The assisted living industry is very content with its state-by-state regulatory system, but a string of recent and upcoming events have escalated concerns of increased federal scrutiny that could bring unwelcome regulatory changes.
“Five years ago, I would have said we will never have oversight at a federal level,” said Maribeth Bersani, senior vice president of policy at the Assisted Living Federation during the trade group’s annual conference and expo in May. “Now, while I still think it would be a long shot, we’d be crazy if we didn’t start [considering] the handwriting on the wall.”
When members of Congress repeatedly see negative coverage of assisted living, she says, it can compel them to take action and introduce federal oversight legislation.
“We really need to be as vigilant as ever in doing grassroots advocacy, because if we don’t we really could go the way of the nursing home,” said Bersani. “Some bad stories about nursing homes is part of the reason it [came under] federal oversight.”
There have already been a couple instances of knee-jerk legislative reactions to isolated senior living incidents that received national attention.
For example, New York and California both introduced reactive legislation in the wake of the Brookdale incident in March when an independent living staffer refused CPR to an ailing resident who later passed away.
“A number of states have introduced legislation saying a company cannot tell their staff not to initiate CPR,” Bersani said during the session.
The incident also inspired an upcoming PBS Frontline story that’s scheduled to air in the middle of July, which Bersani called a “down and dirty” story on assisted living.
The segment is expected to portray the senior living industry as focusing on profits over people and includes interviews with “disgruntled employees” and families who have initiated lawsuits following some tragic events, according to Bersani.
“We expect the PBS piece to generate something on the Hill,” she says. “The story is not balanced—there are some bad things that happened, but there are also companies that have tried to make improvements to their systems or policies” to prevent those things from happening again.
During the firestorm of media coverage sparked by what happened at the Brookdale-operated independent living community, ALFA’s policy team made the rounds with news outlets educating the public about the different levels of senior living and care and providing background and information.
That won’t necessarily be enough.
“We did everything we needed to do, but it aggregates,” Bersani says. “Eventually, with enough [negative] front-page stories, [Congress] will say, ‘We need to take a look.’ It’s only a matter of time.”
As an example of when federal oversight of assisted living goes awry, Jackie Kerin, a public policy associate at ALFA, gave an overview of recent guidance from the Equal Employment Opportunity Commission (EEOC) that preempts—and clashes with—existing state regulations regarding criminal background checks for prospective employees.
The new guidance forbids employers from allowing information from criminal background checks to automatically disqualify someone from employment. Instead, all employers are required to conduct individualized assessments for each applicant allowing them to explain the nature of their offense, provide an explanation, or tell the facts and circumstances surrounding the case.
There is confusion in how to interpret the guidance in senior living settings, says Jackie Kerin, public policy associate at ALFA. State regulations for assisted living communities in many states incorporate “barrier crimes” into employee screening processes preventing applicants from obtaining a job if they’ve been convicted of certain crimes.
“We want clarification on this [new guidance],” Kerin says. “The EEOC was probably not considering our industry specifically, and didn’t see this discrepancy as far as state laws and regulations [that leaves providers] stuck between a rock and a hard place.”
ALFA is advising providers to talk with their legal counsel on how to proceed, but suggests sticking with state laws and regulations that address senior living employment standards for the time being. “Just know this is out there,” Kerin says, “and be prepared if something does develop.”
“Good, strong state regulations and laws will really prevent federal oversight,” Bersani says. “That’s the challenge to all of you: make sure your state has good regulations. That will go a long way.”
Written by Alyssa Gerace