When is it required to discharge a resident from an Assisted Living Residence (ALR) in Colorado?

Discharging a resident from assisted living is difficult on the resident, their family, and the assisted living staff. It is a sensitive matter requiring careful handling.

The assisted living residence shall accept only those persons In addition to its complexity, the situation has become even more confusing following the regulatory changes made in November 2023 by the Colorado Department of Public Health and Environment (CDPHE) regarding how discharges are managed.

whose needs can be fully met by the existing staff, physical environment, and services already being provided. The assisted living residence's ability to meet resident needs shall be based upon a comprehensive pre-admission assessment of a resident's physical, mental, and social needs; cultural, religious and activity needs; preferences; and capacity for self-care.

6 CCR 1011-1, Chapter 7, Section 11.1.

Thus, the analysis for determining when a resident should be discharged is based upon the move-in regulations:

An assisted living resident is not allowed to move in any person that meets any of the following characteristics:

a.     The resident requires regular 24-hour medical or nursing care;

b.     The resident is incapable of self-administration of medication and the assisted living residence does not have staff who are either licensed or qualified under 6 CCR 1011-1, Chapter 24 to administer medications;

c.     The resident has an acute physical illness that cannot be managed through medication or prescribed therapy, and that needs hospitalization or specialized care. Examples of such illnesses are infections, wounds, organ failures, or other serious conditions.

d.     The resident has physical limitations that restrict mobility, and that cannot be compensated for by available auxiliary aids or intermittent staff assistance. Examples of such limitations are paralysis, severe arthritis, or other disabilities that prevent the resident from moving around safely and independently.

e.     The resident has incontinence issues that cannot be managed by the resident or staff, and that cause skin breakdown, infection, or odor problems, and that require constant changing or cleaning.

f.      The resident is profoundly disoriented to time, person, and place with safety concerns that require a secure environment and the residence does not provide a secure environment. Examples of such safety concerns are wandering, eloping, or getting lost, and posing a risk of injury or harm to themselves or others. A secure environment is one that has locked doors, alarms, fences, or other features that prevent unauthorized exit or entry. The regulations controlling secure environments are in 6 CCR 1011-1, Chapter 7, Section 25.

g.     The resident has a stage 3 or stage 4 pressure sore. A pressure sore, also known as a bed sore or ulcer, is a wound that develops when the skin and underlying tissue are damaged by prolonged pressure. A stage 3 pressure sore involves full-thickness skin loss with damage to the subcutaneous tissue. A stage 4 pressure sore involves full-thickness skin and tissue loss with exposure of bone, muscle, or tendon. These are serious and potentially life-threatening conditions that need intensive medical treatment and wound care.

h.     The resident has a history of conduct that has been disclosed to the assisted living residence that would pose a danger to the resident or others, unless the ALR reasonably believes that the conduct can be managed through therapeutic approaches. Examples of such conduct are aggression, violence, abuse, or suicide attempts, and that cannot be calmed or redirected by the staff or by behavioral interventions.

i.      The resident needs restraints, of any kind, including chemical restraints, except as statutorily allowed for assisted living residences which are certified to provide services specifically for the mentally ill.

If the residence determines that a resident meets any of these criteria, they must notify the resident and their representative, issue the necessary written 30 day discharge notice, contact the local Ombudsman and CDPHE, and work with the resident and their representatives to arrange for a safe and appropriate discharge plan.

Determining the legal grounds for discharging a resident from an assisted living facility becomes particularly complex when a resident starts to exhibit aggressive or violent behaviors, creating risks for themselves or others. Families often face severe challenges managing such behaviors and may place the resident in a facility because they can no longer cope at home. Sometimes, they may even omit details about the resident's aggressive behavior to secure their admission. Adding to the complexity is determining when all therapeutic measures have been adequately explored. It is often under these circumstances that assisted living residences seek our assistance.

The information herein is intended to be educational and an introduction to the subject matter presented. It is NOT specific legal advice to be relied upon for specific individual circumstances. Contact your own legal professional or reach out to our firm if you would like specific advice on this topic.

Look for additional blog posts on topics of interest related to assisted living and group homes. We welcome topic suggestions! Write to brian@pinkowskilaw.com if you are curious to learn more about a certain topic impacting assisted living or other group housing concerns.