Resident rights in Michigan’s long-term care system, by facility type
At first, Dakima Jackson wanted to be a dentist. But, to support herself while studying, she got a job at an adult foster care home, and quickly “fell in love with working with seniors.”
She changed career paths, and for her next job, moved to another type of facility: a nursing home.
“Working at the nursing home, I was … just eager to spread myself around,” she said. “I decided that I would work at assisted living as well, because I wanted to know the difference.”
During the week she clocked into the nursing home. Weekends she spent at the assisted living facility.
She found the difference to be pretty big. The assisted living facility had fewer rules, and no staffing requirements. As activities manager, Jackson organized events that wouldn’t fly at the nursing home, like happy hours for the residents.
Jackson learned that many of the differences had to do with licensing; whether a facility is licensed or not determines how it’s regulated. As she worked with more families and residents, Jackson found that many weren’t aware of those distinctions.
“Folks who are in unlicensed assisted living, a lot of times they think that they are a licensed entity,” she said.
Those differences are important. They dictate a resident’s rights, and how their loved ones can advocate for them. Families should understand them — especially now, when nursing home residents, a population of nearly 31,000, make up more than a quarter of COVID-19 deaths in Michigan, according to the state health department.
Including data from adult foster care and homes for the aged, long-term care residents make up almost 35% of deaths in Michigan, and that’s without all facilities reporting.
Here’s a look at the three main categories of senior care in Michigan.
Category 1: Skilled nursing
Skilled nursing facilities, or nursing homes, are the most regulated of long-term care facilities, and provide the highest level of care. As recipients of Medicare and Medicaid dollars, they’re certified by the federal Centers for Medicare and Medicaid Services, or CMS.
One reason there’s more COVID-related data available about nursing homes than other long-term care facilities is that, since the spring, they’ve been required to comply with certain reporting requirements from CMS.
Nursing homes are also regulated by state law. A facility receives a state license from the Department of Licensing and Regulatory Affairs (LARA), which has authority to conduct inspections as a state agency, and on behalf of CMS.
Category 2: Adult foster care and homes for the aged
The second category, also licensed by the state, includes adult foster care facilities (AFCs) and homes for the aged (HFAs). Like nursing homes, these facilities must meet state licensing requirements for the care they provide.
Homes for the aged provide continuous “supervised personal care” to adults older than 55, according to Michigan’s public health code. Adult foster care facilities, sometimes referred to as group homes, can be much smaller and provide care to any adult who needs continuous support.
LARA does not track the number of residents in these facilities, but it does track the number of beds: 34,536 in adult foster care, and 23,023 in homes for the aged.
These facilities are not licensed by any federal entity, and the state protections are “significantly more limited,” says Alison Hirschel, managing attorney for the Michigan Elder Justice Initiative. For example, a nursing home resident has a right to appeal an eviction, but a resident in adult foster care does not.
They can file a complaint,” Hirschel said. “But basically, once they get their 30-day notice, they're almost certainly going to have to leave.”
That complaint — and other complaints — would go to LARA, and one resource helping people raise their complaints is the Michigan Long Term Care Ombudsman program, which is where Dakima Jackson now works.
As an assistant state long-term care ombudsman, she can help an AFC or HFA resident file a complaint with LARA.
In cases of physical abuse, financial exploitation, or guardianship issues, LARA has authority to send in a surveyor for an unannounced visit.
The state ombudsman’s number, which will forward you to your local ombudsman, is 1-866-485-9393.
Category 3: Unlicensed assisted living
While many advocates say protections at HFAs and AFCs aren’t enough, rights there are stronger than in the third category: unlicensed long-term care facilities.
“I mean, really, if you're in an unlicensed facility, the only rights you have are in your admissions contract and to the extent you can take advantage of it, landlord-tenant law,” said Hirschel.
Cindy Minnema of Grand Rapids believes there shouldn’t be “an option to be unlicensed."
"I don’t understand how that can even happen, especially with what we've lived through," she said.
Until October, Minnema’s husband Hank was living at the unlicensed Addington Place at East Paris, in Grand Rapids, which is part of a campus that includes other facilities, most of which are licensed.
Hank was a paramedic who often kept stories from the work day to himself. In his late 40s, he started losing sleep. He became withdrawn. He started failing basic tasks, and lost his job.
“It was like he was stone cold, like he didn't have a care for anybody,” Minnema said. “Very much, like, not within our world.”
At 52, Hank was diagnosed with Alzheimer’s, and in 2019 he moved into Addington Place. Considered “independent living” — which, like “assisted living,” has no clear legal definition in Michigan — the facility would provide meals, weekly housekeeping, and allow Hank to come and go as he pleased.
As his primary caregiver, Minnema would arrange for any extra care Hank needed. Minnema says the room cleaning was spotty, and that when COVID hit, it stopped altogether.
She called the local ombudsman, Kaye Scholle, who said her hands were tied. Because the facility was unlicensed, she couldn’t ask LARA to investigate.
Minnema took matters into her own hands. Often she would show up unannounced, and says she hired an outside cleaning service and snuck them into Hank’s room. Given COVID, this was against Addington Place’s policy — and the state’s. She says they stopped letting her in.
In October, Minnema moved Hank into a regular apartment. He was a mess.
“He had not bathed or changed his clothes in I don't know how long,” she said. “I cut his clothes off and I had his paramedic's scissors. I cut them off. I got him in the shower.”
In a written statement, Addington Place said it’s “critically important” to determine “the appropriate level of care when selecting a senior care provider,” and that a resident’s family should “collaborate” with the facility to make that decision.
It continues: “At Addington Place at East Paris there have been occasional and temporary disruptions in normal resident services during the ongoing pandemic as we have made adjustments with a total focus on the health and safety of our residents to follow state and local health directives and establish our own protocols to limit, as much as possible, any spread of the virus in our community.”
Minnema knew, when she signed the contract, that the home was unlicensed. She just didn’t know that would make sticking up for her husband so difficult.
In a 2015 report, LARA officials stated that “More and more providers are under the belief that licensure is an option and not a requirement as long as they do not directly offer all the services requiring licensure.” The report added that the Attorney General’s office would be its partner in addressing that issue.
The Elder Abuse Task Force, formed in 2019 and a collaboration between the Attorney General’s office and the Michigan Supreme Court, has begun that process.
Scott Teter, who leads both the task force and the attorney general’s financial crimes division, says the group is reviewing the law around all types of long-term care facilities, developing a “snapshot” of the “continuum of long-term care.”
“As soon as you start to assemble the definitions, you realize the problem,” he said. “And that is, the system is just really disjointed, and the people believe certain things that just aren't accurate, that aren't true about the level of care that somebody is going to provide.”
By identifying gaps in the law, the task force hopes to inform lobbying efforts in Lansing and consumer education campaigns. With the support of lawmakers, it’s already helped introduce some bills that address elder abuse.
The state’s long-term care law won’t be reformed by the end of the pandemic, but according to the Attorney General’s spokesperson Kelly Rossman-McKinney, the task force’s work could result in more legislation being introduced as early as January.