Massachusetts’ chief lawyer and law enforcement officer plans to draft new regulations for assisted living providers in the state in an effort she says is meant to protect assisted living residents from “unfair and deceptive” practices.
Bay State Attorney General Andrea Joy Campbell is seeking public feedback to inform the drafting of consumer protection regulations specific to assisted living, which the state currently does not have. The regulations, she said, would aim to protect residents from unfair and deceptive acts and practices, including provider misrepresentation of available services, fees deemed to be improper and evictions deemed to be unlawful.
Citing Chapter 93A of the state’s consumer protection statute, Campbell said she is authorized to create regulations requiring providers to disclose information about their contract terms and is authorized to declare that certain acts and practices are unlawful.
Owners and operators will benefit from greater specificity surrounding their legal obligations, and residents will benefit from stronger protections, the attorney general said.
The leader of at least one state senior living industry advocacy group said the group will work with the attorney general to ensure that residents remain safe and that assisted living remains an accessible and affordable choice. But he added that the sector already is covered by existing regulations.
Brian Doherty, president and CEO of the Massachusetts Assisted Living Association, said that assisted living residences are overseen by several state entities, including the Executive Office of Elder Affairs and the Executive Office of Health and Human Services Ombudsman. In addition, new commissions were created just last month by the state’s long-term care bill.
“Many consumers aren’t aware of the robust regulations in assisted living, including that EOEA staff visit each community in person every two years to ensure compliance with regulations, and that they sometimes issue enforcement up to and including suspension of the certification of a residence or a temporary hold on new admissions until particular aspects of operations are improved,” Doherty told McKnight’s Senior Living.
He added that incidents affecting residents are reported by assisted living staff to the EOEA within 24 hours. In addition, resident rights are posted in each community and provided to new residents. And under a new law passed this year, the EOEA has the authority to fine noncompliant providers.
According to the state Executive Office of Elder Affairs, more than 17,000 people reside in assisted living communities in Massachusetts. Anyone can provide feedback to the Attorney General Office’s Elder Justice Unit through an online form. After collecting comments, Campbell’s office will draft regulations and hold public hearings for additional feedback.
“Every resident of an assisted living facility has the right to live in a safe and habitable environment, free from abuse, neglect and exploitation,” Campbell said in a news release. “Our older adults deserve to age safely with dignity and respect, which is why creating consumer protection regulations for assisted living facilities is so important and responsive to their advocacy.”
Medicaid estate recovery limited
Another legislative change that could affect assisted living residents and their families was part of the Act to Improve Quality and Oversight of Long-Term Care, signed into law by Gov. Maura Healey (D) last month.
The act includes a provision restricting the state’s estate recovery program to the federally set minimum. The new policy also rules out estate recovery from residents receiving assistance under CommonHealth and personal care attendant services.
State Sen. Jo Comerford (D-Hampshire/Franklin/Worcester), who championed the estate recovery provision in the bill, said the state’s Medicaid program, MassHealth, “went above and beyond the federally set floor” that requires state Medicaid programs to recover costs from the estates of deceased beneficiaries who received long-term services and supports in medical institutions or nursing homes. Comerford said the state often claimed family homes to recoup expenses, stating that 90% of those repayments came from forced sales of family homes.
The new provision limits MassHealth estate recovery to the federally set minimum for nursing home care, home- and community-based services, and related hospital and prescription drug services for people aged 55 or more years. It also removes estate recovery for people with disabilities receiving assistance under MassHealth’s CommonHealth programs.
The act, according to the Massachusetts Law Reform Institute, brings the state in line with the majority of other states for Medicaid estate recovery.
This spring, a bill was reintroduced to end the Medicaid estate recovery practice. The Stop Unfair Medicaid Recoveries Act of 2024, first introduced in 2022, would repeal the federal Medicaid estate recovery mandate that requires state Medicaid programs to go after families and estates for repayment of Medicaid long-term care services, including home- and community-based services provided by assisted living operators and others, and nursing home care.
In a 2021 issue brief, Justice in Aging called on Congress to amend federal law to eliminate Medicaid estate claims, which Justice in Aging said perpetuate poverty and inequality for minimal return. The brief was authored in collaboration with California Advocates for Nursing Home Reform, National Academy of Elder Law Attorneys, the National Health Law Program and the Western Center on Law & Poverty.
