Assisted living’s real problem: Staffing and acuity, not lack of regulation

by Neville M. Bilimoria 

Dec. 17, The Washington Post published a special investigation highlighting dozens of assisted living resident deaths across the country due to wandering or elopements.

As a result, Sen. Bob Casey (D-PA) scheduled a hearing before the Senate Special Committee on Aging, which he chairs, to look into why those deaths were happening, with at least a handful occurring in Casey’s home state of Pennsylvania. This was the first hearing of its kind for the assisted living industry in almost 20 years.

Well, the Senate Special Committee on Aging held its hearing on Jan. 25, eliciting testimony from advocates, industry leaders and families. It didn’t go so well for the assisted living industry, pointing once again toward increased fervor over possible federal legislation for assisted living communities nationwide:

• “Unfortunately, what I heard today makes clear that we have a long way to go when it comes to guaranteeing the level of care that older Americans in assisted living facilities deserve.” — Sen. Bob Casey (D-PA)
• “This has gone on long enough without federal oversight.” — Sen. Elizabeth Warren (D-MA).

Those hearings were not too surprising, because the Post painted a very dire picture of assisted living today in its expose. The Post had documented 2,000 assisted living wandering incidents since 2018, with more than 100 of them fatal. But the Post article, and what occurred at the hearing, highlights the big question: Is federal regulation the answer? No, I posit to you.

We all know what federal regulation did to the nursing home industry and how it currently affects that industry through increased enforcement, driving up costs, and even today, leading to nursing home closures. In today’s environment, and with the assisted living industry post-COVID-19, the last thing folks need is federal regulation as senior living communities are struggling to get back to their pre-pandemic staffing levels, all while dealing with residents’ greater health needs and an aging population in their homes at the same time.  

But what was interesting about the Senate hearing were the seemingly ignored comments of industry leaders from the American Health Care Association / National Center for Assisted Living and Argentum, and particularly Julie Simpkins, a member of the NCAL Board, who made a good point during the hearing:

“When we talk about assisted living, it’s important to note that every state, every facility and every resident is different. …Efforts to standardize all assisted living communities would be both unworkable and irresponsible for resident care.”

I think Simpkins is right. What happened to those residents is truly tragic (also acknowledged by Simpkins), but the call for increased state regulatory oversight is not just a veiled attempt by AHCA/NCAL and the industry to avoid more regulation. Most assisted living companies are operating and providing a good quality of care. Punishing a majority of assisted living communities with greater federal regulation isn’t necessarily the answer. Why not try, as advocates suggested at the Senate hearing, to allow state regulators to continue regulation, and also crack down on the poor-performing providers.

Further, allowing greater state oversight makes real sense for those of us who have been in the nursing home/assisted living industry; after all, more regulation at the federal level is only going to muck things up further, perhaps adding to or, even worse, exacerbating, the real problem: staffing shortages. Increased federal regulation only makes it more costly for facilities to achieve compliance, and that money could be better spent on workforce programs to attract more and better assisted living workers.

We can’t just look at staffing statistics for assisted living and open positions to really encapsulate the full gravity of the staffing shortage problem. The other problem is the pool of caregivers that operators have to choose from and the need for better caregivers to insert themselves into that hiring pool. 

After all, if you fill your staffing positions with undedicated, uneducated or unqualified individuals, then you are not helping the situation. As Simpkins said, we need to address programs that will bring workers — good workers — back to assisted living environments. Simpkins commented that addressing caregiver shortages through workforce programs could make a difference.

In all, a fix to this elopement problem may not be as simple as federal regulation. Maybe the better intervention is to help improve staffing, allow states to further crack down on poor-performing assisted living communities, and see how that goes before instituting federal regulation. Otherwise, federal regulation could make the situation worse. 

Neville M. Bilimoria is a partner in the Chicago office of the Health Law Practice Group and member of the Post-Acute Care and Senior Services Subgroup at Duane Morris LLP.

The opinions expressed in each McKnight’s Senior Living guest column are those of the author and are not necessarily those of McKnight’s Senior Living.

Full Article & Source:
Assisted living’s real problem: Staffing and acuity, not lack of regulation