Federal assisted living legislation expected before end of year

by  Lois A. Bowers

Federal assisted living legislation is expected to be introduced by US Sen. Mark Kelly (D-AZ) before the end of the year, LeadingAge Minnesota reported Thursday.

The goal of the ASSISTED in Assisted Living Act (short for Advancing Supportive Services, Information Sharing, and Transparency for Evidence-informed Decisions in Assisted Living Act) would be “to help consumers and providers have information on best practices in assisted living with the goal of helping set expectations and improving quality and value,” the association, which is the state partner of the national LeadingAge and Argentum organizations, said in a news item posted on its website.

The bill, according to LeadingAge Minnesota, would establish an Assisted Living Advisory Council that would recommend best practices for assisted living, create a voluntary process for assisted living communities to report their performance related to the recommendations, and develop an online dashboard where consumers could view the performance reports.

Industry involvement

LeadingAge Minnesota noted Thursday that Kelly’s staff shared a draft of and requested input on the ASSISTED in Assisted Living Act from Argentum, LeadingAge and other stakeholders “several weeks ago.”

Argentum and, jointly, the American Seniors Housing Association, LeadingAge and the National Center for Assisted Living, all have submitted formal comments about the legislation, according to the state association.

The group said that the bill has “little likelihood of passage” and that it will face “a difficult path in the upcoming Congress and under the Trump Administration” but noted that because it potentially could set a precedent for additional federal regulation of the assisted living industry, “Argentum and others believe that the best way to prevent future legislation that could be harmful is by preventing it from being introduced or advancing as early in the process as possible.”

The current session of Congress officially concludes Jan. 3.

Aging Committee efforts

Kelly, a retired astronaut who has been a featured speaker at industry events such as the 2012 American Health Care Association/NCAL and 2014 Argentum annual meetings (the latter when the organization was known as the Assisted Living Federation of America), was sworn in as a senator in late 2020.

He is a member of the Senate Special Committee on Aging, which in January launched a review of the assisted living industry and held a hearing at which he and some other members called for a government study on industry pricing and transparency. Committee Chair Bob Casey (D-PA) said it was the body’s first hearing in more than 20 years that focused specifically on assisted living.

The actions followed reports about safety, staffing and pricing that were published in outlets such as the Washington Post, the New York Times and KFF Health News, and the Arizona Republic in Kelly’s home state.

During the January hearing at which the review was announced, Kelly described the incidents of physical and sexual abuse against residents that were reported by the Arizona media outlet as “horrifying” and asked a hearing witness: “Should the federal government maybe consider having a role here in providing oversight for assisted living facilities?”

Although assisted living communities primarily are regulated at the state level, Casey said at the time, the Senate Aging Committee frequently has used its authority to “examine private companies when concerns arise about potential health and safety, as well as financial risks posted to older adults.” As a special committee, the body has no legislative authority.

As part of the committee’s review of the assisted living industry, the Pennsylvania lawmaker sent letters to Atria Senior Living, Brookdale Senior Living and Sunrise Senior Living, asking them to provide information and documents detailing how they communicate the cost of services to residents and their families, rates they charge in each state, and their schedules of services and costs.

Additionally, he asked them to provide information on average revenue per occupied unit for the past seven years, figures on the number of residents who have eloped or sustained injuries due to being left unattended, information about the accessibility of information about complaints and citations received by their communities, their policies and procedures for informing residents and families about accidents, applicable staffing requirements, and job titles and associated pay rates at their companies.

Neither Casey nor the committee has issued a report about the findings, and Casey will leave the Senate soon, after losing his seat in the recent election.

But at the January hearing, Kelly noted another report, one issued in 2003 by the Assisted Living Workgroup, which had been formed in 2001 at the behest of the Senate Aging Committee. The group had more than 50 organizational members and a steering committee with representatives from ASHA, NCAL, the American Assisted Living Nurses Association and the organizations now known as the Argentum, LeadingAge and PALTmed (the Post-Acute and Long-Term Care Medical Association), among others.

“This work group was tasked with coming up with recommendations for best practices in assisted living facilities to ensure a more consistent quality landscape across states,” Kelly said. “The result was a 380-page report with a lot of recommendations. These were hard to agree upon.”

One outgrowth of the workgroup’s efforts, however, was the formation of the Center for Excellence in Assisted Living, which, according to the report, “would be an on-going effort at the national level to review, research, evaluate and validate methods that will promote quality in assisted living.”

CEAL became CEAL@UNC in 2023 and now is located within the University of North Carolina at Chapel Hill. Its board and advisers include representatives of many of the organizations that were part of the Assisted Living Workgroup.

In another effort to promote quality in assisted living, Argentum, LeadingAge, ASHA and NCAL joined with the National Association for Regulatory Administration in June 2023 to form the Quality in Assisted Living Collaborative. The group’s goal is to develop guidance for the industry and resources for operators, regulators, policymakers and other stakeholders. It recently released best practices for infection prevention and control for assisted living communities, although NCAL did not endorse them.

More federal scrutiny

The assisted living industry also came under federal scrutiny a decade ago when several senators asked the Government Accountability Office to report on Medicaid oversight and care quality in assisted living communities. That request, made in 2015, resulted in a 2018 GAO report.

Although that report was more of a to-do list for the Centers for Medicare & Medicaid Services related to state reporting of deficiencies in care and services provided to Medicaid beneficiaries in assisted living communities, some federal lawmakers and consumer advocates said the findings would lead them to push for changes in assisted living.

Industry associations long have maintained that regulation of providers should remain at the state level.

“We think that states do a better job in regulating, particularly because assisted living models and community-based models are extremely unique,” AHCA/NCAL President and CEO Clif Porter recently told McKnight’s Senior Living. “In every state, they look different. And for that reason, we want to make sure that regulation stays as close to local as possible.”

The existing regulatory framework “encourages states to innovate and explore ways to provide cost-effective long-term care at a much more local level than could ever be replicated by one-size-fits-all federal regulations,” Argentum President and CEO James Balda wrote in comments to the Senate Aging Committee earlier this year. 

“State regulation of assisted living and memory care allows for a more responsive process when policymakers, industry, consumers and other stakeholders call for a change in rules,” ASHA President and CEO David Schless wrote to the committee.

LeadingAge President and CEO Katie Smith Sloan recently told McKnight’s Senior Living that, “In part because of the growth of assisted living, in part because of COVID and more people living in assisted living, there will continue to be this heavy activity on how to best regulate assisted living.”

This is a developing story. McKnight’s Senior Living will provide additional updates.

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Federal assisted living legislation expected before end of year