One of the primary reasons an older adult chooses to move to a life plan community (also known as a continuing care retirement community) is the security of knowing one can access a higher level of care — be it assisted living, memory care or skilled nursing — on the same campus should care needs become more pronounced during the remainder of his or her life. The residency agreement entered into with the community ensures that the community will offer that level of care and arrange for the resident’s transition when the need arises.

As predicted, over time, the resident may require assistance with activities of daily living or continuous nursing supervision. Following an assessment of the resident’s functional status and care needs, the community’s medical director, in consultation with the resident and the resident’s physician, may determine that the resident needs to be moved to assisted living or skilled nursing, where his or her care needs can be met. Consistent with the residency agreement, the community duly notifies the resident of the determination and need to transfer, along with steps required to effect the transition.

Over that same time frame, however, the resident often will become attached to the particular independent living unit where he or she lives and come to view the unit, as much as the community, as his or her “home.” Many residents, when faced with the prospect of transferring, will resist.

To avoid transfer, residents may hire personal care or home health aides to assist with ADLs, medications and the like in their IL units. The resident, with the support of family members and a personal physician, may challenge the medical necessity of the transfer.

Sometimes with a lawyer’s aid, the resident may assert tenant rights to continued IL residency and characterize the required transfer as an eviction, with all of the protections afforded under landlord-tenant law. The resident similarly may claim that the community’s refusal to allow the resident to hire health professionals and remain in IL constitutes disability discrimination.

At the same time, the liability risks to the community increase while the resident remains in IL, particularly given that the community already has determined that he or she no longer is safe there.

How can a community mitigate those risks? Here are 10 ways.

  1. Underscore during the admissions process the necessity of transfers when care needs change. Before the resident moves into the community, the community needs to emphasize the importance of timely level-of-care transfers to the success of the CCRC model and the value they offer to residents.
  2. Highlight to the resident that level-of-care transfers are not evictions, but part of the continuum of care within the community.
  3. Highlight the community’s authority to require transfers, and the binding effect of the medical director’s determination, in the residency agreement. Make sure you review this provision with the resident before the resident’s signing; you may consider having the resident initial that paragraph of the agreement.
  4. Consistently enforce policies requiring level-of-care transfers in accordance with the residency agreement. If it becomes commonplace to allow residents to remain in IL, then it will be difficult to convince them of the necessity to transfer when others have not.
  5. Acclimate residents, and when possible, family members, to floors and units providing assisted living and skilled nursing, during the resident’s IL residency. IL residents should not be shielded from AL and the nursing home until the need for a transfer arises. Consider activities or other reasons to give IL residents some exposure to those areas of the campus.
  6. Acclimate and communicate regularly with the family and the personal physician as the resident’s health status declines, preparing them for the anticipated transfer.
  7. Document all of the above communications.
  8. Document all efforts to secure resident and family cooperation in the transfer. This step is crucial to preempt allegations later that the community had failed to timely effect a transfer, should the resident suffer a health setback while in IL.
  9. Insulate all levels-of-care transfer decisions from any financial considerations for the community, such as differential fees. You want to blunt any claim that the required transfer is improperly motivated.
  10. Don’t allow issues and required transfers to fester. With the passage of time, the resident’s needs likely will become even more pronounced while the resident’s resistance to transfer only hardens.

These recommendations, if implemented, won’t prevent all differences, or “disconnects,” over level-of-care transfers from arising. The measures, however, should help minimize their frequency and legal consequences to the community.