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Why not apply Federal Regulations to Assisted Living?

When the lights go on – much becomes visible. Warning – rant on. I have to ask, what do you think is the biggest fear of the Assisted Living industry? Is it PBS and documentaries about their industry?  No, many have rationalized their own organizations or will be contemplating new ways to manage bad publicity and thus prepared, they moved on. Lawsuits? They are certainly an issue – and cost time and potentially substantial amount of money. But risk managers and lawyers are around to help avert through policy and procedures, training, etc.  No – the real and pervasive fear of the industry is federal regulation. And how hard they work to avoid it at all and enormous cost – lobbying is vigilant and continuous to ensure that the industry remains within the regulatory (and wildly varying) domains of the states.

Nursing homes have replaced smaller long-term care populations with new offerings.  Over the twenty years since Assisted Living became popular, families who could afford to do so began to select assisted living over regulated and much-maligned nursing homes – remember that quote about seniors -- they "fear nursing homes worse than death" from a Clarity study in 2007?  That survey was quoted just this past month! So if there had been a marketing campaign to make nursing homes seem like purgatory, the campaign was a success.  And dropping Medicaid enrollment of seniors and growing nursing home servicing of Medicare and rehab populations have also contributed to the decline in nursing homes’ long-term care population.

But federal nursing home regulations could protect residents in Assisted Living.  So let’s look at the list of federal regulations that nursing homes must meet. From having sufficient staff – and posting the number of staff per shift in a visible place, ensuring that residents do not develop pressure sores, to maintaining dignity and respect of each resident, to assuring that residents receive appropriate assistive devices to maintain vision and hearing abilities, and so on – the list looks like a good start -- it is resident-centered and promotes safe care of a frail population -- the profile of the assisted living resident. Of course when nursing homes are not meeting the letter or intent of a particular item, there is always an elder law attorney ready and waiting – perhaps the same firm that also helps seniors manage assets appropriately to qualify in the future for Medicaid (the primary payer for 63% of nursing home residents). 

What is the fear message from the Assisted Living industry about regulation?  Read the 'Consumer Protection' page on the ALFA website: "You should be aware that some lobbying groups have pushed for federal oversight of assisted living.  Such federal-level control would saddle assisted living with prescriptive, institutionalized regulations that have been the hallmark of the nursing home industry." Prescriptive and institutionalized, eh?  "Forcing federal regulations on assisted living would remove the focus on choice and independence that defines the industry."  Ah, that focus on choice and independence – those are strong words to use as 'defining an industry.'  But behind them are a range of definitions and a potpourri of state regulations, not to mention a decline in numbers of regulators/inspectors as a result of dwindling state budgets -- such that some providers are looking elsewhere for certifications. But do federal regulations properly protect seniors from poor nursing home care?  Not necessarily. But for the Assisted Living industry – given the rising age of residents, their growing frailty, the PBS investigation and results, not to mention a litany of other incidents across the country -- doesn’t that list seem like a good start?  Rant off.


Excellent food for thought as always, Laurie. Thank you for using your platform to bring these issues to light!

Great summary, Laurie. This is a huge issue. In following with the Gretzky adage "Skate not to where the puck is but where it is going", it is hard to imagine that increasing age, acuity/medical complexity, % of dementia within AL will reverse itself. It will only get more complicated to run these communities. Therefore, AL needs to more rigorously police itself and encourage sharing of operational and outcomes data to prove its effectiveness. (And, along the way use aging-in-place tech to be more efficient.) If not, I fear that regulation will be inevitable and it will create a cost and flexibility burden on the product class.

Some limited federal regulations may be required, if only because forcing nursing homes to do the right thing is the only alternative available. The common sense approach to improving assisted living/nursing home care/Alzheimer care is to stop thinking we in the U.S. have all the answers. Not only think out of the box, but LOOK out of the box. Look to other countries such Germany and the Sweden to see what they are doing differently, more efficiently and see if it could be transplanted here.

Many people think of nursing homes vs. assisted living as an either/or choice of living options if they are no longer able to live alone. Nursing homes are intended as short-term acute rehab or for those bedridden with serious illnesses. Medicare does not pay for long-term custodial care, and the cost of paying privately for nursing home care is extremely expensive, mostly due to all the bureaucracy and regulations, not because the care and attention is superior.

Many, many people fall or develop bed sores or infections in nursing homes. Many others are not able to regain their strength because they lay in bed all day. Patients who are not incontinent are put in diapers because they do not want them walking to the restroom alone. Patients who need help with eating are given feeding tubes instead of having a staff member take time to patiently feed them. For many patients, nursing homes are not a place to get better nor to enhance quality of life.

Adding nursing home style federal regulations to assisted living would likely not improve the quality of care overall, but would drive up the cost. We would have many more seniors living unsafely on their own or with overwhelmed family members who are often ill-equipped to provide the care and socialization they need. There are no easy answers and no perfect solutions because of the increased risks associated with getting old. Regulations and attorneys and fines can't change the fact that none of us will live forever and the more frail and confused we get, the higher the risk of something going wrong, even with the best care.


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