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.