About the Author

Jeffrey Downey is a trial attorney with over 30 years of litigation experience.   He regularly prosecutes nursing homes and assisted living facility for the neglect of their residents.  He also works with advocacy groups to help educate consumers regarding the pervasive problems of neglect in our long-term care system. His clients have testified before the United States Congress, and he regularly educates other attorneys about our long-term care system.


  1. Introduction


Selecting a long-term care facility can be a challenging and difficult job, as most people not familiar with the process.  Families typically encounter such an admission as an unexpected result of an injury, stroke or heart attack.  Most people simply rely upon the hospital social worker’s recommendations for a skilled care rehab facility.


Patients and their family’s need to research these facilities carefully and visit them before agreeing to a transfer.  The selection of a facility that is close by, to allow frequent visits is always a good idea.  Long term care patients need family advocates to assure they get proper care.  


Assisted living facilities also present unique challenges.   Unlike nursing homes, these facilities are not well regulated and enforcement of the few regulatory standards in place tends to be lax. Some assisted living facilities demand large initial payments, and their contractual terms are usually stacked against the resident


Before selecting a long-term care facility, you would be well advised to consider the following issues in advance of making a placement decision.


  1. Research the Facility.  What is its Survey Record?


Try and get facility recommendations for someone you trust, like a treating primary care doctor or family friend who is a healthcare provider.  If your parent was recently admitted to a hospital and will need rehab, contact the hospital social worker early on to get a list of facilities.  Keep in mind that the social worker may not be able to give you formal recommendations – but she might answer the question where she would put her mom, if she had to choose.


Nursing homes and assisted living facilities are regulated by their respective licensing agency.  In most states, you can find inspection reports of the facility that provides a snapshot into their regulatory compliance.   For nursing homes receiving federal funding, you can review the CMS website (


In Virginia you can obtain information about an assisted living facility by entering their name in this website:(


  1. What does the facility look like and what are the staffing levels


Some assisted living facilities look like resorts, but if they don’t have the necessary staffing levels to keep your loved one safe, the facility needs to be avoided.  Prospective patients should tour the facility and ask about the staffing levels and their survey record (which is typically posted in the facility).  Review the activity schedule and menu and find out if they can meet special dietary preferences.  Walk the halls to see if the residents’ rooms smell of urine or if the residents are sitting in wheelchairs, unattended.  Try and speak to some of the residents about their care experiences when the staff is not around.   And take notes.


  1. Read the fine print, some terms may be negotiable.


While skilled nursing facilities won’t negotiate their financial terms, some assisted living facilities will.   It never hurts to ask, but do not wait until the day of admission to negotiate an assisted living agreement.


Almost all assisted living facilities will have the patient or his/her family sign a contract or admission agreement.  It is not unusual to have these agreements presented on the day of admission, almost as an afterthought.  Residents and family members rarely read through these contracts in detail and are often unfamiliar with the legal terms used.  In reviewing a contract,  it is important to read the entire contract before you make a decision for admission.  Review the paperwork before the day of admission, if possible.


Many assisted living facilities require significant downpayments to secure a room.  Some private chains charge several hundred thousand dollars. Some assisted living facilities will negotiate these downpayments and you should evaluate whether any portion of that downpayment is refundable.  Some patients only stay in assisted living facilities a few years.  If you loved one’s health status changes, they may be discharged from assisted living sooner than you anticipate.  Make sure this issue is addressed in the contract and do not be afraid to negotiate the contract.  Also, keep in mind that all representations that are stated by the staff may not be enforceable unless they are included in the contract.  Most contracts contain clauses stating that any oral or other representations not in the contract are not enforceable.


In reviewing the contract, you need to make sure that all of the services that are being provided are actually listed in the contract.  Many times assisted living contracts are one-sided and reflect more of the obligations of the family members than the facility.  If the facility is going to be providing medication management, make sure that service is set forth in the contract.  If the facility is claiming 24-hour nursing care, make sure that provision is in the contract and make sure you understand whether that involves a nurse who is available in the facility versus a nurse who is on-call to travel to the facility.


Another common clause in many assisted living contracts involves a mandatory arbitration clause.  This is a clause in which you waive your right to pursue a jury trial should your loved one get abused or neglected.  I advise my clients not to sign these agreements as it could severely curtail your rights in any legal setting.  Most facilities are not going to reject a resident because he refuses to waive his legal rights.


  1. Is an assisted living facility suited to meet the needs of your loved one?


In the last decade there has been a change in the residents that are seeking admission to assisted living facilities.  Assisted living facilities are increasingly recruiting patients who have significant illnesses, sometimes advanced dementia.  Assisted living facilities, depending on the state, can also admit patients who are terminal.  Most assisted living facilities are private pay and their costs are not covered by Medicare or Medicaid.


Assisted living facilities are required to screen residents before admission to determine if they can meet that resident’s needs.  When census gets low, assisted living facilities may err on the side of admitting a resident who has multiple medical conditions that may not be suited for an assisted living environment.  If a patient is immobile or at risk for developing skin breakdown, he/she may not be appropriate for assisted living environment.  Some states, including Virginia and Maryland, preclude the admission into assisted living facilities where that resident has a significant pressure wound, typically beyond stage 2.  Other assisted living facilities might admit patients who have diabetes and require vigilante monitoring of blood sugar levels.


Before admitting your loved one into an assisted living facility, you should have a conversation with the treating doctor to find out if this is really the best environment for the patient.  Sometimes an assisted living facility will admit a patient, take a significant downpayment, and then inform the family that they have to hire a private duty nurse.  Some people end up paying more for private duty aides than their monthly rent.  If your loved one requires assistance with all acts of daily living (hygiene, toileting, feeding, dressing) make sure the contract states those services will be provided by the facility’s staff.


Before signing any assisted living contract, you should have a discussion with the facility about what types of circumstances would trigger the requirement that the family obtain a private duty nurse.  In an abundance of caution, you should consider including language in the contract that specifically addresses that issue.’


  1. Does the facility have a full-time doctor and/or Nurse present on the unit?


Most nursing homes and assisted living facilities do not have a medical doctor or even a nurse practitioner present during the day.  Typically, the doctors will visit weekly to treat patients that are placed on their list of rounds.


Many assisted living facilities will advertise 24-hour nursing care.  However, you need to determine whether there will be a nurse present in the facility for 24 hours.  You also need to make inquiries as to whether that a nurse is a registered nurse, licensed practical nurse, or a nurse aid.  Nurse aides tend to have minimal training and are generally unequipped to care for high acuity patients.  There are also significant differences in qualifications between a registered nurse and a licensed practical nurse.


Many assisted living facilities will also represent that they have medical doctors available on staff.  The fact that a doctor is on staff in an assisted living facility does not mean that he is present at that facility.  In nursing homes most doctors will visit periodically, rarely more than once a week. You need to ask the assisted living facility that you are evaluating whether the doctor that is on call at all times, and how often that doctor will be visiting or evaluating your loved one.


  1. Will your primary care doctor be able to visit your loved one in the assisted living facility?


Most nursing homes and assisted living facilities have their own treating doctors, and will refuse to allow other doctors to visit their facility.  If you are lucky enough to have a primary care doctor that is willing to visit an assisted living facility, you need to make sure that the facility will grant him access to the patient after admission. They may require you to take the patient out of the facility to see that physician.


  1. What type of training has the staff received to care for elderly residents?


Both skilled nursing facilities and assisted living facilities are required to provide training to their staff, including their nurse aides.  However, there can be vast differences in training between the two types of facilities.


In assisted living facilities, the majority of the staff tends to be nurse aides working for amounts close to the minimum wage.  Staff members may receive as little as 16 hours of classroom training in some states before they are qualified for a job.  Corporate management may place constraints on staffing to increase their bottom line.


Before admitting a resident to an assisted living facility, you would be well advised to inquire about the number of hours of training that each nurse aide receives.  Also ask if they are receiving specialized training in areas like dementia care, fall prevention, medication administration, pressure sore prevention, and diabetes management.


  1. What regulations are in place to govern this facility and who enforces these regulatory requirements?


Nurse homes are heavily regulated by the Federal Government.  Regulatory standards can be found at 42 C.F.R. 483.10, et seq.


Assisted living facilities are regulated by the states and have less rigorous regulatory standards. Virginia Regulations for assisted living facilities are set forth below:



When visiting a facility, ask the tour guide to review the facility’s survey record.  It should be posted in a public area in the building.


  1. Does the facility provide rehab services or hospice care?


Most skilled care nursing facilities have Rehab services available five days a week.


In an effort to recruit an ever increasing patient population, some assisted living facilities will provide rehab services on site.  Typically, they are physical and occupational therapists or independent contractors who treat assisted living patients.  The fact that a physical or occupational therapist is working in an assisted living facility does not change the requirement that they provide only medically necessary skilled care services.  If the patient has suffered an injury that will require intensive physical or occupational therapy, an assisted living facility may not be a good fit.


If your potential assisted living facility is offering rehab services, inquire as to whether those rehab services are covered under the room and board that your loved one is currently paying.  In most assisted living facilities you will find out that there are separate additional charges for skilled therapy services.


Some of the larger assisted living facilities are also teaming with hospice agencies.  This begs to question why if someone was so sick that they were considered terminal, would they be appropriate for an assisted living facility.  However, when a patient elects to receive hospice services that are billed under Medicare, then hospice will take over the billing of all such services.  This may confer a significant benefit to the assisted living facility because while they are still charging you their high monthly rate for room and board, the hospice agency then comes in a bills Medicare for your hospice services.  As such, there is the great potential for duplicate billing and added profits to the assisted living facility who benefits from the services provided by the hospice nurses who end up taking over some of the staff’s typical care duties.


Anyone considering an assisted living facility for a terminally ill patient should explore the issue of duplicative nursing services.  While it would certainly be appropriate for you to pay room and board in an assisted living facility while you’re receiving hospice services, arguably if you are receiving hospice services that are billed to Medicare, you may want to ask for a discount for the money that they staff is now saving by not having their nursing staff provide for your daily care needs.


  1. Participating in Care Planning and resident care?


Ask the facility whether the family can participate in the care planning process and how that is accomplished.  Care planning is the process where the staff puts together a plan of care to meet the needs of the patient.  Where a resident is suffering from dementia, its very important that a knowledgeable family member participate in the care planning process.


You are always better served by going to the facility in person and meeting the members of the care planning team that will be guiding the care your loved one received.   Get emails and phone numbers of staff, so you can communicate and document issues when they arise.


Ask the staff what is typically documented about the resident’s condition and behaviors.

There is great variability between assisted living facilities as to the type of documentation that is taking place.  While some assisted living facilities will document daily care and changes in condition, many assisted living facilities have only scant documentation.  In fact, some assisted living facilities that offer medication administration do not even consistently document the administration of medications.  This can create serious problems in evaluating the effect of these medications and determining whether in fact your loved one is even receiving the medications that have been ordered by a doctor.  Where a resident has significant underlying behaviors that are difficult to manage, an assisted living environment may not be suited for his needs.


If you have questions about a long-term care facility, call the office of Jeffrey Downey for a free, initial consultation.  We’ll check our data base and list of troubled facilities to assist you with your decision.  We handle cases in Virginia, Maryland and the District of Columbia.


Contact Information:

The Law Office of Jeffrey J. Downey, P.C.

8270 Greensboro Drive,

Suite 810

McLean, VA 22102

Telephone: 703-564-7318

Fax: 703-883-0108



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