Assisted Living Contracts - Know What's In Them Before You Sign

It was 2013 and appeared to be just another day at the Glenwood Gardens Senior Living Facility in Bakersfield, California. As residents went about their day and began congregating in the dining area, an incident occurred that continues to be fodder for arguments regarding what the responsibilities should be for those who work in these communities.

Lorraine Bayless, an 87-year-old resident, had just walked into the room when she collapsed to the floor. Others in the room called for help and a staff member placed a call to 911 and spoke with Tracey Halvorson, the dispatcher manning the emergency line.

According to records obtained by the media, Halvorson asked the employee to begin CPR on Bayless when she was told that employees are “not allowed to do CPR at this facility”. For 7 minutes and 16 seconds, the 911 operator pleaded with the employee to do CPR to keep the patient breathing until help arrived. The transcripts showed that Halvorson begged the staff to get help for the elderly woman but to no avail.

“Can we flag someone down on the street? And get them to help this lady?”

Halvorson asks in desperation, offering to teach anyone willing to help how to perform CPR. “As a human being I don’t…you know…is there anybody that’s willing to help this lady and not let her die?”

The answer from the employee continued to be “No” and no one performed CPR on the victim. When medical personnel did arrive, she was transported to the hospital where she was pronounced dead.

Watch the actual news report about the Glenwood Gardens incident

As horrible as this sounds, Independent and Assisted Living facilities in many states are not licensed to provide medical care to their residents. California is one of those states.

The executive director of Glenwood Gardens at that time, Jeffrey Toomer, released a public statement defending the policy of the facility. “Our practice is to immediately call emergency medical personal for assistance and to wait with the individual needing attention until such personnel arrives,” says Toomer. “That is the protocol we followed.”

This set off an uproar in the area and eventually nationwide.

“It is totally unethical for anyone, no less medical personnel, to stand by and watch a person die,” said Carole Lieberman, M.D., who was a psychiatrist in the area during that time.

“I think the nurse who let her (Bayless) die should be fired and criminally charged, along with a civil suit being filed against the home,” said Lieberman. “This is incredibly unethical and disturbing.”

There is also more to this story.

The death certificate stated that Bayless suffered a stroke, not cardiac arrest, so medical personnel felt that even if she were kept breathing, she probably would not have survived anyway. Medical professionals also say that even with CPR, only about 5 percent of people who have a cardiac arrest outside of a hospital setting actually survive. Finally, Bayless’ family members, one of whom is a nurse, were satisfied with the way the living facility treated this situation.

Further, it was also unclear if Bayless had a Do Not Resuscitate order but even if she didn’t, staff were still not allowed to perform CPR.

This blog is not about advance care directives (although I fully support having them in place and will write more about that next week), but about seniors and their care givers being fully aware of what the policies are of the independent or assisted living community before they sign a contract.

Here's the reality, the field of elder care is loaded with countless rules, regulations and guidelines and these can vary wildly from state to state and even from town to town. Aging recently did an article on examples of provisions that some families were unaware existed in the contracts they signed.

Let’s take a look at some of them and I’ll add my commentary as well (in italics);

Staff who work at assisted living communities in many states are not allowed to even place band-aids on an elderly resident, even if they are a registered nurse. According to, this regulation is aimed at controlling the level of care an assisted living community can legally provide and in turn, doesn’t raise the expectations the family or loved ones may have from the facility.

On the face of it, regulating something seemingly as benign as putting a band-aid on a senior may sound silly, but consider this, many elderly people have skin changes and a simple band-aid could result in skin tears and subsequent infections. So, this apparent minor intervention could have serious consequences and liabilities for the resident and the facility.

Similar policies in many states also prohibit staff from directly handing over the counter medications directly to residents. Staff in many facilities cannot open an aspirin bottle and give the tablets directly to the resident. By doing so constitutes “dispensing” and without proper training or licensure, staff are not allowed to "dispense".

Instead, staff must put the aspirin bottle down, the resident must pick it up and open it and get their own tablets. If they cannot open the bottle, they must ask another resident for help. If staff helped open it, they would be “dispensing”.

Again, understanding why this policy does exist is important. Given the number of elderly residents on blood thinners or being treated for liver problems can open the door for drug interactions with aspirin or acetaminophen products. A seemingly simple act of giving an aspirin could have dire implications upon the health of a resident and serious liabilities for the facility.

Most states require these facilities to develop a set of plans that govern how a senior will be treated. These go by different names, care plans, treatment plans, etc. and must be put together within a specified period and be updated on a regular basis.

The point of these plans are that each resident will be assessed, monitored and treated as

an individual. These plans are not to be "cookie cutter" documents - that is one size fits all. These plans should be developed in a multi-disciplinary team meeting with input from the team involved in these communities. They must also be updated on a regular basis as a senior's needs can change quickly. If the facility your loved one is in does not have one or does not update them on a regular basis, ask why.

Check on medication adherence policies. In many states, residents must take their medications as prescribed or face being discharged.

Sounds pretty cold, right? Well consider this, if a resident is required to take medication for arrhythmia or angina and refuses to do so, staff may be put into the same position as those at the Glenwood Garden case I cited earlier. Other concerns include residents who may be taking medications for severe and persistent mental illness. Refusing to take these medications could result in psychotic acting out and put other residents and staff in danger.

How dangerous can some people be with issues of dementia?

In 2009, 82-year-old professional wrestling legend, Verne Gagne, body slammed his roommate at a Minnesota nursing facility.The assault broke the hip of 97-year-old Helmut Gutmann, who died of his injuries some three weeks after the incident. Authorities ruled the death a homicide.

When I was made aware of this case, there were plenty of jokes made about the case but there was nothing funny for the family of Mr. Gutmann or for the administration of the nursing facility.

So, if this could happen in a facility with staff present and with patients who are taking medication as directed, imagine what could happen should a resident with severe behavioral issues stop taking their medication in an assisted living facility. You can see why medication adherence policies are needed in these facilities.

In many states, assisted living policies around the medical needs of a resident may preclude them from residing in the community.

Although most communities can offer assistance in certain needs like medication management, insulin injections or glucose monitoring, those in need of 24/7 medical monitoring are not appropriate for that level of care. Assisted living and Independent Living programs are not hospitals and as such cannot provide round the clock medical care. If such a facility is required, consider a nursing home.

Many facilities may require that seniors participate in leisure and social activities (and may even maintain the right to discharge them if they do not).

Of course, staff do not have time to stand over a resident and force them to comply but there are good reasons for this. Seniors who withdraw from community activities may be suffering from depression or even an illness. Research does show that an active senior is a happy senior.

Several facility contracts specifically prohibited staff from assisting seniors in clipping their toenails.

What?? Again, it sounds quite silly on the face of it but behind this policy lies sound reasoning. Not cutting toenails appropriately can result in serious infections for seniors with diabetes. Should an infection occur and not heal, the toenail must be removed creating discomfort and pain for the senior. The infection could have more serious consequences as well for seniors because their immune system is not as efficient as a younger person's and the infection could easily grow out of control.

Check the contract to see if the facility has a dementia training requirement for its staff.

Most states require staff to be trained in interacting with dementia patients. This should extend beyond the direct care staff and also include the cooks, maintenance workers and even administrators. Check with the facility you are planning to put your loved one in and ask about their staff training requirements.

If staff beyond the direct care workers are not required to be trained, you may want to think twice about placing your loved one there. At some point, other staff will come in contact with a dementia patient and knowing how to behave in their presence is imperative for their well being.

Ask about the training requirements of the staff at the facility. Training and development is an ongoing process and education is a necessity for anyone who comes into contact with residents. It's also important to ask when the training materials have been put into place and how often they are updated. The field of elder care is always changing and evolving and the knowledge of caregivers must keep pace.

The Glenwood incident discussed in the beginning of this blog highlighted CPR policies that exist in all facilities.

Policies are in place stating that if it is apparent that CPR would not help someone who is down, staff do not need to attempt it. This would apply to finding a resident who is stiff, skin is blue/gray, body is cool to the touch, etc. Be sure that you fully understand the policies and procedures a particular community has regarding CPR and Do-Not-Resuscitate (DNR) orders.

Those things I mentioned above may not be in every contract for independent or assisted living programs. But the existence of such varied and complex policies underscores the need for families and their elderly loved ones to engage in sufficient research before determining whether to make the move to assisted living or independent living and which facility will best fit their needs.

There are also some other things to look for in the contract before signing and these are basically the nuts and bolts of the property agreement;

Closely review the accommodations and the terms.

Make sure it covers the actual unit the resident will be staying in and the length of time for the contract. Don't sign for a "generic unit" and make sure you see the one you are moving into. Although the majority of these facilities are honest and trustworthy, you don't want to see the "ideal unit" and end in one that does not fit your needs.

Know the fees, the services provided and how the meal plan is structured.

Read those property provisions closely. Meals could be an extra charge and if they are included in the contract, look for wording that may indicate the "special diets" could be an extra charge. Some contracts could call for services such as a button to call for help as an extra cost or the installation of an extra phone line to monitor pacemakers may be an extra charge. Know the requirements inside and out before signing.

Know the residency requirements.

Upon admission, a senior's health may be stable but what happens if their health declines or they have a sudden serious medical problem. You certainly don't want to be facing eviction during a health crisis. Find out what the facility will do to assist in finding an appropriate facility. And make sure that if a senior is hospitalized, the facility can't pack up their property and terminate the contract without due process.

Know maintenance requirements and appropriate use of the unit.

Review what is and isn’t permitted in the unit. For instance, a senior moves in and health conditions warrant the use of oxygen at some point. Having oxygen in a unit may constitute a fire hazard and may not be permitted by the facility.

Know the grounds for termination.

You do not need surprises during a crisis. Understand this policy thoroughly.

Don’t be pressured to sign immediately.

Personally, I would run as fast as possible from any facility that employs pressure tactics to sign a contract. You have a right to review the form and make a list of questions you may have concerns about. Remember, once the contract is signed, the community has no financial incentive to change anything.

As with most things, contracts are loaded with legalese that can be difficult to understand. It may be beneficial to hire an attorney to review the contract and explain it in detail to you and your loved one. There may be a cost up front, but it will save you money and aggravation in the long run should circumstances change suddenly.

In my next blog, I will look at advance healthcare directives and their importance.

Below is a checklist from that may be helpful when checking out an assisted living facility. It can be downloaded and printed.

Attorney Connelly practices in the area of elder law. This area of law involves Medicaid planning and asset protection advice for those individuals entering nursing homes, planning for the possibility of disability through the use of powers of attorney for the both health care and finances, guardianship, estate planning, probate and estate administration, preparation of wills, living trusts and special or supplemental needs trusts. He represents clients primarily in the states of Rhode Island, Connecticut and the Commonwealth of Massachusetts. He was certified as an Elder Law Attorney (CELA) by the National Elder Law Foundation (NELF) in 2008. Attorney Connelly is licensed to practice before the Rhode Island, Massachusetts, Connecticut, and Federal Bars.

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