By most definitions, an assisted living facility is a long-term care facility that provides limited personal care support services depending on the needs of the resident. Unlike nursing homes, assisted living facilities are not governed by Federal regulations. In today’s episode, nursing home lawyers Rob Schenk and Will Smith discuss the regulatory schemes governing assisted living facilities with Eric Carlson, an attorney with @justiceinaging.
Schenk: Hi out there, welcome back. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: And we are your hosts for the Nursing Home Abuse Podcast. As this episode goes to air, it is March 4th. Hopefully if everything goes according to plan, this will go on March 4th, which, Will, I don’t know if you’ve encountered this at all, but you wouldn’t encounter this, I’m not sure, but it’s Hug a G.I. Day.
Smith: I don’t think we call – well it’s the G.I. Bill.
Schenk: I didn’t think about that until literally right now. That only is the Army, because you of course are a Marine.
Smith: No, I mean it’s the Montgomery G.I. Bill.
Schenk: Well G.I. being the name for just a person who was in the military, but I don’t know if a G.I., if that started off as…
Smith: I’ve never heard somebody use the term G.I. in the military or dealing with. The VA. The only time it’s ever used is the G.I. Bill. It pays for our college. But nobody calls anybody else G.I.s. It’s like a World War II thing.
Schenk: Right. As a Marine, do you know what G.I. is short for?
Smith: Government issued.
Schenk: Oh, all right. All right, all right. Will is one of those people that as a Marine, maybe when he’s being introduced at a party or somebody that doesn’t know the difference or somebody doesn’t know his history and they say, “Oh, you need to meet Will. Will was in the Air Force,” or “Will was in the Army,” Will is one of those types of people who instantly, instantly, corrects that person and says, “No, I’m a Marine.”
Smith: Well I would do that for a lot of things. I went to Augusta State University. If somebody goes, “Hey, I heard you went to Valdosta State University,” I’d say, “No, no, I went to Augusta State.”
Schenk: No, no, if somebody said you went to Augusta University.
Smith: But it’s two different things. It’s not – if somebody said you were in the Marine Corp, I would go, “Well it’s Corps.” I’d go, “Whatever.” But if somebody said, “You’re in the Air Force,” no, I wasn’t. I was in the Marine Corps. I mean I guess nothing matters.
Schenk: Who cares. Yeah, nothing matters.
Smith: It’s also coming up on – I almost confused those, Fat Tuesday.
Schenk: Fat Tuesday and International Women’s Day.
Schenk: International Women’s Day – March 8th, this Friday. It’s for all the ladies out there.
Smith: Well, just international women, so no domestic women.
Schenk: Ah, I see what you’re saying. And no women that are not terrestrial. This is not Intergalactic Women’s Day.
Smith: No, it’s International Women’s Day.
Schenk: So if you happen to be on the Space Station, then you’re not…
Smith: Oh yeah. Are there any females up there?
Schenk: I’m sure there’s got to be.
Smith: How many people are up there? Gene, that’s something you can find out.
Schenk: Gene. All right, so interesting topic. There is a lot of confusion. I always say like people are saying or there’s a lot of – I mean, as the listener, you can’t verify what I’m saying, but I’ve seen, in my experience, anecdotally, there has been confusion between the term “nursing home” and assisted living facility. And further confusion about whether or not there’s differences in terms of how they’re regulated. And so to help us parse through these things, we have a special guest on the show, and who is that?
Smith: Today, we actually preview this last week when we were talking to Kelly Bagby, telling her how we were going to have Mr. Carlson on today. Eric Carlson is the directing attorney at Justice in Aging. Now that is a national nonprofit legal advocacy organization that fights senior poverty through law, securing access to affordable healthcare, economic security and the courts for older adults with limited resources. Mr. Carlson has over 20 years of experience in long-term care services and supports including home and community-based services, nursing facility care and assisted living facilities. He counsels attorneys from all across the country, co-counsels impact litigation that protects long-term services and supports consumers, and is the author of the very well known, in our circles, the very well-known legal treatise, “Long Term Care Advocacy,” which is a very useful book for those of us who advocate through litigation on behalf of the elderly.
Anyways, we are very privileged to have Mr. Carlson here today. Eric, thank you for joining the show.
Eric: Thank you, it’s my pleasure.
Schenk: Great. So Eric, as Will was just explaining to the audience, you are a directing attorney at Justice in Aging, and we kind of briefly talked about what Justice in Aging is, but can you kind of give us a breakdown of what you guys do over there?
Eric: For sure. We use the law to benefit and protect older Americans, particularly those people who don’t have very much money. So we focus a lot on Medicaid issues, for example, on long-term care issues, and on the income side, supplemental security income. And we do a lot of different work. The conversation I’m having with you would probably fall under education or conscience raising. I do many trainings, write up trainings, write publications for consumers and professionals, co-counsel litigation, usually against public agencies that are making mistakes on how to handle public benefits programs. We have offices in Washington, D.C., so we do administrative advocacy with federal agencies and also legislative advocacy on Capitol Hill, so just a broad variety of activities to benefit and protect older Americans.
And we’re a nonprofit organization, so it’s about trying to provide services to the general public, not direct services, so people don’t walk into our office for particular complaints, but we co-counsel the large litigation and try to do our work that benefits large numbers of people.
Schenk: Right. Man, you guys are doing great stuff over there. We really appreciate it. Well kind of the reason we wanted you on this episode was to talk about basically the concept of an assisted living facility and the regulations and standards that are required and operating one, the level of care that’s provided in them. So we keep saying that word “assisted living facility.” Can you tell us what is technically or un-technically an assisted living facility and what makes that different from the word “nursing home?”
Eric: Sure. It’s generally considered – I’ll say this and I’ll immediately reverse myself – it’s generally considered a level of care less than a nursing facility, some people who aren’t able to live at home who need assistance but who maybe don’t need the around the clock type of nurse staffing that you get in a nursing facility.
So in saying that, I’ll say that it’s gotten more confusing in recent years. What I said would probably apply more cleanly to things five or 10 years ago, but now assisted living has more frequently people who need a significant amount of care. So assisted living facilities more and more are caring for people who do need some significant level of healthcare expertise, for example. So the line between a nursing facility and an assisted living facility is fuzzier than ever than it used to be.
On the technical side, there’s a different licensure. If you’re in a particular state, the facility has to decide whether it’s licensed as a nursing facility or assisted living facility, and that has effect as far as the government programs that can pay for it. Medicare and Medicaid generally are able to pay for stays in nursing facilities, although Medicare coverage is limited, as you well know. Assisted living is well more likely to be out of pocket payments from people’s savings and what not, some from private insurance and some from Medicaid, although that varies greatly from state to state and tends to be more limited than the Medicaid coverage you see from nursing home care.
Schenk: Yeah, I think Will brought this example up in a previous episode about when people think about nursing homes, they think about “Driving Miss Daisy,” when that’s actually more likely going to be an assisted living facility situation.
Smith: Yeah, because I used to work in nursing homes, and people would ask, they didn’t really understand what it was like. They didn’t understand how hard it was, because I think most people, when they think of a nursing home, they’re actually thinking of an assisted living facility where, at least, and I agree with what you said, a couple of years ago, it used to be individuals that needed very little care and could primarily take care of themselves, although I agree with you that is changing a lot nowadays.
Schenk: And so Eric, we talk on this podcast a lot about nursing homes and the federal regulations and the Georgia regulations that govern nursing homes, but can you speak to whether or not there are federal statutes that would apply to assisted living facilities?
Eric: The short answer is no. You don’t see federal standards hardly at all. In assisted living, it’s generally governed by state law, so it’s very state specific, and I’ll just note that the terminology is even going to change from state to state. Assisted living is just this umbrella term that we toss around, but in some states, these are assisted living facilities or assisted living residences. Some states, they may be personal care homes. Some states, they’re residential care facilities for the elderly or adult foster care. So there’s a tremendous amount of variation from state to state.
A couple years from now, there may be some federal standards dealing with – I don’t want to get too technical here, but there may be some federal regulations that have an impact on assisted living starting in 2022, but it would be relatively limited. It’s still going to be true unless something happens in the meantime that assisted living facilities are governed by state law.
Schenk: And do you have an understanding as to why we don’t have that same level of regulation governing assisted living facilities at a national level? Like why is that the case and actually who’s leading the charge regarding those changes you literally just mentioned that are coming in a couple years possible?
Eric: Sure. Nursing facilities have – probably the biggest thing is there’s been heavy involvement by federal payment sources. So going back to the beginning of Medicare and Medicaid, so into the ‘60s, there have been payments for nursing facility care, and then the federal government was dissatisfied in the quality that they were getting, and of course, the constituents of Congress people were getting really poor care and that led out to pressure around the tissue in the ‘80s, and that led to the enactment of the Nursing Home Reform Law in ’86.
So a large part of it I think is the involvement of federal money over the years and a standardization in the kind of care that’s provided. You haven’t had that level of federal reimbursement in assisted living and you haven’t had that standardization in rules or even models of care. Yeah, you can go from state to state – there are certain similarities, but there’s a significant amount of difference as well from state to state, and all of that makes it a little challenging if you were to think about a broad federal package that would wrap all these assisted living facilities up with specific quality of care rules.
You asked about what could happen in 2022. There are home community based services regulations that aren’t limited to assisted living but cover all Medicaid services funded under home community based services funding, which includes assisted living, which can include adult daycare. And for these purposes, those are maybe the most – and can include group homes. And the regulations that are going to be effective in 2022 are designed to make sure that people in those settings don’t get too isolated, that they’re not in settings that are overly institutional, that they’re still able to get out in the community and live their lives and have freedom within the setting, so that’s the focus of those regulations that will become effective in 2022.
Schenk: That makes sense. So as of today, we’re as a community essentially leaving it to state agencies to regulate and enforce the regulations on assisted living facilities. So in California, for example, where you’re at, what’s the state agency, the state body that regulates them?
Eric: It’s under the Department of Social Services in California.
Schenk: Yeah, because in Georgia, it’s the Department of Community Health. So it’s the love and hate with federalism, you know what I mean? And so you have these grand experiments in the different states, but at the same time, Mr. Johnson in Georgia is falling under a different statutory scheme and a different standard of care than Mr. Johnson that’s living in California.
Smith: Yeah, and I guess it’s also a problem just – I mean in what way would the federal government have jurisdiction over a facility that didn’t take any federal funds? So if there’s…
Schenk: Yeah, that gets into that Con Law 1 issue of the scope of the Commerce Clause, I guess?
Eric: Yeah, interstate commerce. And I will note that nursing facilities, it’s tied to federal reimbursements that the federal law technically – it doesn’t cover all nursing facilities, it just covers nursing facilities that get federal money. It’s just that 90-whatever percent, 97, 98 percent of the facilities take the federal money, so it feels like it’s just across the board, but it’s actually limited to nursing facilities that participate in the federal funding programs.
Schenk: So, Eric, in your experience with Justice in Aging and taking on facilities and agencies, what are some of the common problems that you see in assisted living facility oversight at that state level? Like what are some common problems that you’re seeing these states have with the regulation?
Eric: Let me just put it in the context of things that your listeners may have to beware of, that I think that people make the improper assumption that assisted living facilities just take care of things, that they’ve got everything covered, and once you’re in an assisted living facility, that your needs are going to be met. And that’s not necessarily true, that they may have limited capacity and particularly depending on what state you’re in, there may not be as much healthcare expertise there. And you may not – it may not be clear exactly how long you’re going to be able to stay.
And facilities sometimes try to cut this to try to have it both ways. They’re always talking about flexibility. When you talk about standards, facilities will jump up and argue, “You’re killing us here because assisted living is based on a flexible model of care and it’s all about the ability to adapt to people’s needs. We’re not in a regulatory straight-jacket like nursing facilities,” etc., etc., but the standards are loose enough that oftentimes that turns out to be to consumer’s detriment, because the facilities may not be staffed very well. They may not have the expertise or they may decide at some point that they don’t want to care for somebody anymore and depending again what state you’re in, the regulations may give them the authority to make these broad statements that we cannot meet your needs any longer.
So I would say that’s the biggest problem that the regulations tend to be written in very loose ways that give providers a fair amount of discretion, and if they exercise that discretion in a good way, then it’s very positive, but sometimes of course, many times, of course, providers don’t, and consumers end up with the short end of the stick.
Smith: I have a question. I know that we’ve talked about, and this makes perfect sense, that regulation of a lot of facilities is tied to federal reimbursement. Is there a move out there or are people trying to think of something other than federal reimbursement to gain federal oversight of facilities that may not get reimbursed? Like is there a consumer protection issue? An elder law issue? I don’t know. The answer may simply be no.
Eric: I can say that among the advocacy community, I think there’s more interest in focusing on federal reimbursement. It actually is broader than it used to be. I can’t speak in every state, but the argument is easier there if you say, “Here’s the federal government spending a significant amount of money that over two-thirds of the state have some sort of federal reimbursement for Medicaid, so there’s a clear trajectory there. And then the federal government really, tiny exaggeration here, but really doesn’t know at all what’s going on regarding quality of care. The state in the communications just promises the federal government that the state has it under control, that it has licensing regulations and that’s it, okay, fine, here’s X number of millions of dollars.
And when problems come up, then at some point, if people in the federal government, in Congress say, “Well what do you mean you don’t know what’s going on? How can you be spending this much money? How can you be, and in a problem that’s meant to set up alternatives to nursing facilities, so we’re for increasingly funding assisted living and other programs as an alternative to nursing facility care, but we, the federal government, don’t have any control over the quality? That doesn’t seem like a good arrangement.”
So that’s my long-ish answer to your question. I think in the advocacy community, the focus is still on the facility, will be on those facilities that federal reimbursement because absent that, it’s just a much heavier lift to apply federal standards to every facility across the country, let’s say.
And the other thing is that the federal money goes exclusively to facilities who are prepared to care for people who need the equivalent of nursing facility care, so it’s a little bit easier to talk about standardized, higher standardized standards there, because those are people by definition who have some pretty significant care needs.
Schenk: So what are some of the major problems that you’re seeing from assisted living facilities from an institutional level, for example like do you see a lot of assisted living facilities advertising themselves at a certain level of care, and in reality, like you said, the families are confused and don’t realize this is not a nursing home. Their level of care being provided is not going to be as high? Like something along those lines in terms of assisted living facilities not living up to the bargain or doing something wrong that you’re seeing that’s common?
Eric: Yeah, I think you, in the worst situations, you see some of the same kinds of problems you see in nursing facilities. You and your listeners might certainly be familiar with some of the standard nursing facility problems, the dehydration or the bedsores, falls, issues like that, medication issues, medication mistakes. So you may see problems like that in assisted living in part because you don’t have the same level of healthcare expertise that you’re going to get in a nursing facility. And those problems can happen in nursing facilities and of course they can happen in assisted living as well.
So that’s the sort of thing you see that may give you real horror stories, where the need of the resident far outstrips the true capacity of the facility. They’re over their heads. They’re not competent. Maybe they knew they weren’t competent and it just got away from them a little bit, and that’s where you see issues. In the regulatory system, again, varies state to state, may not be up to it because it may not include the same level of healthcare expertise, and then finally, sometime the management may not be up to it as well. Nursing facilities, for better or for worse, come from a healthcare background, and you tend to have people around there who are familiar with healthcare. Some of the assisted living people come from the hospitality industry, the hotel folks or real estate people and don’t necessarily have the background in healthcare.
Schenk: Right, right. Well all that being said, other than having a sit-down and making sure the family understands what’s going to happen to their loved one, what are some of the most important factors to consider when looking for an assisted living facility?
Eric: I would pull the public file and see, again, how useful this is is going to vary from state to state, but pull the public file and see what deficiencies there are. I would have the conversation with the facility specifically about the particular person that’s interested in moving in and what the person’s needs are and what they can do. Get some specificity about what they can care for and what they can’t care for. Be more intentional in talking about care needs. I think a lot of the long-term care facility situations, people don’t focus on those things, it seems difficult, they end up walking around and try to judge how well the building is maintained and whatnot, and it’s better to dig into the nitty gritty a little bit and talk about healthcare, about incontinence, about assistance with activities of daily living, just some real routine, basic issues that come up in a long-term care setting and try to take the temperature of the facility.
And they should be able to have those conversations. They should be able to talk about their training and their capacity, and again, people don’t do that. They don’t look far enough down the road, and I understand, it’s easier for me to say that than it is for people to do it in practice, but I do think you have to be a smart consumer about these things and be relatively clear-eyed about what the future might hold and to think about those things and to talk about them.
And then also talk with other people in the community. This is the best-case scenario – oftentimes, people don’t have this time, but it’s a big decision. It’s an important decision and if people spend days or weeks or whatnot figuring out what car, television, whatever to purchase, then they might want to put that level of focus on the long-term care facility as well, because it does make a big difference and it’s important if you can go into that decision with some resources and with enough time to make some choices.
Smith: Yeah, 100 percent, man, and I think you hit the nail on the head that if you’re spending time figuring out what is the best car for you or where to go on vacation or any number of the number of things we can do nowadays as consumers with the Internet in addition to getting up and going somewhere to checking things out, then you should be able to do that for your loved one. I mean you wouldn’t put your child in a daycare that you didn’t set foot in or you didn’t do some investigation on. And the same thing goes for our parents and our elderly relatives and I really am a huge advocate for people really digging into a place. Go there. Talk to the residents. Talk to the staff. Talk to other people. Yeah, 100 percent am with you on that.
Schenk: Eric, I understand your organization isn’t just going to represent anybody off the street, but if anybody has any questions for you or for your organizations, how can they get in contact with you?
Eric: Probably email’s the easiest, and it’s first initial, last name, firstname.lastname@example.org. Also I’ll give a plug to a publication that we should have revised in the next month, I would hope at least. It’s currently on our website as “20 Common Nursing Home Problems and How to Resolve Them,” and the new version is “25 Common Nursing Home Problems and How to Resolve Them,” and it’s written and it just needs to be fine-tuned a bit and laid out. So people can look for that in the very near future.
Schenk: And we’ll have that on the screen so people can see it.
Smith: Yeah, and we also, it’s not something quite as friendly to the regular non-attorneys with loved ones in a nursing home, but we also gave a plug to the “Legal Treaty Long-Term Care Advocacy” with Matthew Bender and company. That’s a big deal for all the attorneys out there. I think it’s also something that can also be useful to ombudsmen. It’s just a monster of a book on touching every issue of long-term care advocacy, so it’s extremely useful.
Eric: Great. I appreciate hearing that.
Schenk: Well great, Eric. Thank you very much for coming on the show. That’s a lot of great information for our listeners out there. You’ve got certainly a lot of expertise and we’ll probably have you back on the show at some point.
Smith: Yeah, absolutely, man. Go ahead.
Eric: That’d be my pleasure.
Smith: And keep fighting the good fight, Eric. We really appreciate it.
Eric: I will do that. You too.
Smith: All right, take it easy.
Schenk: Thanks, Eric. Do we – we have multiple copies of that book, right? The Legal Advocacy book?
Smith: Oh yeah.
Schenk: Yeah, that’s a good one. But that’s more geared towards, as you said, the legal community.
Smith: And it’s also interesting that he is the – there are two Carlsons that have in-depth treatises on legal issues.
Schenk: Wait, wait, don’t tell me. Evidence.
Smith: Carlson on Evidence.
Schenk: I knew it! And that’s not even an edit either. It’s not like I stopped it and I looked it up because I have that form book.
Smith: Yeah, Carlson on Evidence and Carlson’s Long-Term Care Advocacy.
Schenk: I feel like we really covered all the fun stuff at the beginning of the episode.
Smith: We did.
Schenk: Like Hug a G.I. There’s really nothing…
Smith: Fat Tuesday for Mardi Gras.
Schenk: Nowhere else for us to go now.
Schenk: International Women’s Day – that’s not the socialist, like I always forget this. Like it has a socialist background to it.
Smith: Yeah, like International Workers?
Schenk: International Workers Day is May 1, which I want to say the genesis of that was the Haymarket Riot. But Women’s Day, I can’t remember if that was started because of a – something that happened to women in a factory?
Smith: Yeah, it sounds like it. I feel like most international things are more socialistic.
Schenk: Yeah. Anyways, all right, so I guess that’s going to conclude this episode of the Nursing Home Abuse Podcast. You can catch new episodes every Monday morning on your favorite podcast application or you can choose to watch the episodes, and you can do that either on YouTube or on our website, which is NursingHomeAbusePodcast.com. We highly recommend that you go check out “25 Common Nursing Home Problems.”
Schenk: And read it and put it to everyday use. And with that, we will see you next time.
Smith: See you next time.