Think Tank

How Should California Regulate Growing, Changing Assisted-Living Industry?

joint hearing of the Senate and Assembly Human Services Committees last month examined the growing and changing assisted-living industry in California.

The hearing included testimony from witnesses who contend California’s oversight has not kept pace with the evolving industry which promises to grow faster as aging baby boomers lose the ability to care for themselves.

Dozens of deaths and injuries have been attributed to sub-standard care at California residential care facilities for the elderly — known as  RCFEs — in the past six years. In San Diego County alone, 27 assisted-living residents died since 2008 as a result of injuries or neglect stemming from poor care, advocates said.

Some experts contend California’s oversight of the assisted-living industry was less-than-robust even before funding cutbacks in recent years reduced the state’s ability to monitor the facilities.

Some stakeholders contend that state regulations need strengthening to give health officials sufficient clout to protect consumers. They point out that under current regulations neglect or abuse are punishable by a maximum fine of $150.

The assisted-living industry is overseen in California by the state Department of Social Services under legislation passed in 1985. However, in the years since the Residential Care Facilities for the Elderly Act was signed into law, the industry has changed considerably, growing in scope and taking in residents with greater health care needs.

According to a new report from the National Senior Citizens Law Center — “Best Practices in Assisted Living: Considering Potential Reforms for California” — California regulations are about two decades behind the changes in the industry.

We asked experts and stakeholders how California should regulate and stay abreast of the growing, changing assisted-living industry. We got responses from:

Strengthening Regulatory Foundation

The landscape of care for the aging has markedly evolved. For many reasons, many people who used to be cared for by family at home now rely on the care of others, often in licensed facilities. That cultural shift coincides with a significant shift in the delivery of health care, which is now primarily “managed” as outpatient care.

Further impacting this area is the Olmsted decision’s clear articulation of the right of individuals to receive care in the least restrictive setting possible.

How should the state respond to this changing landscape? First, we must live up to the well-founded expectation that licensure by the state means there is a working process of oversight, safety and protection of consumer rights by enforcing the law. The economic reality of recent years has challenged our responsiveness in ways that we need to change. Even a robust periodic inspection system must rely heavily on the participation of those who are living in or visiting these facilities on a regular basis to alert us if they believe something is amiss. We have to be responsive to those concerns.

As part of the state budget, Gov. Jerry Brown’s (D) administration has proposed significant changes to restore capacity in this system by increasing training for staff, ensuring quality assurance and accountability, improving how complaints are handled and strengthening enforcement by significantly increasing fines. These changes are strategically designed to rebuild and strengthen areas that are foundational to a strong oversight system.

Second, we must acknowledge that the statutory and regulatory framework that governs the oversight of assisted living facilities has not kept pace with the changes in culture and practice. The distinguishing characteristic of residents in assisted living as compared to patients in nursing homes is not their medical conditions, but whether they receive direct medical care from outside professionals or directly from the facility staff. New policy needs to be developed

in this area to ensure that residents’ medical needs are being met, while allowing them to continue to live safely in their residence of choice. This will require significant policy development involving the stakeholders, the Legislature and the administration.

Many of the proposed changes in licensing will take place immediately; others will take time, resources and significant effort. For those who entrust themselves or their loved ones into the care of others, we are committed to helping them be secure.

First, Most Important Step: Involve Residents

There is widespread agreement that the state of California’s assisted living facilities and the oversight provided by the Department of Social Services together represent a dysfunctional system. Recent news stories and attention from the Legislature in the form of public hearings have helped to bring this sorry situation of care deficiencies and ineffective regulation to the attention of the public.

There is no shortage of well-considered suggestions for what is needed to correct the many compelling problems including National Senior Citizens Law Center — “Best Practices in Assisted Living: Considering Potential Reforms for California” and California Advocates for Nursing Home Reform — “Residential Care in California: Unsafe, Unregulated & Unaccountable.”

If all concerned are unanimous in agreeing that the status quo is unacceptable, what’s next? Hopefully DSS will get the resources and find the will to fix what ails us. But to be effective in moving forward with a long-term solution, they must find a way to involve residents of these facilities. For too long, policy development has been the purview of the providers. If this industry is to get back on track, the conversation between regulators and providers must be expanded to include residents as a party of equal interest and importance.

As the only organization to represent residents of continuing care retirement communities (covered under the RCFE licensure category), CALCRA has had first-hand experience of being patted on the head and then ignored when attempting to engage with administrators at DSS.  It’s one thing for the department to issue the required polite acknowledgment of resident concerns coupled with the vague promise of working together in some ill-defined future, but there has been no follow-through to breathe life into these sentiments.

This situation did not occur overnight. It is the result of years of funding cuts and staff shortages. It was absolutely predictable that we would be faced with this crisis. If effective fixes are to be made and lapses not repeated, DSS will have to find a meaningful, creditable way to bring residents into the process. 

Legislature Responding with Array of Bills

The California Legislature is providing some long overdue scrutiny to residential care for the elderly following increased media attention in 2013. The media reports explored dozens of outrageous cases of poor care leading to resident abandonment, injury and death, all enabled in part by insufficient state oversight.

The crisis in care has many causes but three are particularly important:

1. The RCFE statutory/regulatory system was created in 1985 and is based on a social model in which residents with minimal needs receive light assistance with some activities of daily living and supervision. This model is hopelessly outdated. Nursing homes have since focused on short-term intensive rehabilitation residents, sending elderly people with chronic health conditions such as diabetes, COPD, and dementia, and other longer-term care needs into RCFEs. At RCFEs, these residents are essentially receiving health services from aides with no health care training.

2. The number of RCFEs has exploded. Since 1990, the number of RCFEs has nearly doubled from approximately 4,000 to nearly 8,000 today. The growth of RCFEs reflects the well-publicized statewide growth of our elderly population. As the number of seniors has grown, particularly seniors living with chronic conditions or disabilities, RCFEs have proliferated to meet their residential, service and increasingly, their health needs.

3. While the number of RCFEs and RCFE residents has grown dramatically, state oversight has been substantially reduced. State inspectors have gone from visiting RCFEs twice a year to once every five years, an incredible reduction in presence that has predictably led to cases of extreme neglect and terrible care. To make matters worse, the state now uses abbreviated, “drive-by” inspections averaging two hours or less.

Fortunately, the Legislature has responded to the reported crisis in care with a diverse and deep array of bills aimed at various RCFE problems. The bills, known collectively as the RCFE Reform Act of 2014, will:

  • Modernize state oversight by increasing inspections, making complaint investigations more efficient, and enhancing fines and other penalties for breaching care standards;
  • Require better training for facility staff and administrators; and
  • Empower consumers by creating an on-line consumer information system, a resident bill of rights, and strengthening resident and family councils.

Care Should Be Delivered in Most Appropriate Setting

Aging people — and their right to obtain quality care in the most appropriate setting — should be at the center of any discussion surrounding the regulation of residential care facilities for the elderly. It’s important that seniors who are mentally and physically able have the choice to live in a community-based setting where they receive non-medical care, with limited supervision. 

However, too many RCFEs have become quasi health-care providers, serving residents with the same acute medical conditions as skilled nursing facilities or hospitals.

The process of aging and the loss of ability to perform activities of daily living like bathing, toileting and eating differs from person to person, but California has a “one size fits all” approach to regulating RCFEs which is no longer adequate. RCFEs are not structurally designed or regulated by the Department of Public Health to provide continuous nursing care. 

While it may be appropriate for assisted living residents with medical conditions that are expected to clear up to receive short-term IV therapy, it’s unacceptable for those with evolving, complex medical conditions, like pressure ulcers, to be in a setting where they can’t receive comprehensive wound care that includes a proper diet, prescription medicine, nurse oversight and constant re-positioning. At some point, while the resident may want to stay in the RCFE, it may not be the most beneficial placement for his or her health care needs. 

If a resident needs 24-hour nursing care, the correct choice is a regulated, skilled nursing center, where 24-hour care is delivered by licensed, trained staff who must comply with hundreds of federal and state health and safety requirements.

Tighter regulations and higher performance expectations have resulted in California achieving the highest number of five-star nursing homes in the nation. In fact, 58% of the state’s nursing homes are ranked with four or five stars. California nursing centers also perform better than those in 36 other states in lowering the use of unnecessary anti-psychotic medication.

The growing population of higher acuity residents requires lawmakers and regulators to analyze and develop regulations and placement guidelines so our seniors can access the quality care they deserve in the most appropriate setting. 

Training, Regular Inspections Are Key

Assisted living is a vital part of the state’s system of long-term services and supports, providing needed housing, care, and supervision to as many as 175,000 elders each day. Assisted living communities offer the support and access to health-related services that enable elders to remain as independent as possible in the least restrictive setting possible. Resident satisfaction is high as consumers seek a model of care that promotes choice, independence, and flexibility.

The California Assisted Living Association (CALA) is committed to protecting and preserving what works in this model and strengthening the areas that need it. 

Regular inspections are the cornerstone of the oversight system. We need to restore annual inspections to add to the system’s integrity, promote public confidence, and demonstrate the overall compliance within this model of care. CALA has long advocated for this. Along with regular inspections, we also need to be sure that the state’s analysts are adequately trained to conduct those inspections. Their training, along with that of their program managers, has been systematically cut and must be restored.

We also believe that adequately trained staff members are the cornerstone of quality care, and that training for assisted living administrators and caregivers is equally important. That is why CALA is co-sponsoring AB 1570 by Assembly member Wesley Chesbro (D-Arcata), which increases the training requirements and hours for all assisted living caregivers. The bill also requires memory care training for caregivers in recognition of the prevalence of memory care needs among assisted living residents. In addition, AB 1570 dramatically increases the training requirements for assisted living administrators and requires the state to strengthen the administrator certification test. Although many providers already exceed the current regulatory requirements, the laws should be updated to reflect today’s reality.

Assisted living grew out of consumer demand for more residential care options. People wanted choices. No longer does a diagnosis of dementia, the use of a wheelchair, or the decision to use hospice care at the end of life call for institutionalization. We must make sure the infrastructure supporting care in residential settings is strong and appropriately funded.

More Oversight, Real Penalties for Infractions

I truly believe in the importance of strong safeguards and protections for residents of long-term care facilities. In the early days of the Long-Term Care Ombudsman Program, Arthur Fleming, the first commissioner on aging at the U.S. Administration on Aging said, “Our nation has been conducting investigations, passing new laws and issuing new regulations relative to nursing homes at a rapid rate during the past few years.

“All of this activity will be of little avail unless our communities are organized in such a manner that new laws and new regulations are utilized to deal with the individual complaints of older persons who are living in nursing homes. The individual in the nursing home is powerless. If the laws and regulations are not being applied to her or to him, they might just as well not have been passed or issued.” 

Although Fleming was speaking about nursing home residents, his words apply to residents of residential care facilities for the elderly.

In my opinion, Community Care Licensing (CCL) must increase the frequency of visits from its current schedule to a minimum of an annual, comprehensive visit to facilities. Once every five years is simply too long an interval. Without regular inspection and monitoring, facilities lose the opportunity to interact with regulators who can identify and help them correct deficient practices. I believe there is a direct correlation between the frequency of visits from the regulatory agency and quality of care. I believe that CCL needs the resources necessary to conduct annual, comprehensive reviews of all facilities.

I believe that the state needs to increase and collect meaningful penalties for violations of deficient practices. These penalties should be commensurate with the violation and the actual harm caused to residents.

The Long-Term Care Ombudsman Program is also part of the solution to improving care. Ombudsman representatives play an important role in promoting quality care in facilities. We address the root causes of problems and work to resolve these problems at the lowest level possible within the facility, often avoiding the need to refer a matter to CCL. It is my belief that local ombudsman programs are cost effective and positioned to resolve resident complaints. Restoring state general fund support of the Long-Term Care Ombudsman Program is critical to carrying out our role in improving quality of care.

Need for Data-Driven Practices

The primary focus surrounding California’s RCFE industry is policy reform.  We at Consumer Advocates for RCFE Reform (CARR) believe modification of regulatory language may do little to affect the performance of facilities without accompanying improvements to the oversight and enforcement practices of California’s Department of Social Services.

CARR’s five years spent reviewing the public documents strongly suggests a department significantly weakened by the absence of evidence-based practices. 

DSS does not make use of facility compliance data or the department’s own internal performance data to inform their policies or practices. CARR’s analysis of this data suggests this is a major shortcoming that impacts departmental operations and jeopardizes safety within RCFEs. The resultant patterns reveal compliance and accountability issues have just as much to do with outdated regulations as does the organizational culture of DSS. This raises questions about the department’s effectiveness as a regulator. Samples include:

  • How can unfounded complaints about one DSS licensing program analyst (LPA) reach 78% when the average of others rests closer to 30%?  This data proved to be predictive of the San Diego regional office’s bribery scandal. Without this data, these nefarious practices went undetected by the program manager. 
  • How do some LPAs repeatedly cite certain ulcers as incidental medical services while others cite them as a personal rights violation resulting in serious injury which triggers a $150 penalty? This lack of consistency is problematic as it prohibits the state from issuing a penalty for a 2nd violation within a 12-month period and further restricts the department’s ability to proceed with license suspension or revocation for poor performing facilities.
  • Why does DSS not modify educational requirements for LPAs to include a background in social services or health care when most facilities are authorized to care for a medically-needy resident?  How can LPAs oversee medical conditions without medical backgrounds?

These illustrate the tip of the iceberg, but highlight the deleterious effects of DSS operating blindly. As mentioned during the Senate hearings, DSS operates with a non-integrated IT system that is not designed to track individual pieces of data. As long as data is not the driving force behind policy and practice, policy reforms will continue to be based on anecdotal evidence, resources will be misallocated and the discretionary and random application of state law will persist. If California is to elevate and sustain quality in residential care, evidence-based practices must become an integral component of DDS operations.

California 20 Years Behind Times, Residents at Risk

California’s assisted living system is decades out of date. As a result, the state’s assisted living residents — elderly and generally vulnerable — are increasingly at risk from substandard care.

California’s assisted living law dates to 1985 with the enactment of the Residential Care Facilities for the Elderly Act. At that time, most RCFE residents required relatively limited assistance, and regulatory standards were correspondingly limited.

Since the 1990s, however, the nationwide development of assisted living has transformed facility-based care. Before then, persons with significant care needs lived in nursing homes. With the advent of assisted living, however, residential care facilities began to house residents with significant needs.

In response, most states have enacted assisted living laws that balance a non-institutional environment with elevated care standards.  California, however, has responded only fitfully.

California’s initial staff training standards remain minimal: 10 hours only. Also, care for many health conditions depends on the resident providing self-care, or receiving care from an “appropriately skilled professional,” who may or may not work for the facility.

In other states, facility standards track residents’ needs. Arkansas, for example, licenses assisted living at two levels. Only Level II facilities can house residents who need a nursing-home level of care, and the Level II rules are accordingly more demanding.

Other states also have staff training minimums that far exceed 10 hours. For example, Connecticut and Washington each require an initial 75 hours, while the minimum is 40 hours in Kansas and 26 hours in Florida.

California officials refer to these deficiencies in a recent budget request. Citing consumers’ “increasing demand for health care delivery and management of medical conditions” in RCFEs, state officials acknowledge that “the regulatory structure has not kept adequate pace.”

Change is imperative. The state and stakeholders must look beyond a one-size-fits-all model and consider how standards should vary with residents’ needs or other factors. Also, standards should require an appropriate level of health care expertise. When done thoughtfully, incorporation of health care expertise improves assisted living and does not, as sometimes argued, turn these facilities into nursing homes.

Problems have been festering for some time, and reform is overdue.  The first step is to begin an honest discussion of the current system’s weaknesses and available options, with the goal of re-making the regulatory system by 2015.