Legal Considerations for Assisted Living Facilities.

I. BACKGROUND II. ALFS VS. TRADITIONAL NURSING HOMES III. LEGAL ISSUES IV. STATE REGULATION AND LICENSURE A. State Regulation of Licensure B. State Regulation of Standards of Care C. State-Created Causes of Action V. TORT LAW VI. CONCLUSION I. BACKGROUND The elderly population in the United States will expand drastically over the next few decades; indeed, the number of persons aged 65 or older is expected to swell to approximately nineteen percent of the nation's population by 2030--a staggering statistic in light of the fact that the present population of elderly people constitutes fewer than 13 percent. (1) Largely because of this fact, long-term care for this population is becoming increasingly important. Traditionally, elderly persons that lost the ability to fully care for themselves would enter a healthcare facility known as a nursing home. (2) However, a relatively new alternative exists in the form of the assisted living facility ("ALF"). (3) ALFs are the fastest growing form of residential care for the elderly. (4) Between 1998 and the present, the total number of ALFs in the United States increased from around 11,459 to nearly 40,000. (5) This option originated as a "market response to emerging demographic trends ... and consumer demands," and as such, is expected to bear the brunt of the expected growth in elderly populations. (6) II. ALFS VS. TRADITIONAL NURSING HOMES Traditional nursing homes and ALFs differ in a variety of ways. Most prominently, traditional nursing homes provide a much higher level of care for elderly patients typically incapable of living on their own. (7) This manifests in substantial supervision over patients, most of whose physical or cognitive impairments are advanced enough to require such a level of care. (8) In comparison, ALFs typically allow patients a far greater degree of independence than their nursing home counterparts, while still maintaining an appropriate amount of supervision. (9) ALF residents do not generally require the high levels of care that are typically associated with nursing home patients; as such, they usually conduct themselves with a certain level of autonomy. However, most ALF residents do suffer from physical or mental limitations: for example, more than half of ALF residents require bathing assistance. (10) Because of this, ALFs typically provide a range of services that promote quality of life and independence, including personal care, meals, medication management, social services, social interaction, transportation, laundry, housekeeping, and emergency response. (11) Essentially, ALFs bridge the gap for seniors between purely independent living and traditional nursing homes. Although ALFs and nursing homes are the most prominent elder residential care facilities, independent living facilities deserve a brief mention. These are facilities for seniors who require the least amount of medical care and desire independence and community living; independent living facilities might offer full apartments in a community setting. (12) They "are most appropriate for seniors who do not need assistance with daily activities, such as dressing or bathing." (13) These facilities provide shared activities and meals in a community setting, and also offer other amenities like transportation and housekeeping. III. LEGAL ISSUES ALFs face a distinct set of legal issues similar to other healthcare or residential care facilities like nursing homes and hospitals. However, as a relatively modern concept, the body of law governing ALFs is considerably less developed than traditional concepts like nursing homes. The legal concerns in this area stem primarily from state laws licensing and regulating ALFs, (14) although there are various statutory and common law tort issues that arise in relation to caring for individuals with impairments. IV. STATE REGULATION AND LICENSURE To understand the role that states play in regulating ALFs, it is important to first realize that assisted living is "not defined in any meaningful way by federal law. …