Most people have heard the term “assisted living” and know someone who has lived in an assisted living community. While the term has become commonplace, the assisted living industry is a relatively new one. The first assisted living communities opened in the mid-1980s and, since then, the assisted living industry has grown rapidly.
Because the Assisted Living (“AL”) industry developed in the shadow of the Nursing Home Reform Act of 1987 (“NHRA”), AL industry leaders were intent on distinguishing AL communities from nursing homes. Initially, AL communities were intended as a housing option for relatively “well” seniors who did not require skilled nursing care. As a result, the larger AL communities often resembled hotels and high-end apartment buildings and promised a more home-like environment with a focus on amenities and services rather than care. Over time, however, the seniors living in AL communities developed greater care needs and AL facilities expanded the scope of their services in order to meet those needs. As they expanded their care services, AL communities also began admitting residents whose care needs were greater than the first generation of AL residents. While AL communities continue to provide a more home-like and, in many cases, luxurious environment than traditional skilled nursing facilities, they now house residents with greater care needs and more complicated health concerns than AL residents in decades past.
While initially unregulated, as the AL industry grew, states began establishing regulations for their operation. As a result, ALs in different states are regulated by different state agencies and, quite significantly, are regulated to very different extents. For example, in many states, AL regulations are promulgated by the state’s Department of Health and include robust requirements in the areas of physical plant maintenance and staffing, among many others.
In Massachusetts, AL regulations are promulgated by the Executive Office of Elder Affairs and are far from robust compared with other states. Having worked as the Executive Director of AL communities in several states other than MA prior to attending law school, when I first reviewed the MA AL statutes and corresponding regulations, I first wondered, “Where are the rest of them?” followed by, “Is this really it?” In fact, this really is it. While MA regulates many things more heavily than other states (annual vehicle inspections immediately come to mind) it has largely left the AL industry to develop as it sees fit with industry leaders loudly declaring that AL communities are not nursing homes or mere apartment buildings while failing to provide a clear vision of what AL communities are. And, unfortunately, because applicable MA statutes and regulations are so vague, it is hard to turn to them for clarity.
In light of EOEA’s, frankly, flimsy regulations and the ongoing identity crisis that MA AL communities seem to be experiencing, it is not surprising that questions have arisen regarding what protections, if any, are afforded to MA AL residents. In recent years, these questions have focused on whether MA AL residents, who are clearly not protected to the same extent as MA nursing home residents, are protected under MA landlord tenant law. These questions are now working their way through the Courts with different Judges offering different opinions and a definitive answer yet to come.
These cases have focused upon whether an AL community can legally charge a new resident a “community fee” at the time of move-in. While charging community fees is standard AL practice in MA and beyond, and while AL sales staff usually explain to prospective residents that this fee will, in part, pay for upkeep of community common areas, if MA AL residents are protected under MA landlord tenant law, then charging an community fee violates Section 15B, the security deposit provision of the statute. In Hennessy v. Brookdale Senior Living Communities, Inc. et al., and Gowen v. Benchmark Senior Living LLC, for example, Judge Kenneth W. Salinger holds that landlord tenant law does apply to MA AL communities and that collecting community fees is a violation of that law. In contrast, Judge Christopher Barry-Smith in Ryan V. Mary Ann Morse Healthcare Corp., held that MA AL communities only need to comply with the section of landlord tenant law specifically outlined in the statute, namely, provisions surrounding evictions, a holding that Judge Sallinger respectfully disagrees with in Hennessy.
While these cases are working their way through the Appeals process, it remains unclear whether MA AL residents are protected under landlord tenant law. To those of us who work with AL residents and advocate on their behalf, however, it is abundantly clear that MA AL residents deserve greater protections than they are afforded under the statutes and regulations now in effect. We look forward to seeing whether these protections will come from a binding Court decision or, perhaps, through the adoption of more protective AL statutes and regulations in the years to come.
— Attorney Lora Zommer
 See National Center for Assisted Living, 2017 Assisted Living State Regulatory Review available at https://www.ahcancal.org/ncal/advocacy/regs/Documents/2017_reg_review.pdf.
 M.G.L. ch. 19D
 651 CMR 12.00
 M.G.L. ch. 186 § 15B