident’s legal representative are entitled to participate and help formulate the guidelines for the plan.
The NHRA permits the nursing home resident’s legal representative to be involved in the development of the plan of care.
