Using Medicaid to Cover Services for Elderly Persons in Residential Care Settings: State Policy Maker and Stakeholder Views in Six States. III. Summary of Interviews

In addition to consulting with ten state staff and policy makers regarding the technical details of the state's programs, we also interviewed four of them. In addition, we interviewed nine stakeholders, including representatives of residential care provider associations, consumer advocates, the state ombudsman program, aging services providers, the state agency that administers the home and community services program, the state office of a national advocacy association for seniors, and a former state administrator (now a long term care policy consultant.)

The interviews focused on respondents' views about several key areas and issues. This section summarizes their views and provides illustrative examples of their responses. These comments are not verbatim quotes, but have been paraphrased to protect the respondents' anonymity and edited for brevity. A list of information sources for the state description and the individuals interviewed can be found at the end of this summary.

• General Comments About the State's Residential Care System

  • Because residential care facilities serve both private pay and Medicaid residents, a few respondents expressed views about the industry as a whole, and about particular issues the long term care system is facing, including a liability insurance crisis.

    • Litigation has been occurring more and more in the nursing homes and is starting in assisted living facilities. Texas is usually named alongside Florida as being in the same litigation crisis. ALF licensure does not require liability insurance, but nursing facilities will be required to have liability insurance as of September 2003.

    • Providers will challenge the State on liability issues. The 2003 legislative session is going to address tort reform.

    • An error in the regulations has led to increased liability for providers. The current regulation states that assisted living providers are responsible for care and services. It is supposed to say that providers are responsible for coordinating all care and services. Often, assisted living facilities do not provide the services themselves, but arrange for them to be provided by outside entities.

    Several expressed satisfaction with the state's efforts to involve all stakeholders in the regulatory process and for keeping them informed.

    • The State was very inclusive in seeking input before it promulgated the assisted living rules. Agencies, providers, and advocates/consumers have always had the opportunity to discuss their concerns about regulations. Consequently, the regulations reflect the intent of the legislation because of the good communication. The State has built a framework for assisted living in terms of regulations and has built in accountability.

    • The state operates an informative website for providers that is very good at keeping them current on new policy and regulatory changes. Providers also appreciate the availability of training sessions. There are some concerns about the quality of training for CBA wavier case managers.

    One respondent expressed concerns about unlicensed assisted living facilities.

    • There are approximately 3,000 small unlicensed facilities that are receiving SSI payments. Some are operating legally by not providing services, but others are offering and providing substandard services illegally.

    Another was very pleased with the state's approach to nurse delegation.

    • The state has been very progressive in moving towards nurse delegation. This is very important given the nursing shortage, the higher cost of nurses, and the potential for over-medicalization in ALFs.

• General Comments on Medicaid's Role in Residential Care Settings

  • There was a consensus among all those interviewed that the CBA waiver program was a very good program and that coverage of assisted living was a success for a variety of reasons.

    • The assisted living program has made extraordinary progress and is considered a model for other states. For example, our mandated disclosure statements are being used by other states.

    • The state has met its goals of supporting individuals' desires to live in an integrated community setting under the CBA waiver program and in Community Care (which covers those receiving personal care services not under the CBA waiver). For some advocates, living in an ALF is not considered to be a true choice because clients overwhelmingly prefer their own home. However, because some individuals may not have homes, the ALF option is still necessary.

    • The State and legislature put forth a good effort to meet the Olmstead requirements through Rider 37, which has enabled those in nursing facilities to transition into the community and to receive CBA waiver services. We felt very strongly that efforts to move those in nursing homes into community settings--including ALFs--was critical.

    • There were fears that the nursing home industry might fight the continuation of Rider 37. However, the state has to support the Olmstead decision, giving some "teeth" to the State agencies' support for the continuance of Rider 37.

    • The most successful aspect of the program is the ability of individuals to age in place, the stability of the CBA waiver program staff, the ease in managing the CBA waiver program compared with other states, and the willingness of CBA waiver staff to listen to provider concerns and to address them whenever possible.

    Two respondents mentioned that the room and board payment for Medicaid waiver clients was not sufficient to cover the costs and needed to be addressed.

    • Many of the non-profit providers receive supplemental funding and contributions from members of churches, faith-based organizations and foundations. The state has asked for a state supplement for room and board to be funded in recent legislative sessions, but has not been successful. It's not likely to be approved in the next legislative session due to the large budget deficit.

    • The state should adopt a state supplement for room and board as exists in other states, which could lead to an expansion of providers if additional CBA waiver slots were funded.

• Licensing and Regulatory Requirements

  • There were some issues among those interviewed regarding the content of the state's licensing and regulatory requirements for ALFs, although no one felt that regulations posed a major obstacle to affordable assisted living in Texas.

    • The legislature has moved to set up a more punitive environment related to the assignment of administrative penalties (fines), in part because the legislature has come under increasing pressure from advocacy groups concerned about care and searching for more complete regulations.

    • Over the past three legislative sessions, we have advocated for quality standards and enforcement tools.

    • I am concerned that ALFs are moving too much towards the medical model, with the result that the facilities will turn into nursing homes, much like the old intermediate care facilities we had pre-OBRA 87.

    • There is a need for regulations that focus on the services people need. The current licensing standards are too focused on life/safety code distinctions.

    • Many providers do not have well developed and realistic plans for how they would care for someone in an emergency

• Admission and Retention Requirements and Aging in Place

  • A number of respondents expressed concerns about admission practices and the need to assure that people can age in place.

    • Fire and safety regulations have made it possible for facilities to deny residence to individuals in wheelchairs. One provider claimed he couldn't admit people in wheelchairs, because they would "knock down" other residents, especially in an emergency.

    • Some ALFs might be creaming the lesser impaired because they don't want to take care of people with higher levels of care needs.

    • Some providers are willing to take clients who need higher levels of care, but they don't want to deal with more accountability standards.

    • Providers are required to make an assessment decision within 72 hours, which is too short a time. Facility managers and staff want to meet a prospective client in person to make decisions, which is difficult to arrange within 72 hours, especially if the client lives in another area. Another problem is that facilities are pressured to take clients that "don't fit" with the current facility population or that have heavier care needs than is desirable for a particular facility at a particular point in time. For example, one facility was pressured to take a 350 pound man prone to falls who also had a very large service dog.

      The CBA waiver contract managers recognize that some clients have particularly difficult needs or problem behaviors, but the CBA waiver requirements--not licensing and regulation--require their admittance. I admit, though, that if the requirements were not there, and providers had full choice in admittance decisions, discrimination would likely occur.

    With regard to discharge policy, one respondent reported that it was hard to discharge people from assisted living facilities, but noted that the state was getting better about supporting facilities who had really difficult cases.

    • There is a need for regulatory support for aging in place. I strongly promote the chance for individuals to age in place, but I also recognize that facilities who serve individuals needing higher levels of care are required to pay more attention to fire and safety standards.

    • CBA waiver clients with Alzheimer's are most at risk for not being able to age in place in assisted living facilities due to extreme problem behaviors and the inability for Medicaid to pay for full-time private sitters that some of the private pay clients have. Caring for these people is so expensive that most facilities don't want them and they wind up in nursing homes.

    Respondents felt that the issues related to aging in place were far from settled, with some providers liking the concept and others not. Most supported the concept but had concerns about its implementation.

    • The state recently instituted new regulations that will allow more people to age in place by allowing short term nursing services to be provided (24 hour skilled nursing is not provided normally). Aging in place is a relatively new concept and providers are still learning the consequences and benefits.

    • I have concerns that some providers might not have the capacity to really support aging in place.

    • There have been a few cases of residents inappropriately kept in an ALF, although these were mostly small providers that might not have had a full understanding of how to safely maintain clients.

    • It's easier to age in place in an ALF that is part of a continuing care retirement community.

    • CBA waiver case managers fairly often pressure facilities to retain a client even though the client's behaviors or conditions allow the facility to remove that individual under current licensing and regulations.

    • Several respondents remarked that some providers felt that their facilities would be stigmatized by accepting CBA waiver clients. One has spoken with providers not involved in the program who cited "red tape", financial risks, and fear that the facilities will be known as the "Medicaid house" as reasons for not accepting waiver clients.

• Barriers to Serving Medicaid Clients in Residential Care Settings

  • Respondents noted a number of barriers, which are discussed in turn.

• Suggested Changes to Improve the Medicaid-Funded Residential Care System

  • A few respondents did not make specific suggestions about Medicaid, but instead noted that there were general areas that the state needed to pay more attention to.

    • With increased emphasis on aging in place, more attention to quality might be needed in ALFs. There have been some reports that the quality issues in ALFs--regarding food, activities, and staffing--are similar to those in nursing homes.

    Others had very specific recommendations.

    • CBA waiver cost-neutrality should be determined on an aggregate rather than individual basis. Therefore, if one individual's cost for remaining in the community in an integrated setting was higher than the nursing home payment, that individual could remain eligible because overall cost neutrality would be upheld.

    • More education is needed for discharge planners so they will present the full range of options for living in an integrated community setting. While assisted living services should be part of the CBA waiver program, they should be alternatives to nursing homes, not the wing of a nursing home.

    • More staff are needed in ALFs. Greater attention to quality and oversight is given to nursing homes than assisted living facilities due to resource constraints and the need to give priority to clients in higher levels of care.

    • The state needs to improve the screening process to make sure that clients are set up for the most appropriate services based on their needs. It also needs to increase coordination to support a streamlined point of access into the CBA waiver program. Administrative and contracting processes should be simplified so that the grandmother seeking and receiving CBA waiver services and the child and mother seeking and receiving TANF assistance could go into the "same door" to seek and receive services.

    • The state needs to do a better job marketing and promoting the CBA waiver program to providers. It also needs to reduce the duplication of effort that results from multiple agencies being involved (licensing/regulation and CBA waiver program staff). The state could also be more flexible in its paperwork requirements. For example, the state requires hand-written ledger forms whereas a company may operate a computerized form. Similarly, the state requires a daily service delivery record whereas a company authorizes a service plan for each client that identifies the service and how many times a week it will be provided.

    • The state should develop an extensive comprehensive assessment process that all providers would use. Some providers do not know what they are looking for when conducting pre-admission assessments. This is more an issue for private pay clients, because for CBA waiver clients, the DHS managers and home health nurses are involved in the admission decision process with the providers.

• Future Plans

  • A number of respondents mentioned ongoing activities related to the Olmstead decision.

    • There are many advisory boards operating at the state level that are discussing long term care and Olmstead issues, with providers, consumers and advocates working together.

    • The appropriations Rider 37 has supported the Olmstead decision and allowed more than 900 nursing home residents to move into their own homes and ALFs. The state is asking for more CBA waiver slots in this next legislative session a continuation of Rider 37.

    • There is a pilot study using Olmstead relocation specialists to provide individuals in nursing homes with information on the full range of community options.

    A number of respondents mentioned regulatory issues that the state is planning to address.

    • The state is aware of provider concerns with the 120 day bed hold rule and draft new rules are coming out shortly. Stakeholders are appreciative that the state shares draft rules to obtain input.

    • Draft CBA waiver rules were due to be circulated to providers months ago. The focus of these regulations is to increase the ability of assisted living residents to age in place, and to develop a monitoring process that involves more site visits and interviews rather than just fiscal and process reviews. While more operationally difficult, this type of review would yield more information on service outcomes. The licensing staff are more used to surveying facilities, but the State CBA waiver program staff are less familiar with this type of review. Both they and the providers are going to need training on the review process.

    • The state is developing a standardized care assessment process.

    Another mentioned the state's ongoing data monitoring activities.

    • The state is tracking individuals transitioning out of nursing facilities into the CBA waiver program. Because their funding is supported by the nursing home budget, the state wants to see if there are cost savings, or whether those leaving the nursing facilities are merely replaced by new Medicaid clients.

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