Residential Care and Assisted Living Compendium: 2007

SECTION 1. OVERVIEW OF RESIDENTIAL CARE AND ASSISTED LIVING POLICY

November 30, 2007

PDF Version: http://aspe.hhs.gov/daltcp/reports/2007/07alcom1.pdf (61 PDF pages)

SECTION 1, TABLE OF CONTENTS

INTRODUCTION TO THE CURRENT EDITION

OVERVIEW OF POLICY DEVELOPMENTS SINCE 2004

INCREASED STATE USE OF WEBSITES TO PROVIDE INFORMATION

DEFINING ASSISTED LIVING

ASSISTED LIVING PHILOSOPHY

Negotiated Risk Agreements

OCCUPANCY REQUIREMENTS AND PRIVACY

DISCLOSURE REQUIREMENTS AND RESIDENCY AGREEMENTS

ADMISSION AND RETENTION CRITERIA

Full Continuum

Discharge Triggers

Levels of Licensure

Nursing Home Level of Care Issues

SERVICES

QUALITY ASSURANCE AND MONITORING

Medication Administration

TRAINING REQUIREMENTS

PROVISIONS FOR RESIDENTS WITH ALZHEIMER'S DISEASE AND DEMENTIA

Disclosure

Staff and Training

PUBLIC FINANCING OF SERVICES

Medicaid Financing for Services in Residential Care Settings

Other Medicaid Considerations

State Approaches to Reimbursing Services

Cost-Based Reimbursement and Fee-for-Service Rates

Expanding the Supply of Assisted Living for Low Income Individuals

Medicaid Policy Issues for Housing Investors, Developers, and Operators

LIST OF BOXES, FIGURES AND TABLES

BOX 1-1. State Licensing and Regulatory Approaches

BOX 1-2. Examples of Definitions of Assisted Living

FIGURE 1-1. Supply Changes

TABLE 1-1. Information Provided on States’ Websites

TABLE 1-2. Summary of Major Activities in Residential Care Policy Since 2004

TABLE 1-3. States with Regulations that Include an Assisted Living Philosophy

TABLE 1-4. Residency Agreement Provisions

TABLE 1-5. Disclosure Requirements for Facilities Serving Residents with Dementia

TABLE 1-6. Medicaid Long-Term Care Spending

TABLE 1-7. Nursing Home Supply and Occupancy Rates and Residential Care Supply, 2003

TABLE 1-8. States Using Medicaid to Cover Services in Residential Care Facilities

TABLE 1-9. Sources of Public Funding for Services in Residential Care Settings

TABLE 1-10. Differences Between State Plan and Waiver Services

TABLE 1-11. States That Limit Room and Board Charges

TABLE 1-12. Family Supplementation Policy

TABLE 1-13. State Rate Setting Approaches

TABLE 1-14. New Jersey Rate Schedule

TABLE 1-15. Oregon Service Priority Categories and Monthly Payment Rates: Assisted Living

TABLE 1-16. Texas Daily Reimbursement Rates Effective September 1, 2007

NOTES

INTRODUCTION TO THE CURRENT EDITION

This compendium describes regulatory provisions and Medicaid policy for residential care settings in all 50 states and the District of Columbia. It updates an earlier report completed in 2005 with data for 2004.

The original intent for this edition of the compendium was to provide data for 2006. However, due to the increased availability of current data on states’ websites, we were able to collect data for 2007. Information was collected between February and August 2007 by reviewing state websites and regulations and calling key state contacts to verify information. Section 1 provides an overview of residential care and assisted living policy. Section 2 presents six tables, which compare states’ policy in selected areas. Section 3 provides summaries of each state’s regulations and policy for residential care settings, including assisted living facilities (ALFs).

The 2004 edition of the compendium differed from prior editions in that it used “residential care setting” or “residential care facility” (RCF) as the generic terms for all types of group residential care settings, rather than the term assisted living. The 2007 edition continues the use of these terms. Although many states use the term assisted living generically to cover virtually every type of group residential care on the continuum between home care and nursing homes, for many stakeholders the term assisted living still represents a unique model of residential care that differs significantly from traditional types of residential care such as board and care. When discussing state statutes and regulation, the compendium uses the terms that each state uses.

Adult foster care (AFC)/adult family care is a type of residential care. The most recent comprehensive study of AFC was conducted in 1995 so current information about these settings and their regulation is lacking.¹ Although AFC has never been the focus of the compendium, some states now license adult foster/family care under their assisted living regulations. For example, North Carolina’s statute defines adult family homes (AFHs) as serving two to six residents and adult care homes serve seven or more residents, but licenses both settings as assisted living residences (ALRs).

Nine states -- Georgia, Louisiana, New Hampshire, New Mexico, Rhode Island, Oklahoma, North Carolina, South Carolina, and Vermont -- define at least one licensing category to include all residential care settings that serve two or more residents and eight states (Alaska, Arkansas, Colorado, Idaho, Illinois, Massachusetts, Missouri, and Vermont) have a threshold of three or more. A few states have different thresholds within a licensing category. (Information about regulatory thresholds is generally noted in the state summary definitions in Section 3 of this compendium.)

Consequently, in some states, the number of people served in a residential care setting is no longer a major factor distinguishing the licensing category of adult foster/family care from that of assisted living. This change raises questions about how regulations designed for larger facilities are applied to privately owned family homes compared to states that have separate licensing and regulatory standards for these models.

Each state summary provides information as to whether AFC is covered by assisted living/residential care regulations, or is licensed or certified under separate regulations. When available, the address for the website that hosts the regulations is listed.

Residential care is an important long-term care service option, particularly for individuals who cannot live alone but do not require the skilled level-of-care (LOC) that nursing homes provide. The purpose of this compendium is to inform residential care policy by providing detailed information about each state’s approach to regulating residential care, as well as its funding for services in these settings.

OVERVIEW OF POLICY DEVELOPMENTS SINCE 2004

In 2007, states reported 38,373 licensed residential care facilities with 974,585 units/beds compared to 36,218 facilities with 935,364 units/beds in 2004; these numbers do not include facilities licensed separately as adult foster/family care or facilities licensed by Departments of Mental Retardation and Other Developmental Disabilities (MR/DD) or Mental Health.² Compared to 2004, the supply of licensed facilities rose 6 percent and the number of units rose 4 percent. See Figure 1-1 for a comparison of growth rates since 2000.

FIGURE 1-1. Supply Changes

Changes in facility supply varied across states. About half reported an increase in the number of licensed facilities and half reported a decline. The supply of the number of licensed facilities rose over 10 percent since 2004 in 11 states (Alaska, 41 percent; Arizona, 29 percent; California, 14 percent; Georgia, 10 percent; Massachusetts, 11 percent; Minnesota, 33 percent; North Dakota, 26 percent; Wisconsin, 46 percent; and Wyoming, 33 percent). Supply declined more than 10 percent since 2004 in five states (Hawaii, 11 percent; Kansas, 12 percent; Nevada, 14 percent; New Mexico, 18 percent; and New York, 14 percent.) The decline in the number of licensed facilities did not always follow the direction in the supply in the number of units which suggests that smaller homes may have closed and a fewer number of larger homes were licensed leading to a decline in the number of facilities and a small increase in the number of units.

The 2007 review of state policy and activity found that regulation of residential care settings continues to evolve. Regulatory changes have tended to address the challenges posed by serving frailer and sicker residents as well as concerns among state licensing staff about inappropriate retention, adequacy of care, and the shortage of trained staff. States revised provisions in several areas, including staffing requirements; training requirements for direct care workers and administrators; criminal background checks; admission and retention criteria; disclosure requirements; and resident agreements.

Twenty-one states revised their regulations between 2004 and 2007, and 12 states reported current activity to revise regulations. Two states revised their residential care regulations to add a service philosophy, and Missouri and Pennsylvania adopted the term assisted living for residential care settings. Forty-three states and the District of Columbia now have a licensing category or statute that uses the term assisted living. Pennsylvania enacted a law creating a new licensing category for assisted living that requires units to have private bathroom, living and bedroom space and food preparation areas.

A few states reported changes in Medicaid coverage since 2004. Indiana and Ohio implemented Medicaid home and community-based services (HCBS) waiver to cover services in assisted living settings. While Alabama and the District of Columbia received approval to cover services in residential care settings under waiver programs, they have not yet implemented them due to lack of funding (Alabama) and promulgation of regulations (District of Columbia). California implemented a new 1915(c) waiver program that covers services in assisted living as a demonstration project. West Virginia withdrew an approved Medicaid HCBS waiver to establish a pilot assisted living program (ALP) in public housing sites in four counties.

The reported number of Medicaid beneficiaries served in residential care settings -- including assisted living but excluding adult foster/family care -- declined modestly from 121,000 in 2004 to about 115,000 in 2007.³ Most of the decline occurred in Medicaid state plan programs in Michigan and Florida.

INCREASED STATE USE OF WEBSITES TO PROVIDE INFORMATION

In the past few years, the information available about assisted living and other residential care settings on websites hosted by state agencies has expanded considerably. A review of licensing agency websites identified a wide range of information useful to consumers and their families, as well as owners, operators, and developers (e.g., licensing regulations, survey guidelines, and incident reporting forms). See Table 1-1. Links to each website are included in the state summaries.⁴ States also post information to assist consumers and family members to determine whether residential care can meet their needs and to compare facilities (e.g., guides, disclosure forms, and survey findings).

• All 50 states and the District of Columbia post links to their licensing regulations and statutes.

• Thirty-nine states post additional information primarily for facility owners, administrators, and managers. For example, documents relating to the survey process, survey guidelines, training requirements, background check requirements, forms, and notices.

• Forty-two states list all licensed facilities and some sites include their address and phone numbers, and the number of units.

• Sixteen states post a consumer guide or a list of questions to help consumers and family members understand residential care options and to compare and select a facility.

• Thirteen states include information from survey reports and complaint investigations. Survey reports are prepared by state monitoring staff following on-site visits to assess compliance with state licensing requirements.

DEFINING ASSISTED LIVING

The widespread use of the term assisted living and the considerable state variability in its definition continues to fuel debate about what assisted living is and should be, how it should be regulated, particularly as the number of residents with higher levels of need increases, and whether facilities that do not support key assisted living principles should use the term.

States historically have licensed two general types of residential care: (1) AFC or family care, which typically serves five or fewer residents in a provider’s home although several states use a lower threshold; and (2) group residential care that typically serves six or more residents in a range of settings (from large residential homes to settings that look like commercial apartment buildings or nursing homes). States have used many names for these larger group residential care settings, including: board and care homes, rest homes, adult care homes, domiciliary care homes, PCHs, CBRFs, and assisted living. Until the mid-1990s, the most frequently used term was board and care. Today all types of group residential care are generally referred to as assisted living.

The physical character of a substantial portion of older group residential care facilities is quite institutional, with two to four persons sharing a bedroom, and as many as 8-10 residents sharing a bathroom. Concerned about the institutional character of these settings, policymakers in Oregon -- and gradually in other states -- developed a new licensing category called assisted living. What was new and desirable about assisted living was that it offered residents what traditional board and care facilities did not -- a philosophy of care that emphasized privacy and the ability to have greater control over daily activities such as sleeping, eating, and bathing.

Consumer preference for the new assisted living model of residential care led providers to market all types of residential care facilities as “assisted living” -- whether or not they provided private units or operated with a service philosophy that ensures resident autonomy. Forty-three states and the District of Columbia now use the term assisted living in their residential care regulations. In some states, assisted living is a specific model with a consumer-centered service philosophy, private apartments or units, and a broad array of services which support aging-in-place. In others states, residential care licensing categories have been consolidated under a new general set of “assisted living” rules that might cover the new model of assisted living, as well as board and care, multi-unit elderly housing, congregate housing and sometimes even adult family or foster care (e.g., Maine, Maryland, and North Carolina).

Many states view assisted living as a licensed setting in which services are delivered. Four states (Connecticut, Maine, Minnesota, and New Jersey) define assisted living as a service that may be provided in various settings, which do not have to be licensed. Connecticut and Minnesota license service providers, which may be different entities than the organization that owns or operates the building. Others states see assisted living as a licensed building in which supportive and health-related services are provided. The operator of the building is licensed, and services may be provided by the operator’s staff or contracted to an outside agency. See Box 1-1 for a more detailed description of states’ licensing and regulatory approaches.

Generic use of the term assisted living obscures the differences between types of residential care settings, and makes it difficult for individuals to determine which setting will best meet their current and future needs. A 2004 study of six states’ use of Medicaid to fund services in residential care settings found that stakeholders in five of the states cited public confusion about residential care options as a major problem.⁵

At a hearing in 2000, the U.S. Senate Aging Committee challenged the assisted living industry to address concerns raised in a Government Accountability Office (GAO) report, one of which was the lack of a common definition of assisted living and resulting consumer confusion about this long-term care option. This and subsequent hearings led to the formation of the Assisted Living Workgroup (ALW) designed to bring together assisted living stakeholders to make recommendations to ensure high-quality care for all assisted living residents and to develop a common definition. The workgroup included over 50 organizations with a variety of interests including industry associations, professional organizations, consumer and advocacy groups, and regulators. See Box 1-2 for examples of various definitions of assisted living, including the one proposed by the ALW.

As states allow residential care settings to provide more health-related and nursing services, many observers believe that the key challenge in defining and regulating assisted living is to distinguish it from nursing homes while recognizing that both settings may provide some of the same services and serve some similar residents.

Federal law defines a nursing facility as an institution (or a distinct part of an institution) that is primarily engaged in providing skilled nursing care and related services for residents who require medical or nursing care, rehabilitation services for injured, disabled, or sick persons (a skilled LOC), or on a regular basis, health-related care and services to individuals who because of their mental or physical condition require care and services (above the level of room and board) which can be made available to them only through institutional facilities (the minimum LOC.)⁶

Many individuals who qualify for Medicaid coverage of nursing home care -- particularly those who do not require a skilled LOC -- receive care at home from family members, home health agencies and publicly funded programs such as the Medicaid HCBS waiver program. Because HCBS programs may only serve Medicaid beneficiaries who meet each state’s nursing home criteria, their emergence challenged the assumption that persons who needed the care provided in nursing homes could only be served in a nursing home. It is now recognized that many nursing home eligible persons can be appropriately served in multiple-settings, including residential care settings, particularly those who do not need skilled nursing services.

Because HCBS waiver programs serve some nursing home eligible persons in home and residential care settings, it is not really possible to develop mutually exclusive definitions for nursing homes and residential care, except for the provision of a skilled LOC. Doing so would severely limit states’ ability to offer these residential care settings as a service alternative for nursing home eligible persons. States want to be able to serve at least some nursing home eligible individuals in more home-like residential care settings without imposing the nursing homes’ regulatory structure.

Some observers believe there is perhaps too much emphasis on developing a common definition of assisted living given that all 50 states have the authority to define it how they want. Some believe that a better approach would describe assisted living in a way that recognizes the overlap of needs that can be met and the services that can be offered by both nursing homes and assisted living, yet highlights differences between them. One state regulator has suggested the following definition -- “Assisted living is a facility which provides housing, meals and long-term care services in a group residential setting that is not a nursing home” -- adding that specific requirements for different types of assisted living should then be spelled out in regulation. At the same time, providers need to understand what their liability is when serving medically fragile individuals as well as their requirements to meet these residents’ needs.⁷

To help prospective residents understand the differences between nursing homes and different types of residential care, some states require -- as Oregon, Washington and others do -- that facilities use standardized disclosure forms to describe their scope of service, rate structure, caregiver and nursing staff levels. Many believe that this approach will be much more helpful for consumers than a uniform definition of assisted living.

In short, individuals with health needs and impaired abilities can be served in a range of settings by a variety of service providers: home health agencies, home care agencies, adult day care (ADC), different types of residential care (AFC, board and care, assisted living), and nursing homes. Residential care is an important service option for people who cannot live alone and do not have informal care.

States have the responsibility for regulating residential care settings and their definitions and approaches reflect each state’s unique policy environment and preferences. Consequently, development of a standard definition of assisted living is unlikely. The approach to defining and categorizing residential care for research purposes depends on the research question. One national survey grouped facilities according to the level of services and the amount of privacy they offered (high and low).⁸ A study comparing resident outcomes in residential care and nursing homes would need to categorize facilities according to characteristics relevant to outcomes, such as staffing levels and the provision of nursing services and oversight.

ASSISTED LIVING PHILOSOPHY

Twenty-nine states and the District of Columbia reported that they include provisions regarding assisted living concepts such as privacy, autonomy and decision making in their residential care regulations or Medicaid standards. (See Table 1-3.) Some states regulations are more detailed in these matters, others are less so. For example, regulations may state the importance of privacy, but only 11 states with a statement of the philosophy of assisted living require private apartment units;⁹ five states have mixed requirements, allowing bedrooms in some settings and individual apartments in new construction; and 14 states allow sharing (apartments or bedrooms) only by resident choice. (See section on Occupancy Requirements and Privacy for additional information.) Examples of state provisions that reference assisted living principles follow.

• Florida’s statute describes the purpose of assisted living as “to promote availability of appropriate services for elderly and disabled persons in the least restrictive and most home-like environment, to encourage the development of facilities which promote the dignity, privacy and decision making ability” of residents. The Florida law also states that facilities should be operated and regulated as residential environments and not as medical or nursing facilities. Regulations require that facilities develop policies to maximize independence, dignity, choice, and decision making.

• Illinois’ statute defines assisted living, in part, as a model that: (1) assumes that residents are able to direct their services and will designate a representative to direct them if they are unable to do so; and (2) supports the principle that there is an acceptable balance between consumer protection and resident willingness to accept risk and that most consumers are competent to make their own judgments about the services they are obtaining. The statute states that assisted living establishments and shared housing establishments “shall be operated in a manner that provides the least restrictive and most home-like environment and that promotes independence, autonomy, individuality, privacy, dignity, and the right to negotiated risk in residential surroundings.”

• New Jersey requires facilities to coordinate services “in a manner which promotes and encourages assisted living values. These values are concerned with the organization, development, and implementation of services and other facility or program features so as to promote and encourage each resident’s choice, dignity, independence, individuality, and privacy in a home-like environment,” as well as “aging-in-place and shared responsibility.”

• Texas’ authorizing statute specifies that rules must be developed to promote policies that maximize the dignity, autonomy, privacy, and independence of each resident; and that service delivery should be driven by a philosophy that emphasizes personal dignity, autonomy, independence, and privacy and should enhance a person’s ability to age in place.

• Oregon, the first state to adopt a specific philosophy for assisted living, states that: “Assisted living … is a program that promotes resident self-direction and participation in decisions that emphasize choice, dignity, privacy, individuality, independence and home-like surroundings.”

• Washington requires that the basic training curriculum for staff in residential care settings includes instruction on how to perform tasks while incorporating resident preferences; how to maintain residents’ privacy and dignity; and how to create opportunities that encourage resident independence.

Unless states operationalize assisted living concepts as specific regulatory requirements -- for example, assuring privacy by requiring private rooms or apartments -- the choices that facilities make in their physical and organizational structures and their service and training policies will generally determine whether the state’s intent is realized. In the absence of specific regulatory requirements, it may be difficult to determine whether a facility is carrying out the regulations’ philosophy.

Consumer advocates have questioned whether staff that inspect or survey nursing facilities should also inspect residential care facilities operating under an assisted living philosophy and related rules, without having specific training about this philosophy. Some states provide this training (e.g., Texas requires training for state inspectors on how assisted living differs from nursing homes). The National Academy of State Health Policy 2002 survey of state licensing agencies found that 24 states use different staff to survey residential care facilities than they use for nursing facilities; survey staff in the remaining states inspect both.

Negotiated Risk Agreements

As illustrated in the examples above, ensuring resident autonomy is a central concept in the assisted living philosophy. Fifteen states and the District of Columbia have regulations referencing a process or approach for negotiating disagreements about residents’ autonomy and risk taking and providers’ concerns about risk (Alaska, Arkansas, Delaware, Florida, Hawaii, Illinois, Iowa, Kansas, New Jersey, Ohio, Oklahoma, Oregon, Vermont, Washington, and Wisconsin.) States use different terms to describe the process -- negotiated risk, managed risk, shared responsibility, compliance agreement, and negotiated plan of care.

Despite differences in the term, most of the regulations share common features, such as requiring that the agreement be written and signed by the resident and the appropriate facility administrator. State regulations typically require that the agreement describe the possible consequences of the resident’s actions, the specific concerns of the facility, and options that will both minimize the risk and respect the resident’s choices. They also generally require documentation of the negotiation process, and agreement or lack thereof, and the decision reached by the resident after consideration of the facility’s concerns. Several states allow surrogates or sponsors to negotiate risk agreements.

Examples of states’ specific provisions follow.

• The District of Columbia defines a shared responsibility agreement as a “tool to recognize a resident’s right to autonomy by respecting his or her right to make individual decisions regarding lifestyle, personal behavior, safety and individual service plans.

• New Jersey defines managed risk as the process of balancing residents’ choice and independence with the health and safety needs of the resident and other persons in the facility or program. If a resident’s preference or decision places the resident or others at risk or is likely to lead to adverse consequences, the facility may discuss such risks or consequences with the resident (and their representative if the resident wants). The facility can then negotiate with the resident a formal plan to avoid or reduce negative or adverse outcomes.

• Oregon’s rules do not allow managed risk plans “with or on behalf of a resident who is unable to recognize the consequences of his/her behavior or choices.”

• Vermont’s rules require that the facility notify the resident that the state Long-Term Care Ombudsman is available to assist in the negotiated risk process.

• Wisconsin’s rules state that risk agreements do not mitigate or waive any tenant’s rights.

State licensing officials in states that allow negotiated risk agreements indicated that they are not widely used.

OCCUPANCY REQUIREMENTS AND PRIVACY

Historically, the physical character of a substantial portion of residential care was quite institutional -- as permitted by state regulation -- with 2-4 persons sharing a bedroom, and as many as 8-10 residents sharing toilet and bathing facilities. The new assisted living model of residential care became popular with older people in large part because it offers what traditional board and care facilities generally do not: privacy and the concomitant opportunity to have greater control over daily activities such as bathing, eating, and sleeping. Another reason for its popularity is that ALFs built in the 1990s have more attractive and comfortable physical environments than do board and care facilities, many of which were built in the 1960s and 1970s.

Consequently, single occupancy apartments or rooms dominate the assisted living private-pay market. A survey of non-profit facilities conducted in 1997 by the Association of Homes and Services for the Aging found that 76 percent of the units in free-standing facilities and 89 percent of units in multi-level facilities were private (studio, one, or two-bedroom units).¹⁰ A similar survey by the Assisted Living Federation of America found that 87.4 percent of units in its member facilities were studio, one, or two-bedroom units and only 12.6 percent were semi-private (shared by two unrelated persons).¹¹ In a national survey of ALFs in the late 1990s, Hawes, et al. found that 73 percent of the units were private, 25 percent of the units were semi-private, and 2 percent were “ward-type” rooms that housed three or more unrelated persons.¹²

A 1998 survey of ALFs by the National Investment Conference (NIC) found that 17 percent of the residents shared a unit. Of these, 52 percent said that they shared their unit for economic reasons, 30.4 percent for companionship, and 14.9 percent because a private unit was not available. Just under 65 percent of those who shared a unit were satisfied with the arrangement and 35.7 percent preferred a single unit.¹³

Nationally, consumer demand, the availability of subsidized units, and the extent of competition are more likely than regulatory policy to determine whether studio or apartment-style living units are available for private-pay residents. However, for Medicaid eligible residents, state regulatory policy and Medicaid policy determine the types of units available. For example, Medicaid contracting requirements in Washington require participating facilities to provide private apartments shared only by choice.

Due to the popularity of assisted living, many providers of all types of residential care settings market themselves as assisted living, whether or not they give private rooms to all residents. Some board and care homes that want to be licensed as assisted living may have an interest in opposing rules requiring apartment-style units and single occupancy. On the other hand, advocates of assisted living as a unique model of care oppose the use of the term assisted living by facilities that do not offer private rooms or units to all residents. Consequently, occupancy requirements have become a contentious issue.

States have taken a number of approaches to setting occupancy requirements. Some states have simply amended their statutes to rename board and care homes as assisted living and continue to permit dual occupancy. Others have allowed dual occupancy standards in grandfathered buildings but require new buildings to offer single occupancy units. Some states maintain separate licensing categories, allowing dual occupancy in some settings and requiring single occupancy in others. Several states have multiple licensing categories and the two-person limit may apply to only one of the categories.

Thirty-five states have rules that allow two unrelated people to share a unit or bedroom. Ten states have licensing categories that allow four people to share a room; three states allow three people to share units. A few states to do not specify how many people may share a bedroom.

States that have developed a multiple-setting assisted living model vary the requirements by the setting. For example, New York allows sharing for board and care facilities participating in the Medicaid program but requires apartments in the “enriched housing category,” which includes purpose-built residences and subsidized housing. Additional examples of states’ requirements follow.

• Florida licenses two types of assisted living, one which allows up to four people to share a bedroom, and extended congregate care (ECC), which requires private apartments or private rooms shared only by a resident’s choice.

• New Mexico’s assisted living waiver provides services in two types of adult residential facilities offering “home-like” environments, which offer both units with 220 square feet of living and kitchen space (plus bathroom), and single or semi-private rooms in adult residential care facilities. Rooms and units may be shared only by choice.

• Texas covers assisted living services through Medicaid to residents in three settings: assisted living apartments (single occupancy); residential care apartments (double occupancy allowed); and residential care non-apartments (double occupancy rooms).

Four people may share a room under what would have been described prior to the use of the term “assisted living” as board and care licensing rules in Delaware, Georgia, Indiana, Iowa, Michigan, Mississippi, Missouri, Nebraska, Pennsylvania, Rhode Island, South Carolina, and Virginia. Shared toilet facilities and bathing facilities are the rule among states with board and care regulations. State rules that allow bedrooms to be shared by 2-4 residents require bathrooms and lavatories for every 6-10 residents.

While a state’s policy sets the parameters for what may be offered and provided, the actual practice may be narrower. Shared units may be allowed, but the market may produce very few or no facilities that offer shared units. Further, facilities constructed prior to the development of the assisted living model may offer shared units while most, if not all, newly constructed buildings have predominantly or solely private units.

DISCLOSURE REQUIREMENTS AND RESIDENCY AGREEMENTS

A GAO study of ALFs in four states concluded that while most facilities provide information about the services available, they do not routinely provide information about discharge criteria, staff training and qualifications, services not available from the facility, grievance procedures, and medication policies. The GAO report concluded that the provision of adequate information to prospective and current residents is a major issue that requires additional oversight.¹⁴

With few exceptions, states that license residential care require facilities to include specific information in residency agreements. Connecticut and Minnesota do not use residency agreements per se because they only license the service provider and the housing provider executes a lease agreement with tenants. Table 1-4 lists the type of information that states may provide in resident agreements and the number of states that require the provision of this information.

As can be seen, a majority of the states provide information about services, but only about half or less provide information about most of the other topics. Few states require information about medication policy and staffing.

Examples of “other” requirements follow:

• Colorado requires facilities to disclose whether they have an automatic sprinkler system.

• Kansas requires facilities to give prospective residents information on advance medical directives, resident rights, and the facility’s grievance procedure, before an agreement is signed.

• Maine does not allow the resident agreement to contain any provision for discharge that is inconsistent with state rules or law or which implies a lesser standard of care than is required by rule or law. Agreements in Maine must also include information about grievance procedures, tenant obligations, resident rights, and the facility’s admissions policy.

• Maryland requires disclosure in the agreement of the LOC that the facility is licensed to provide and the LOC needed by the resident at the time of admission. The state also requires facilities to disclose policies concerning shared occupancy and procedures that will be followed when a resident’s accommodations are changed due to relocation, change in roommate assignment, or an adjustment in the number of residents sharing a unit.

• New Hampshire issued regulations in 2003 requiring disclosure of information to allow residents to compare ALRs, independent retirement communities, and elder housing, in order to make an informed choice about where to live. The state requires facilities to disclose whether they are licensed; the basic rate; the personal care and other services included in the rate; meals provided; transportation services; recreation and leisure activities; amenities in the living unit; policies regarding deposits/advance payment requirements and refundability; and services not included in the basic rate and their cost. Facilities must also provide information about their staffing, including whether staff are available 24-hours a day, and the availability of licensed nurses, personal care attendants, nursing assistants, and maintenance staff.

• Wisconsin requires that the qualifications of staff who will provide services be included in the agreement as well as whether services are provided directly by the facility’s staff or under contract by an outside entity.

Some states require facilities to provide some of the information listed in Table 1-4 in a residents’ rights statement rather than a residency agreement, particularly information about grievance procedures.

The GAO study cited unmet consumer expectations for aging-in-place and forced moves as a major resident complaint. Twenty-eight states require agreements to include information about the facility’s criteria for admission, discharge, or transfer. Other states cover discharge criteria under provisions regarding termination.

Finally, several states have rules regarding the format of resident agreements. Kansas requires that agreements be written in clear and unambiguous language in 12-point type. Maryland requires agreements to use accurate, precise, easily understood, legible, readable, “plain” English. Wisconsin requires that agreement formats make it easy to readily identify the type, amount, frequency, and cost of services. Some states require information about provisions that allow staff to inspect living quarters, with the resident’s permission.

Most states do not have rules for revising or updating resident agreements. However, Alabama, Illinois, Mississippi, and Oregon require that agreements include the period covered by the agreement. Wisconsin requires that the agreement be reviewed and updated when there is a change in the resident’s condition or at the facility’s or resident’s request. Updates are otherwise made as mutually agreed to by the resident and the provider.

ADMISSION AND RETENTION CRITERIA

States regulations pertaining to admission and retention typically consider applicants’ or residents’ general condition, physical and cognitive function, behavioral problems, and health-related needs including the need for nursing care.

Only a few states (e.g., North Carolina and Illinois) do not allow individuals who meet the state’s minimum nursing home LOC criteria to be served in residential care settings. However, no states allow persons who need a skilled level of nursing home care to be served in residential care settings (e.g., individuals who require 24-hour-a-day skilled nursing oversight or daily skilled nursing services).

State approaches for setting admission and retention policies can be grouped into three categories:

• Full Continuum -- states allow facilities to serve people with a wide range of needs;
• Discharge Triggers -- states develop a list of medical needs or treatments that cannot be provided in a facility and that will result in a resident’s discharge from a facility; and
• Levels of Licensure -- states license facilities based on the needs of residents or the services that may be provided in a specific kind of facility.

These approaches are not mutually exclusive and states may use more than one approach. States may also grant facilities waivers that allow them to serve residents whose needs exceed the limits stated in statutes or regulations.

Full Continuum

States using a full continuum approach have broad criteria that allow facilities to serve residents with a wide range of needs, in theory permitting residents to age in place. However, providers are not required to serve everyone who meet these criteria and can establish their own admission and discharge standards within state parameters. For example, Massachusetts allows providers to meet personal care needs and at a minimum must provide assistance with bathing, dressing, and ambulation. However, they are not required to offer assistance with other ADLs such as toileting and eating. Most other states allow, but do not require, residences to serve people with ADL needs. Facilities are often required to inform prospective residents about the type of conditions that would trigger discharge. Giving providers a great deal of discretion regarding discharge criteria can limit residents’ ability to age in place.

States using the full continuum approach include Hawaii, Kansas, Maine, Minnesota, Nebraska, New Jersey, and Oregon, and those with the most flexible rules include Arizona, Hawaii, Kansas, Maine, Maryland, Minnesota, New Jersey, Oklahoma, and Oregon. Examples of this approach follow.

• Oregon generally does not limit whom facilities may serve. The rules contain “move out” criteria that allow residents to choose to remain in their living environment despite functional decline as long as the facility can meet the resident’s needs. However, facilities are not required to serve all residents whose needs increase. Providers may ask residents to move if: (1) their needs exceed the level of ADL services available; (2) the resident exhibits behaviors or actions that repeatedly interfere with the rights or well-being of others; (3) the resident, due to cognitive decline, is not able to respond to verbal instructions, recognize danger, make basic care decisions, express need, or summon assistance; (4) the resident has a complex, unstable, or unpredictable medical condition; or (5) the resident has failed to make payment for charges.

• Hawaii’s rules do not specify who may be admitted and retained. Rather, each facility may use its professional judgment and the capacity and expertise of the staff to determine who it will serve. Facilities are required to develop their own admission and discharge policies and procedures. Discharge with 14 days notice is allowed based on behavior, needs that exceed the facility’s ability to meet them, or a resident’s established pattern of non-compliance.

• Washington allows facilities to accept and retain residents if: (1) they can meet the individual’s needs, and provide required specialized training to resident care staff; (2) the individual’s health condition is stable and predictable, as determined jointly by the “boarding home” and the resident or the resident’s representative if appropriate; and (3) the individual is ambulatory, unless the boarding home is approved by the Washington State director of fire protection to care for semi-ambulatory or non-ambulatory residents. Individuals must also meet all of the boarding home’s established acceptance criteria.

• Maine allows facilities to determine whom they will admit and the type of services they will provide. They may discharge residents who pose a direct threat to the health and safety of others, damage property, or whose continued occupancy would require modification of the essential nature of the program. Rules regarding the provision of nursing care vary by setting. Residential care facilities may provide nursing services with their own staff only to residents who do not meet the state’s nursing home LOC criteria. Residents who meet the LOC criteria can be served, but nursing services must be provided by a licensed home health agency. Congregate housing programs may receive a license to provide nursing and medication administration services by registered nurses (RNs) employed by the program.

• New Jersey’s rules state that assisted living is not appropriate for people who are incapable of responding to their environment, expressing volition, interacting, or demonstrating independent activity. The rules allow facilities to provide a very high LOC, but they are not required to do so. The rules specifically state that facilities may choose to serve residents who:

  • Require 24-hour, seven day a week nursing supervision;
  • Are bedridden longer than 14 days;
  • Are consistently and totally dependent in four or more ADLs;
  • Have cognitive decline that interferes with simple decisions;
  • Require treatment of Stage III or IV pressure sores or multiple Stage II sores;
  • Are a danger to self or others; or
  • Have a medically unstable condition and/or special health problems.

  Facilities may not serve residents who require a respirator or mechanical ventilator or people with severe behavior management problems, such as combative, aggressive, or disruptive behaviors.

Discharge Triggers

States use discharge triggers to regulate the types of medical treatments that can and can not be provided by specific facilities and to determine when a resident can no longer reside in a facility. Most prohibited treatments require performance by skilled nursing personnel. States that use these triggers include: California, Delaware, Florida, Idaho, Illinois, Maryland, Mississippi, Nevada, New Mexico, South Carolina, Tennessee, Virginia, and West Virginia. State rules may overlap as Idaho, Maryland, and Mississippi also license by LOC, and New Jersey allows a full continuum of care. Examples of this approach follows.

• Tennessee requires facilities to discharge individuals who require intravenous (IV) or daily intramuscular injections; gastronomy feedings; insertion, sterile irrigation, and replacement of catheters; sterile wound care; or treatment of extensive Stage III or IV decubitus ulcers or exfoliative dermatitis; or who require four or more skilled nursing visits per week for any other condition. Facilities may retain current residents who develop these needs for up to 21 days but may not admit individuals with these needs.

• Virginia does not allow residential care facilities to serve people who are ventilator dependent; have Stage III or IV dermal ulcers (unless a Stage III ulcer is healing); need IV therapy or injections directly into the vein except for intermittent care under specified conditions; have an airborne infectious disease in a communicable state; need psychotropic medications but do not have an appropriate diagnosis and treatment plan; or have nasogastric tubes and gastric tubes (except when individuals are capable of independently feeding themselves and caring for the tube.)

Levels of Licensure

Several states -- Arizona, Arkansas, Florida, Maine, Maryland, Mississippi, Missouri, Utah and Vermont -- have two or more levels of licensure based on the needs of residents or the services that may be provided. Idaho dropped licensing by levels of care in 2006. Examples of this approach follow.

• Arizona licenses three levels of care: supervisory care, personal care, and directed care. Residential care facilities providing supervisory care may serve residents who need health or health-related services if these services are provided by a licensed home health or hospice agency. Those with a personal care service license may not accept or retain any resident who is unable to direct self-care; requires continuous nursing services unless the nursing services are provided by a licensed hospice agency or a private duty nurse; has a Stage III or IV pressure sore; or is bed bound due to a short illness unless the primary care physician approves, the resident signs a statement and the resident is under the care of a nurse, a licensed home health agency, or a licensed hospice agency. Facilities licensed to provide directed care may serve residents who are bed bound, need continuous nursing services, or have a Stage III or IV pressure sore.

• Arkansas licenses two levels of facilities. Level I ALFs cannot serve nursing home eligible residents or residents who need 24-hour nursing services; are bedridden; have transfer assistance needs that the facility cannot meet; present a danger to self or others; or require medication administration performed by the facility.

  Level II ALFs can serve nursing home eligible residents and participate in a Medicaid HCBS waiver, but cannot serve residents who need 24-hour nursing services; are bedridden; have a temporary (no more than 14 consecutive days) or terminal condition unless a physician or advance practice nurse certifies the resident’s needs may be safely met; have transfer assistance needs, including but not limited to assistance to evacuate the facility in case of emergency, that the facility cannot meet with current staffing; present a danger to self or others; or engage in criminal activities. Facilities may be licensed for both levels of care in distinct parts or separate wings.

• Florida licenses four types of facilities: basic ALFs, limited nursing services (LNS), limited mental health services, and ECC which is the highest LOC. ECC facilities serve residents with higher needs and provide more services than the other levels including total help with bathing; nursing assessment more frequently than monthly; measurement and recording of basic vital functions; dietary management; supervision of residents with dementia; health education and counseling; assistance with self-administration and administration of medications; provide or arrange rehabilitative services; and escort services to health appointments.

• Utah licenses two levels of facilities. Level I facilities serve residents who are ambulatory, have stable health conditions, require limited assistance with ADLs and need regular or intermittent care or treatment from facility staff. Level II facilities serve residents who need substantial assistance with ADLs, offer separate living units, and enable residents to age in place as much as possible. Level II residents may not need in-patient or 24-hour continual nursing care for more than 15 days, or a two-person assist to evacuate the building. Both types of facilities may assist with or administer medications under supervision of a licensed nurse.

Nursing Home Level-of-Care Issues

States typically have two or more levels of nursing home care and not all persons served in nursing homes may be served in residential care. States distinguish among levels of care primarily for payment purposes. As noted in the discussion of admission and retention policies, above, states typically do not allow facilities to serve persons who require a skilled level of nursing care (as opposed to discrete skilled services, which many states allow in residential care on a limited basis).

Generally, individuals who meet a state’s minimum LOC criteria can be and are served in residential care settings. Only a few states do not allow residential care facilities to serve persons who meet the minimum or threshold nursing home LOC criteria (e.g., North Carolina). Because states’ minimum nursing home criteria vary markedly, individuals who meet the nursing home criteria in one state may not meet the criteria in another state. Thus, the statement that most states permit residential care settings to serve individuals who are “nursing home eligible” obscures sometimes significant differences in the type and LOC provided in these settings in different states.

States fall on a continuum from low to high thresholds for nursing home admission. Some states require a person to need assistance with only two ADLs, while others may require that a person be totally dependent in three or more ADLs. Some states require individuals to have a combination of medical conditions/needs and functional limitations; others require only certain medical needs. Of the 45 states whose criteria were reviewed for the 2004 Compendium, two used medical criteria only; 13 used medical and functional needs; eight used an assessment score based on a combination of medical and functional needs; and 22 used ADL thresholds. Section 3 provides information about each state’s nursing home LOC criteria.¹⁵ A few examples of states’ criteria follow.

Medical. Alabama requires an individual to need daily nursing or medical services that as a practical matter can only be provided in a nursing facility on an in-patient basis.

Medical and/or functional. Maine requires individuals to need skilled care on a daily basis (nursing or rehabilitation therapies); or extensive assistance with three of the following ADLs (bed mobility, transfer, locomotion, eating, and toileting); or one of several specifiedcombinations of nursing and functional needs.

ADL Threshold. New Hampshire requires individuals to either need assistance with two or more ADLs, or to need 24-hour care for at least one of the following: medical monitoring and nursing care; restorative nursing or rehabilitative care; or medication administration.

Combination of Factors. Illinois requires individuals to have a specific score on a standardized assessment. The score is derived from a score on the Mini-Mental State Examination (MMSE), and impairments in six ADLs and nine instrumental activities of daily living (IADLs) (including ability to perform routine health and special health tasks and ability to recognize and respond to danger when left alone).

Because Centers for Medicare and Medicaid Services (CMS) gives states considerable flexibility in setting minimum nursing home LOC criteria, states may choose to make the criteria more stringent in response to budget deficits. In states that cover Medicaid waiver services in residential care settings, if individuals become ineligible for nursing home care due to increases in the threshold LOC criteria -- for example, requiring three out of five ADL impairments rather than two out of five -- they will also be ineligible for waiver services in residential care settings.

If a state markedly increases the stringency of its minimum nursing home LOC criteria to control nursing home admissions, it would need to ensure that admission and retention criteria for residential care settings allow these settings to continue serving Medicaid waiver clients with the higher level of need required for Medicaid nursing home admission.

SERVICES

One of the attractive philosophical tenets of assisted living is that it allows aging-in-place -- meaning that as individuals age and become more disabled, additional services can be provided so that they will not have to move to another residential care setting or to a nursing home.

States seeking to facilitate aging-in-place and to offer consumers a full range of long-term care options allow more extensive services to be provided in residential care facilities, just as they can be provided in an individual’s home through home health agencies and in-home service programs.

However, facilities vary in the extent to which aging-in-place is possible, because states generally specify the range of allowable services and a minimum that must be provided, but do not require facilities to provide the full range of allowable services. Facilities are usually authorized to determine which services they will provide within state parameters. Facilities may offer very limited, moderate, or extensive services. Thus, both state regulations and facility policy govern the type, amount, frequency and duration of services provided, and, hence, the ability to age in place.

Thus, although state regulations frequently state their support for aging-in-place, they may also allow facilities to discharge individuals with higher levels of need. A key determinant of the ability to age in place is the extent to which states permit residential care facilities to address residents’ nursing and health-related needs.

Some experts contend that residential care settings cannot and should not be expected to meet the needs of persons with a high level of disability and/or medically complex conditions. Others agree, believing that residential care should be a social care model and that having nurses on staff is not only unnecessary but undesirable. However, other regulators, particularly in states that allow nurses to delegate specified nursing tasks, believe that residential care settings, like a person’s own home or apartment, are appropriate settings for people with severe disabilities and/or health needs. But some observers have expressed concern about direct care staff’s ability to recognize and address health problems in medically fragile residents when they are not trained nursing assistants. Many states do allow residential care facilities to provide skilled nursing care, as indicated in the following examples.

• Illinois allows health services such as medication administration, dressing changes, catheter care, and therapies, if provided on an intermittent basis.

• Florida allows the provision of nursing services under two types of licensure: LNS and ECC. A license for LNS allows facilities to provide nursing services including medication administration and supervision of self-administration, heat and ice cap application, passive range of motion exercises, urine tests, routine dressing changes that do not require packing or irrigation, and intermittent nursing services (e.g., change of colostomy bag and related care, catheter care, administration of oxygen, routine care of an amputation or fracture, prophylactic, and palliative skin care). A license for ECC permits a facility to provide nursing services in addition to those provided under the LNS license.

  However, the state also specifies certain nursing services that may not be provided under either type of license, including oral or nasopharyngeal suctioning, assistance with tube feeding, monitoring of blood gasses, intensive rehabilitation services for a stroke or fracture or treatment of surgical incisions that are not clean and infection-free, and any treatment requiring 24-hour nursing supervision.

• Washington’s regulations specify which skilled services may and may not be delivered by licensed nurses and unlicensed staff in residential care settings. RNs or licensed practical nurses (LPNs) may insert catheters, provide nursing assessments, and glucometer readings. Unlicensed staff under the supervision of a licensed nurse may provide Stage I skin care, routine ostomy care, enemas, catheter care, and wound care. Statutory changes in the Nurse Practice Act that would allow greater delegation are pending in the legislature.

• New Jersey allows residential care facilities to provide skilled nursing procedures that are specifically barred in many states, for example, care of Stage III or IV pressure sores, ostomy care, and 24-hour nursing supervision.

• Missouri allows residential care facilities to provide certain nursing procedures that they call “advanced personal care services.” They include catheter and ostomy care, bowel or bladder routines, range of motion exercises, assistance applying prescriptions or ointments and other tasks requiring a highly trained aide.

• Maine allows residential care facilities and congregate housing programs to provide skilled nursing services.

Several states limit the provision of skilled nursing services in residential care settings by restricting their frequency and duration. Others prohibit facilities from providing these services directly, but allow them -- and/or residents -- to arrange for their provision through a home health agency. Some states use a combination of approaches, all of which are illustrated in