Old State Laws Present New Problems for Senior Living

As the assisted living sector evolves and grows in popularity, so do consumers’ expectations of what care and services they can expect from this model. Yet state assisted living regulations haven’t uniformly kept up with rising demand.

“My general sense is that [regulations] are falling behind, but it varies widely from state to state,” says Josh Allen, a registered nurse and current chair of the American Assisted Living Nurses Association.

While some states are more progressive with regulatory structures that are “a little more adaptable” and can adjust without needing a complete overhaul, he says, others are about 15 to 20 years behind.

Although assisted living has benefited by its ability to evolve into a variety of models—a freedom that has helped create the single-largest private pay healthcare delivery system in the United States—it still is bound by state regulations that in some cases prohibit what consumers want, says Tim Buchanan, president and CEO of Legend Senior Living, which operates 26 communities in three Midwestern states.

“There are states that prohibit trained healthcare professionals from providing medical aid or any kind of wound treatment, and that’s taking it too far,” says Buchanan. “That’s beyond what the normal person would consider [to be] a common sense approach.”

Archaic Regulations

As perhaps the best of example of outdated regulations, Rhode Island doesn’t allow assisted living employees to apply band-aids to residents. Providers in other states are bound by other restrictive regulations, as well.

In Allen’s home state of California there is a “laundry list” of medical conditions that preclude residence in an assisted living community, he says.

“As healthcare is increasingly delivered in community settings like traditional homes or assisted living residences, the idea that having a certain medical condition means you’re automatically ineligible—even if there’s a good plan of care in place—is certainly not keeping up with consumer demand,” Allen says.

Many other states have “quirky” regulations related to medical care in assisted living settings, especially when it comes to medication management, he continues.

In Louisiana, state-designated “level three” assisted living providers are not allowed by law to administer medication to residents, who must contract with third-party home health agencies if they require these services.

Massachusetts state law prohibits assisted living residents from receiving skilled nursing services at the community unless they’re provided by a third party—even if the community has licensed nurses on staff.

Residents should be able to get the care they require if the community in which they reside is able to provide it and is staffed with licensed healthcare professionals who can deliver a broad range of services, Buchanan says.

But sometimes providers are limited to what he calls “outdated boundaries”—a trend that Allen has noticed as well.

“Regulations were written for a time when we were debating whether or not assisted living was a social model, and they still read that way,” says Allen. “It’s based on an old vision of what assisted living was, as opposed to what consumers want.”

While there typically aren’t too many problems with a would-be assisted living resident’s ability to move into a community, according to Allen, issues stemming from antiquated regulations arise when it comes to resident retention.

“The amazing thing about assisted living is, our residents don’t want to leave. They want to stay,” Allen says. “Providers who are trying to comply with regulations are having to go to the resident or their family and say, ‘I’m sorry, but you can’t stay here because you have [XYZ] healthcare need, and we’re not allowed to provide that.’ That’s a real tragedy.”

Senior living providers recognize the need for oversight, but regulations aren’t always in touch with reality, they say.

“Assisted living as a product type changes over the years—we pretty much care for the same [sometimes] frail senior with healthcare needs we’ve always cared for, but there are constantly new regulations promulgated at a state level,” says Buchanan. “Sometimes the regulations are appropriate, but sometimes they cause burdens on providers.”

Regulations Looking to Align with Consumers

Changes are definitely afloat as states seek to keep up with consumer demand, according to Maribeth Bersani, senior vice president of public policy at the Assisted Living Federation of America (ALFA).

“There’s a ton of legislative activity this year,” she says, adding that 2013 is the third year in a row ALFA has seen a “huge amount” of assisted living-related legislation introduced.

States are being very responsive to top-of-mind issues, says Bersani, and because assisted living regulation exists at a state level rather than federal level, states have the ability to be very nimble.

“It’s a very, very active year,” she says. “Trends we’re seeing include legislation elder abuse, such as criminal employee background checks to protect seniors. We’re also seeing legislation in states including Florida and California that increase staff training requirements.”

A lot of states are also developing plans for dementia care. In Indiana, a bill was recently signed into law requiring law enforcement schools to provide training for how to deal with persons with dementia.

A victory achieved in Texas during the last legislative session is a good model, she adds, where a law was successfully changed to allow trained nurses in assisted living communities to provide nursing services.

Meanwhile, Rhode Island—where assisted living staff is prohibited from putting a band-aid on a resident—has recognized the limitations of the state’s regulations, according to Bersani, and it’s been brought to the attention of the state regulatory agencies.

While it’s unclear whether new legislation that’s more in line with current consumer expectations will pass this year, it’s a sign that the state is at least trying to keep up, she says.

“Rhode Island’s not going to get fixed overnight,” she says, but overall, “we’ve really seen a shift.”

Though happy with the current state-by-state regulation model, Buchanan would like for the forward-thinking states’ approaches to be more widespread.

“Look at states that are progressive and do allow a broad range of service and a balanced approach to record keeping and customer choice,” Buchanan says. “It would be great if that success was portable and could be used by other states.”

Written by Alyssa Gerace

This article is sponsored by the Assisted Living Federation of America (ALFA) as part of its efforts to advance excellence and explore topics impacting the future of senior living. For more information about ALFA, visit www.alfa.org.