Assisted living: on the slippery slope to regulation? – View On Washington – Industry Overview
Michael J. Stoil
On April 16, the Senate Special Committee on Aging held a one-day hearing on the progress of the Assisted Living Workgroup established at its request by providers and self-proclaimed consumer advocates. The workgroup’s facilitator, Larry Minnix, D.Min., president and CEO of the American Association of Homes and Services for the Aging (AAHSA), reported significant accomplishments since the group’s first meeting last August. It would appear that the workgroup is on schedule to present the committee with a final report and recommendations early next year.
Beneath this image of cooperation and collaboration between providers and critics of assisted living, however, is a yawning chasm of disagreement over the workgroup’s ultimate goal. The Consumer Consortium on Assisted Living (CCAL) and its allies believe that the absence of federal regulation for assisted living places residents and their family members at risk. Assisted living providers and their allies maintain that there is no justification for federal interference in the private, state-regulated contacts between assisted living facilities and residents. The fundamental difference between the two groups is over the practical and philosophical issues involved in whether federal standards and regulations help or harm consumer access to quality care.
This is not the same issue as federal regulation of skilled nursing facilities. Most nursing home care is financed, at least in part, by federal Medicare, Medicaid or veterans’ funds. Federal regulation of nursing homes has been justified by the fact that federal taxpayers are paying for services received by most residents; therefore, the federal government has a legitimate reason for investigating, auditing and regulating the quality of care that it is purchasing.
There is scant such justification at the assisted living level. The federal government contributes relatively little to financing the field and, moreover, CCAL Cochair Karen Love does not even suggest that the main purpose of regulation is to prevent federal tax money from being wasted. Instead, she argues that federal regulation is needed to protect families from making decisions based on glossy marketing brochures and other “misleading” practices. “CCAL has found that some marketing literature continues to be misleading, such as showing pictures of staff in lab coats with stethoscopes when, in fact, the facility does not provide healthcare…,” she explains.
The fact that all states regulate or license assisted living facilities to some extent doesn’t answer CCAL’s concerns, because “the regulatory variances among states are vast…. The patchwork state regulatory approach is extremely confusing to those with expertise in the assisted living field. Imagine the difficulty faced by consumers who typically must make their placement decisions in the midst of personal crisis.” CCAL further notes that some state regulations use such limited definitions of assisted living that facilities can operate without licenses.
In fact, the term “assisted living” does not appear in the official regulatory lexicon of many states; in Michigan, for example, assisted living facilities are grouped with board-and-care facilities as “homes for the aging.” If nothing else, a federal definition would help determine the eligibility of specific facilities for grants and other benefits that legislation already makes available to specifically designated assisted living programs. The Assisted Living Workgroup has achieved consensus on the need for a standard definition of assisted living and, in February, approved a draft definition that presumably the federal government could adopt:
A congregate residential setting that provides or coordinates personal services and care, 24-hour on-site support services and assistance (scheduled and unscheduled) and health-related services by qualified individuals. It is designed to minimize the need to move (as disclosed); accommodate individual residents’ changing needs and preferences; protect residents’ rights; maximize residents’ dignity, autonomy, privacy, independence, choice, quality of life, and quality of care; and encourage family and community involvement.
The use of such phrases as “provides or coordinates” and “designed to” would indicate that the definition itself would be unlikely to place assisted living facilities at legal risk for failing to achieve any of these “mom-and-apple-pie” objectives.
The same is not true, however, for the next phase of the Assisted Living Workgroup’s activities, which will address best practices and guidelines for state regulations and federal policy. With the Centers for Medicare and Medicaid Services and other federal regulatory agencies moving toward “outcome-based” quality measures, the recommendations that the Assisted Living Workgroup might make to the Senate Special Committee on Aging could open the door to legal penalties against facilities that meet the broad “assisted living” definition. Even if state regulations remain unchanged, lawyers for residents and family members could conceivably argue that the Assisted Living Workgroup’s guidelines establish a “national consensus” on the level of care or supervision that should be provided by facilities. According to one industry analyst, this situation could prove to be worse for the assisted living industry than actual federal regulation, because it could give individual courts the opportunity to decide what the gui delines mean and how they should be applied.
The representatives of the assisted living providers on the Assisted Living Workgroup are aware of these implications and are trying hard to ensure that the contracts between residents and facilities remain the basis for the required levels of care and supervision. In their view, CCAL’s issue of diverse state regulations is not relevant to most consumers, because families are unlikely to even consider assisted living facilities located outside the prospective resident’s home state. How Michigan and Maine regulate or fail to regulate assisted living is not particularly significant to a family looking to find a home for an elderly resident of Florida or Arizona. Similarly, the absence of state standards for the care of severe Alzheimer’s in assisted living facilities is not much of a problem for institutions that require severely impaired residents to move to a SNF.
Nevertheless, leaders of the assisted living industry are resigned to the inevitability of some type of guidelines resulting from the consultations among the members of the Assisted Living Workgroup. Guidelines that address marketing materials might even be welcome to restrain unethical practices in competing for new residents. According to AAHSA’s Minnix, the problem is that no one really knows how the Senate Special Committee on Aging will use any recommended guidelines.
The recent hiring of veteran anti-regulation warrior Paul Willging, PhD, as director of the Assisted Living Federation of America signals an intention by the industry to dig in against federally enforced quality of care. Willging has long insisted that the appropriate role for assisted living guidelines is to help state legislators and administrative agencies implement their own quality initiatives rather than serve as broad standards of care. The question is whether in the long run this will matter. The continued participation of the long-term care industry in the Assisted Living Workgroup might be contributing to a future in which “best practices” become enshrined as minimum standards, enforceable by law.
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