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.
1. Donna Folkemer, Allen Jensen, Linda Lipson, Molly Stauffer and Wendy Fox Grage. Adult Foster Care for the Elderly: A Review of State Regulatory and Funding Strategies. AARP. Washington, DC. March 1996.
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.
2. The data were obtained from state agency websites, when available, or reported by state licensing agencies. Partial information was reported for some categories in Delaware, Kentucky, Minnesota, New Jersey, New York, New Mexico and West Virginia. (See Table 2-1 in Section 2 for each state’s information.) While these numbers do not include facilities licensed by state MR/DD agencies, some individuals with MR/DD may be living in facilities licensed as residential care/assisted living.
3. The number of residents receiving Medicaid in residential care settings is slightly underreported because it does not include data from Kansas. Kansas’ reporting system does not differentiate between waiver clients served in their own homes and those served in residential care settings.
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.
TABLE 1-1. Information Provided on States’ Websites
TABLE 1-2. Summary of Major Activities in Residential Care Policy Since 2004
4. Please note that websites change over time and the links listed may not be current when you try to access the site.
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.
- The ALW final report and recommendations may be found at http://www.aahsa.org/alw.htm.
- JCAHO. 2003-2005 Accreditation Manual for Assisted Living.
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.
The six states were Florida, Minnesota, Oregon, North Carolina, Texas, and Wisconsin. Oregon is the only state of the six that requires assisted living providers to offer private apartments. (See Janet O’Keeffe, Christine O’Keeffe, and Shula Bernard. Using Medicaid to Cover Services for Elderly Persons in Residential Care Settings: State Policy Maker and Stakeholder Views in Six States. Report prepared for the U.S. Department of Health and Human Services (HHS), Office of Disability, Aging and Long-Term Care Policy.) Available at: http://aspe.hhs.gov/daltcp/reports/04alcom.htm.
42 U.S.C. 1396r.
Wendy Fearnside, Program and Planning Analyst, Bureau of Aging and Long-Term Care Resources, Wisconsin Department of Health and Family Services.
Catherine Hawes, Ph.D. and Charles D. Phillips, Ph.D., M.P.H. A National Study of Assisted Living for the Frail Elderly: Final Summary Report. Texas A&M University System Health Science Center. US DHHS, Assistant Secretary for Planning and Evaluation, contract number HHS-100-94-0024 and HHS-100-98-0013. November 2000. [http://aspe.hhs.gov/daltcp/reports/finales.htm]
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 onOccupancy 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.
9. Oregon defines a “unit” as an individual living space constructed as a completely private apartment, including living and sleeping space, kitchen area, bathroom and adequate storage areas.
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.
Ruth Gulyas. The Not-for-Profit Assisted Living Industry: 1997 Profile. American Association of Homes and Services for the Aging. Washington, DC. 1997. Also, 2000 Overview of the Assisted Living Industry. The Assisted Living Federation of America and Coopers and Lybrand. Washington, DC. 2000.
Ronald K. Tinsely, Robert G. Kramer, et al. Overview of the Assisted Living Industry. Assisted Living Federation of America. Fairfax, VA. 2000.
Hawes et al., op. cit.
National Survey of Assisted Living Residents: Who Is The Customer? NIC and the Assisted Living Federation of America. Washington, DC. 1998.
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.
TABLE 1-4. Residency Agreement Provisions
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.
14. Assisted Living: Quality of Care and Consumer Protection Issues. GAO. T-HEHS-99-111. April 26, 1999.
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.
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 the following examples.
Massachusetts -- like many states -- does not allow residential care facilities to serve residents who need nursing services available 24-hours-a-day. Skilled services may only be provided by a certified home health agency on a part-time or intermittent basis to persons whose medical conditions require services periodically on a scheduled basis.
In addition, the state allows residents to “engage or contract with any licensed health care professional and providers to obtain necessary health care services...to the same extent available to persons residing in private homes.” Because the Massachusetts statute allows skilled nursing services to be provided only by a certified home health agency, RNs hired by an ALF are not allowed to deliver skilled care. An initial draft of new state regulations did not allow the provision of skilled services for more than 90 days in a 1-year period. When the state attorney general’s office determined that such limits may conflict with fair housing rules, the state removed the 90-day limit.
Ohio limits the provision of skilled services in residential care facilities to 120 days in a 12-month period with exceptions for special diets, dressing changes, and medication administration.
Iowa allows facilities to provide health-related care (i.e., services provided by a RN, a LPN, or home care aide), and services provided by other licensed professionals as defined in regulations. Health-related and personal care services can be provided on an intermittent and part-time basis, which is defined as up to 35 hours a week on a less than daily basis, or up to eight hours provided seven days a week for temporary periods not exceeding 21 days.
Kentucky allows residents to arrange for additional services under direct contract or arrangement with an outside agent, professional, provider, or other individual designated by the client if permitted by facility policy.
Quality Assurance and Monitoring
In 2003 and 2004, hearings held by the U.S. Senate Special Committee on Aging, reports by GAO, and newspaper articles all raised concerns about the quality of care in residential care settings and the challenges providers and state oversight agencies face in assuring quality. In April 2004, the GAO issued a report on quality assurance initiatives in Florida, Georgia, Massachusetts, Texas, and Washington.16
The report stated that ALFs are more likely to meet and maintain licensing standards if they can obtain help in interpreting those standards and in determining what concrete changes they need to make to satisfy them. It described an initiative in Washington that established a staff of quality consultants to provide such training and advice to assisted living providers on a voluntary basis. Evaluations at six months and two years after implementation documented improvements in provider compliance as well as resident health and safety. However, a statewide budget crisis required the state to end funding for the program in order to maintain traditional licensing enforcement functions.
Wisconsin and Kansas have recently initiated activities to better ensure quality. The Wisconsin Bureau of Quality Assurance created anAssisted Living Forum for stakeholders to discuss current issues, interpretation of regulations, best practices, quality improvement (QI), staffing issues, national and state trends, and other public policy issues.
Wisconsin has also revised its survey process for residential care apartment complexes (RCACs), its apartment model of assisted living, which is not licensed but has to be either registered or certified to serve Medicaid clients. The new process includes a technical assistance component to interpret requirements; provide guidance to staff on consumer quality of life and care; review provider systems, processes and policies; and explain new or innovative programs. The revised survey strategy includes seven types of surveys: initial, standard, abbreviated, complaint, verification, monitoring, and self-report. The state determines which type of survey to conduct for each facility based on a range of factors, including its citation history. Abbreviated surveys are performed for facilities without any enforcement actions over the past three years and no substantial complaints or deficiency citations.
Kansas has adopted a collaborative oversight approach. Facility staff accompany the surveyor during the review. Observations are discussed during the process and, when necessary, problem areas are reviewed in the context of the regulatory requirements. Deficiency statements focus on consumer outcomes. The Director of licensing also conducts a full day training course several times a year on the role of licensed nursing in ALFs for nurses, operators and owners. The training covers use of the assessment, developing a service plan, managing medications and the Nurse Practice Act. The state believes that the combination of regular visits, consistent application of the regulations, and a more collaborative oversight process and training have resulted in better compliance with the regulations and fewer complaints.
Several states reported organizing periodic trainings for facility staff or including articles in a newsletter about specific problems that surveyors find are occurring in a number of facilities. One state indicated that facilities are responsible for resolving quality problems and the state provides consultants to assist them to do so. Other states clarify rules or statutes with facility staff during the survey or during exit interviews after the survey is completed. If the facility is able to correct the problem during the survey, no deficiency citation is issued. Utahallows new administrators to request assistance, and has procedures for the licensing agency to review survey forms with administrators, as well as previous reports and deficiencies. Pennsylvania provides guidance by disseminating information about best practices.
A few states indicated that they could not provide consultation and technical assistance due to staff shortages and the need to complete facility surveys.
States mentioned other quality assurance strategies including, providing technical assistance and follow-up; acting within ten days on complaints; having clear lines of communication and definition of duties for survey staff; developing clear enforcement procedures that are well understood by state staff meeting with providers to discuss issues; providing training; conducting follow-up visits; and maintaining a consumer perspective that focuses on improving care, not just punishing past failures. States described a number of quality initiatives underway including:
- Providing training for providers;
- Implementing new training requirements for medication aides;
- Revising the survey process;
- Developing a more formalized consultation program;
- Providing more technical assistance;
- Conducting forums for providers to discuss quality issues; and
- Implementing quality assurance and QI regulations.
Other strategies focused on conducting regulatory reviews to bring provisions up to national standards and tightening standards for assessment, training, and LOC, including:
- Working with providers to develop minimal standards for assessments, service plans, negotiated risk agreements, and disclosure requirements;
- Adding disclosure requirements for dementia care providers;
- Increasing staff training requirements;
- Establishing specific staffing requirements for SCUs; and
- Increasing requirements for a comprehensive resident assessment.
16. Assisted Living: Examples of State Efforts to Implement Consumer Protections. GAO. GAO-04-684. Washington, DC. April 2004.
Staff training requirements are a key component of quality assurance. A national study found that the types of required staff training and orientation varied across facilities, but for the most part, relatively little training was required.19 Three-quarters of unlicensed personnel were required to attend some type of pre-service training or orientation, most commonly lasting between 1 and 16 hours. Only 11 percent of the staff who received required training completed it prior to the start of work; the remainder received on-the-job training or a combination of pre-service and on-the-job training. In contrast, nursing homes aides are required to have a minimum of 75 hours of training (ten days) and to pass an exam before they can work on a unit providing direct resident care.
Staff reported receiving training on -- or an orientation to -- the philosophy of assisted living and how that philosophy differs from traditional nursing home care and other residential care settings. However, the study found the staff were not well informed about normal aging and care for persons with dementia.
States’ regulations specify initial and on-going training requirements for staff and administrators but the level of specificity in the training requirements varies considerably. Some states specify only general requirements, while others specify topics to be covered, the number of training hours required, the completion of approved courses, or some combination thereof.
19. Catherine Hawes, Ph.D., et al. op.cit.
Public Financing of Services
Medicaid is a significant payer of long-term care services. Medicaid expenditures on long-term care comprise 33.2 percent of Medicaid spending (see Table 1-6). States are steadily shifting the balance of long-term care spending from institutional to home and community settings. Medicaid spending for institutional care in nursing homes and ICFs-MR rose from $41.5 billion in 1996 to $60.2 billion in 2006.20During the same period, spending for home and community services (state plan personal care, home health, and HCBS waivers) grew from $11.2 billion to $38.5 billion.21 Consequently, Medicaid spending for institutional care dropped from 79 percent of all Medicaid long-term care spending in 1996 to 61 percent in 2006 for all populations. The percentage of Medicaid long-term care spending on home and community services was higher for individuals with development disabilities (60.7 percent) than for adults with physical disabilities and elders (28.6 percent.)
TABLE 1-6. Medicaid Long-Term Care Spending (in billions)
Much of the growth in HCBS spending has been for services for persons with MR/DD, which account for 75 percent of all spending.
The expansion of home care programs, home health services, and residential care options has afforded persons with long-term care needs a number of alternatives to nursing homes. People with fewer ADL impairments are less likely to enter a nursing home.22 Thus, while the absolute number of nursing home beds increased from 1.8 million in 1985 to 1.9 million in 1999, the rate per thousand persons over age 75 declined from 141 beds to 117 beds, and nursing home occupancy rates dropped from 92.3 percent in 1987 to 87.0 percent in 1996,23 and further declined to 85.6 percent in December 2003.24 See Table 1-7 for occupancy rates in each state.
Declining nursing home occupancy rates create some concerns for states. First, as higher income individuals choose assisted living, the proportion of nursing home residents who are Medicaid beneficiaries increases. Increased reliance on Medicaid creates pressure to raise payment rates to replace revenue formerly received from private-pay residents. Second, excess capacity creates a greater likelihood that Medicaid nursing home expenditures will rise if Medicaid beneficiaries do not have access to sufficient home and community services and must rely on nursing homes at greater expense to the states.
State officials thus have an interest in ensuring that the supply of nursing facilities declines as the supply of home and community services expand. The 1999 U.S. Supreme Court Olmstead decision gives further impetus for shifting spending from institutions to home and community settings. That decision, and guidance to states from CMS, requires that states have plans for serving people with disabilities in the most integrated setting. Additionally, the ruling states that if states have a waiting list for services, the list must move at a “reasonable pace.”
TABLE 1-7. Nursing Home Supply and Occupancy Rates and Residential Care Supply, 2003
SOURCES: Population Division, U.S. Census Bureau. Annual Estimates of the Resident Population by Selected Age Groups for the United States and States: July 1, 2003. American Health Care Association: December 2003. The supply of residential care settings was calculated by NASHP using Census data and data reported by state licensing agencies. (n.a. -- not available).
While some areas of the country, particularly rural areas, have an inadequate supply of residential care facilities, in other areas, developers have over-built facilities. In over-built areas, nursing homes compete with ALFs for market share and residential care facilities compete among themselves for residents. Low occupancy rates in ALFs may lead to greater interest in serving Medicaid beneficiaries, thereby increasing the availability of this service option for low income individuals.
Data provided by Brian Burwell, Steve Eiken, et. al. The MedStat Group. Memorandum, 2006.
Medicaid spending for services delivered in residential care settings is not reported separately.
Jones, A. “The National Nursing Home Survey: 1999.” National Center for Health Statistics. Vital Statistics 13(15) 2002.
Rhoades, Jeffrey A. and Krauss, Nancy A. Nursing Home Trends, 1987-1996. Rockville, MD: Agency for Health Care Policy and Research; 1999. MEPS Chartbook No. 3. AHCPR Pub. No. 99-0032.
American Health Care Association. Based on CMS-OSCAR form 671:F41-F43. 2003.