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Who Should Regulate?By Elizabeth Maier-Osborn
According to a recent Congressional Report Service (CRS) there are 33,000 licensed assisted-living facilities and 800,000 beds nationally in a multibillion-dollar industry. Accompanying this boom are allegations of substandard care, neglect, and in some cases, preventable death. These allegations, phenomenal growth and a lack of federal regulations are why the U.S. Congress has taken a close look at assisted living by holding two full-scale hearings in the last couple years. In 1999, before the U.S. Senate Committee on Aging, the industry argued that federal oversight would stifle this growth. Senators called for self-policing of the industry. In April of 2001, this same committee suggested the federal government should step in to address continuing concerns of quality. The most recent Department of Health and Human Services (HHS) report shows 32 percent of assisted-living residents had been hospitalized during 2000. In addition, the report indicated most assisted-living staff does not have a basic understanding of the aging process. These statistics may have contributed to the committee's change in opinion. Growth Patterns While the growth patterns in the nursing-home and assisted-living industry may be similar, the underlying causes of that growth are different. Nursing-home growth was stimulated, to a large degree, by the introduction of governmental reimbursement in 1965. Through the sixties and seventies, complex regulatory standards were developed to address perceived quality problems in nursing homes. During the seventies and eighties, in response to wide variations in compliance with these standards, the 1987 Omnibus Budget Reconciliation Act became law. The process by which this 1987 law is enforced is still shifting, and despite this heavily regulated atmosphere, the nursing-home industry is in a crisis of proportions not seen before and the predicament appears to be escalating. Assisted living's growth, on the other hand, reflects the unmet demand for housing and services among consumers who are looking for more independence and autonomy than a nursing home. The oversight of assisted living is different from nursing homes, which operate within detailed rules and regulations in order to receive the federal funds that account for most of their revenue. ALFs receive some revenue from government reimbursement, but residents pay most of the revenue. There are state regulations but no federal-mandated regulations or licensing and no universally-accepted system for measuring quality of care. Differing Opinions Karen Love, co-chair of the Consumer Consortium of Assisted Living (CCAL), a national consumer advocacy group, said her organization receives about 250 calls a month from consumers having problems or disputes with assisted-living facilities on issues of cost, medication errors or an unexpected discharge of a relative. "Until some national safeguards are put into place, the only way to avoid such problems is to spend considerable time and energy researching the quality of a particular facility," Love says. The issue of whether or not to regulate ALFs has become less clear as external forces have exacerbated the difficulty in delivering the quality of care consumers demand. The most common reason given for inadequacies is a reduction in government reimbursement and staffing shortages. Less revenue and a shrinking labor force has resulted in an increasing number of complaints and lawsuits by consumers. In this litigious environment, the dilemma of care has been compounded by the trend for juries to award larger amounts of money and, in turn, liability insurance premiums have reached unprecedented levels causing some nursing homes and ALFs to file for bankruptcy or close their doors. "The fear of replicating nursing homes has created the assisted-living industry to build around wanting not to look like nursing homes," Love explains. "This is isn't a healthy approach either." Robert Lohr, president of the National Center of Assisted Living, doesn't agree. "We know too well the many problems and conflicts in the federal and state regulation of nursing homes. It would be a mistake to burden assisted living with a similar system that doesn't work." One Doesn't Look Like the Other Variations in assisted-living communities create nightmares for the overseer. Some facilities are luxurious, high-rise dwellings, others are modest facilities for memory-impaired residents, and some are small businesses set up in residential homes. Assisted-living care can be "minimal hands-on assistance to someone in their own apartment, or someone who may not be ambulatory, is cognitively impaired, unable to make decisions and has no family to make decisions for him or her," says Scott Gardner, executive director of the Arizona chapter of the Alzheimer's Association. There is no consistency among states. Each state government uses licensure and certification laws to regulate assisted-living communities. By 1992, fewer than 10 states had regulations in place. According to the 2000 American Senior Housing Association (ASHA) report, nearly all states have some requirements, and 20 states have upgraded their laws or introduced new regulation. "Nursing home regulations have gone through a number of iterations over the years," Gardner says. "While there's been improvement, some regulations are questioned even after all these years of different tools and assessment processes." Addressing the Real Issue In the midst of this regulatory confusion, two groups are addressing the need for strategies to ensure quality care and improve consumer knowledge. The Assisted Living Quality Coalition (ALQC), comprised of national consumer and provider groups, is focused on desired outcomes rather than on setting regulations. The CCAL addresses service quality and regulation and has developed a checklist of questions for consumers to ask facilities before any decisions are made. Both are looking to a model statute that would lay out consumer protections and maintain the flexibility the industry needs to be innovative. A national database of consumer information is being addressed. "ALQC is moving away from regulating facilities to regulating services, regulating the level of care that's provided," Gardner says. "The real issue is the care, not the type of facility." Lohr welcomes a congressional role to support research in the development of performance indicators and conduct pilot programs, but advocates leaving regulation at the state level. A Possible Solution Some of the problematic issues facing ALFs may be solved by the abundant supply of facilities built in the past two years. The ASHA estimates a national vacancy rate of 10 percent. This overbuilding may help alleviate some of the problems that were intensified by the uncontained growth in the decade before. Facilities are expected to consolidate and strong players may buy out poorly managed operators. Some troubled facilities are focusing on well-trained staff, quality initiatives and consumer satisfaction. It is paramount owners and operators of assisted living stay informed of certification and regulatory changes and proactively look to the future if they are to endure the dynamics inherent in the long-term-care industry. To remain viable, they must adapt attitudes and services as their consumer-base changes and as baby boomers demand more than their parents and grandparents. Only a relatively small window of time remains for policy makers to modify healthcare and research priorities before the boomers reach retirement age. In 10 years, the first of the nation's baby boomers will begin to collect Medicare and Social Security. By 2030, 75 million boomers will be at least 65 years old, double the number today. The fastest growing segment is those over 85. The expansion of assisted living and its burdensome problems is part of a much larger revolution in the delivery and financing of health and long-term-care. Gardner says, "The future of long-term-care will depend on what answers are found in the roots of our society, how much we value older adults and how much we are willing to spend to properly take care of them." Elizabeth Maier-Osborn is a writer and registered nurse. She has a bachelor's degree in business management and a master's in business administration. She is the former director of Good Samaritan Regional Medical Center's operating room and a former corporate educator with Samaritan Health Service in Phoenix. Maier-Osborn can be contacted at lizwizz@home.com.
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The
assisted-living industry is experiencing a period of phenomenal growth that has
been compared to the expansion of the nursing-home industry in the sixties and
seventies. In the mid 1980s, assisted living was in its infancy, stemming from a
demand for an alternative to nursing-home care.
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