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The Delaware Department of Health and Social Services came up with a policy to regulate the contents of an assisted living facility agreement. However, like many other policies, the present one is susceptible to errors and omissions that could go a long way to affect the health and wellbeing of residents. An assisted living facility refers to a specialized home where caregivers and families take their loved ones suffering from various disabilities and health conditions such as Alzheimer’s and dementia for specialized attention and care. These patients are referred to as residents because they stay in the homes on full time basis. This report is a critique of Delaware’s policy, which focuses on the loopholes and recommends the best way to fill the same. Model polices of Florida, Alabama and Texas have been referred to for these purposes.
The Delaware Department of Health and Social Services came up with a policy that regulates the contents of an assisted living facility agreement. Many such policies do not meet the required threshold due to individual provisions. Some crucial aspects might have been omitted thereby placing the resident at a disadvantage while at the facility. On a similar note, some aspects might have been included that do not adhere to the established legal standards or best practices. This essay is a critique of the “Service Agreements” section of the policy, which details the contents of the Uniform Assessment Instrument (UAI). It includes the evaluations for readability and productivity/success, suggestions for correction, overall assessment of the section, and appropriate recommendations.
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Evaluation of Readability
The first thing to note is that the intended readers of this policy are caregivers and family members of the resident concerned who wish to admit him or her to the facility for personalized care. Such an audience is not well conversant with legal jargon and complex arrangements of paragraphs. Although they might use an attorney to break down the clauses, there is always no such guarantee in practice. This section evaluates whether the policy took care of the direct audience’s understanding capacity.
The policy gets a plus for the choice of words. It has used simple English throughout the twelve clauses and sub-clauses. For example, the clause that reads, “The service agreement or contract shall address the physical, medical, and psychosocial services that the resident requires as follows,” has clarified that the service agreement is also a service contract. Therefore, readers who are not familiar with what an agreement means would easily understand that it refers to a contract. Only a few cases went off the grid including words such as “abridgement” and “disclaimer,” but these have been used interchangeably. On the other hand, the clauses and sub-clauses have been maintained short to avoid clouding the reader’s thought. Appropriate and sequential numbering makes it easier to move from one clause or sub-clause to another.
Evaluation of Productivity/Success
In his widely read blog, Jeff Anderson offers some crucial tips on “How to Check for Assisted Living Violations”. The author acknowledge that one of the challenges caregivers and families face is the inability to find information about the backgrounds and licensing of communities to which they wish to put their loved ones under care. He believes that the availability of information (through a website or other public media) is sufficient indication of a state’s performance in terms of its assisted living policies. The best performing states always adhere to the following:
- Updating their assisted living information frequently
- Making their information accessible through a web search instead of downloads
- Assisted living records are available from a central place instead of several websites
- The website is easily navigable and intuitive
- There is comprehensive information about a community, including license number and expiration, address and owner’s details, history of inspections by the state, history of violations, and reports on inspection and violations.
The author ranks top ten states in the following order: Florida, Alabama, Washington, Arizona, Georgia, Texas, Virginia, Nevada, New Mexico, and New York. The fact that Delaware misses the list of top ten means that its policy on assisted living facilities is highly ineffective. Delaware follows immediately at number eleven. There is little indication that the Delaware code has been updated any time recently despite the fact that assisted living conditions have changed over the past decade.
Models for Correction
Florida is the leading state in terms of assistive facility policies. Apart from the mere availing of information to the public, the state’s policy is updates its policy every five years to reflect a change in the assisted living needs and circumstances. For example, the last update was made in 2014 to give more freedom and choice to the resident. On the other hand, the Alabama agency’s policy has additional clauses in its service agreement section acknowledging that the resident’s choice should be weighed carefully in cases where he or she has prominent mental incapacitation that would hamper their judgments. Many residents do not prefer to stay in assisted living facilities, thus they would do anything to achieve their exit. The Texas policy goes a step further to provide for the cost implications of a service agreement. Many assisted living facility service agreements tend to provide a wide range of provisions without mentioning the cost implications to the prospective customers.
Model facilities should be able to provide exemplary services at affordable costs. This means that services should not be a cost determiner because facilities should always operate in the resident’s best interests. Florida, Arizona and Texas policies have ensured that facilities provide the best services at affordable costs. On the other hand, these states have ensured that the best interests of the resident are taken into account so that their health is not endangered at the facilities.
The policy is approvable but the service agreement section should include additional clauses that balance the autonomy of the resident and the health implications of such autonomy. Resident autonomy should be expanded especially in the area of privacy. The policy as it is does not embrace the strides made in technology that could possibly violate the resident’s privacy, including the installation of CCTV in rooms. Furthermore, the components of the service agreement as outlined do not capture aspects such as accommodation for the blind, and the people allowed to visit a resident. The service agreement section of the policy would score a paltry 60% in rating because of the above deficiency. Overall, every other aspect has been addressed satisfactorily. The section has embraced conciseness and brevity because too lengthy policies are unattractive.
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Clause 13.11 is not clear when it says, “A managed/negotiated risk agreement shall not be used to supersede any requirements of these regulations.” This is because there is nothing in the entire policy that would safeguard the resident from health detriments where a negotiated risk agreement is manipulated to either the facility or the family’s favor. Clause 13.12 particularly leaves the resident vulnerable to manipulation because it refers to the resident’s rights at clause 14 that are largely vague. The latter clause contains only two sub-clauses relating to the rights to privacy. When the privacy is limited to “door that locks, consistent with the safety needs of the resident,” one can see that the policy disregards the broader meaning or privacy. Today, for instance, aspects such as CCTV coverage are deemed violations of privacy but some facilities still insert such cameras in residents’ rooms.
The service agreement section would sound better if more light were shed upon the managed/negotiated agreement provision. Firstly, the essence of such an agreement should come out clearly. Secondly, there should be a provision detailing how the resident, family and facility will benefit from a negotiated agreement. Thirdly, the section should clarify what types of risks are involved in the negotiated agreement. Apart from the negotiated agreement, the contents of the service agreement under 13.2 should be expanded to accommodate a number of possibilities. For example, there is no provision for guides to the blind at a time when interpreters have been provided for the deaf. Furthermore, there is the need to provide for visitation and the kinds of gifts that can be brought to a resident. Not anyone should be allowed to visit a resident because this would expose him or her to dangers beyond the facility’s control.
Perhaps Delaware should endeavor to update its policy periodically. Policies are always not cast in stone, and there should be room for review whenever there circumstances dictate so. Technology, for instance, has brought significant implications on what privacy entails. How and who residents communicate to have become important factors to consider when drafting policies for assisted living. On the other hand, resident autonomy has expanded a great deal to the extent that the Delaware policy should reflect new accommodations in its service agreement section. Most importantly, autonomy should not hamper the health of the resident, which balance could be difficult to strike.
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- Anderson, Jeff, “How to check for assisted living violations” (A Place for Mom, 19 November 2015), http://www.aplaceformom.com/blog/checking-assisted-living-violations-07-26-2013/
- Mollica, Robert L., “Assisted living policy and regulation: State survey,” (U.S. Department of Health and Human Services, 1995), https://aspe.hhs.gov/basic-report/assisted-living-policy-and-regulation-state-survey
- Texas Health and Human Services, “LS-ALF, Subchapter C, Standards for Licensure,” https://hhs.texas.gov/laws-regulations/handbooks/licensing-standards-assisted-living-facilities-handbook/ls-alf-subchapter-c-standards-licensure