A proposal bashed by senior living advocates is back in the spotlight in Kansas after a state council proposed that assisted living operators give residents 30 days’ notice of involuntary removal and the right of appeal.
A Kansas House committee took up a bill in 2021 creating a right to appeal involuntary discharges or transfers from assisted living communities. Although the bill was supported by consumer groups, AARP Kansas and the state Alzheimer’s Association, senior living advocacy groups argued that the appeal process would force operators to try to deliver levels of treatment that they were unqualified to provide.
The Kansas legislature handed the issue off to the Kansas Judicial Council to conduct a study and issue recommendations. In December, the council delivered a report that found that state law did not outline a process providing residents a process to appeal involuntary transfers or discharges.
The council drafted a standard 30-day notice of involuntary transfer or discharge, and for an emergency involuntary transfer or discharge. The council also urged the Kansas Department for Aging and Disability Services to implement a regulation requiring the notices to include information about a person’s right to appeal.
The standard would apply to assisted living, residential healthcare, home plus (facilities that care for 12 or fewer individuals) and boarding care home facilities.
Linda MowBray, president and CEO of the Kansas Health Care Association / Kansas Center for Assisted Living, told McKnight’s Senior Living that KHCA/KCAL opposes the concept of an appeal process because Kansas regulations allow different communities to offer different levels of care or service.
“By forcing the community to retain or readmit a resident that they can no longer care for is not only against the regulations but the wrong thing to do for the resident, the staff and potentially for the other residents,” MowBray said. A 30-day notice for involuntary discharges, she added, already is a long time to provide extra care and support to someone whose service needs are outside a community’s defined practice.
“It would be irresponsible, with potentially grave consequences, for a community to attempt to care for someone whose needs are clearly outside of the scope of service they can provide,” she said.
MowBray also questioned who would pay for the extra care during the appeal period, and who would be liable if the resident had a negative outcome during the process.
LeadingAge Kansas President and CEO Rachel Monger told McKnight’s Senior Living that the council’s recommendations “insert multiple roadblocks and weeks- to months-long delays to the assisted living discharge process, even in cases of emergency.”
“Forcing an assisted living facility to retain a resident whose needs it cannot meet will seriously endanger the health and safety of residents, sharply increase costs for all assisted living residents, limit admissions, and set up our providers for abuse and neglect lawsuits,” Monger said.
In an effort to balance a resident’s right to due process, health and safety with the community’s licensing and liability obligations, the proposal suggested a liability cap for negligence if a facility didn’t provide services outside the scope of the original service agreement with residents.
The report also lays out requirements for the facility and the resident — or the resident’s legal representative — to discuss the reasons for the impending involuntary transfer or discharge to attempt a resolution. KDADS would have two business days to review each notice.
The council recommendation would increase the amount of information provided in the notice, including the reasons for the transfer or discharge, the facts supporting each reason and any actions taken to avoid the transfer or discharge. Residents would have 15 days to file an appeal, or they could ask the state long-term care ombudsman to file the notice of appeal on their behalf. Residents would be allowed to continue to reside in a facility until the appeal process is complete.
When House Bill 2004, known as Charlie’s Bill, was introduced in 2021, senior living provider groups testified that the bill’s requirements could cause serious harm to both residents and providers that may be ill-equipped to address their needs. LeadingAge Kansas representatives had testified that the legislation did not address the actual source of complaints around assisted living discharge — namely, the lack of consumer awareness and provider transparency regarding the role of assisted living and the limits of care and services.