Assisted Living Update. Assisted Living Residents

Assisted Living Update

American Health Lawyers Association

Phoenix, Arizona

Dave Kyllo Karl Polzer

dkyllo@ncal.org kpolzer@ncal.org

Data from ALFA, ASHA, AAHSA, NCAL & NIC 2009 Overview of Assisted Living

• Average Age = 86.9

• Average Age at Move-in = 84.6

• 73.6% Female; 26.4% Male

• Average Income = $27,260

• Average Assets (including home) = $431,020

• Median Income = $18,972

• Median Assets (including home) = $205,000

Data from ALFA, ASHA, AAHSA, NCAL & NIC

2009 Overview of Assisted Living

 Hypertension 66%

 Arthritis 42%

 Alzheimer’s/Dementia 38%

 Coronary Heart Disease 33%

 Depression 30%  Osteoporosis 27%  Macular Deg./Glaucoma 19%  Diabetes 17%  Stroke 14%

Health Conditions

ADL

ALF

NF

•

Bathing

64%

96%

•

Dressing

39%

90%

•

Toileting

26%

84%

•

Transfer

19%

80%

•

Eating

12%

53%

•

81% of ALF residents need help with meds.

ADL Dependence

Data from ALFA, ASHA, AAHSA, NCAL & NIC

2009 Overview of Assisted Living

• Residents need assistance with 4.5 IADLs on average with 4 out of 5 needing help with housework,

laundry, medications, transportation and meal preparation

• 54% use a walking device (cane, walker, etc.) and 22% use a wheelchair

• 31% bladder incontinent; 14% bowel incontinent

• 92% of communities arrange for /provide hospice care

Other Care Issues

Data from ALFA, ASHA, AAHSA, NCAL & NIC

2009 Overview of Assisted Living

 Nursing home 59%

 Home 9%

 Another ALF 11%

 Relative’s home 5%

 Hospital (other than short term) 7%

 Independent living 4%

 Hospice 2%

 Other 4%

One-third (33%) of residents die in the assisted living setting.

• Keeping Regulation of Assisted Living at the State Level

• Keeping Assisted Living Included in CMS’ definition of Medicaid HCB settings

• Protecting, Improving Medicaid Coverage

• Ensuring That AL Thrives in an Episodic Payment/ACO Environment

• Completing the Medicare Part D Co-Pay Fix

• Helping Members Navigate Health Care Reform

NCAL’s Policy Priorities

• In 2011, at least 16 states made AL legislative/regulatory

changes.

• GA, SD, NV, & NC made extensive changes.

• Focal points of change include: Staff education/training,

Disclosure, Fire safety, Infection control/TB testing, Discharge/transfer between care sites.

• Other areas of change: Move-in/move-out requirements,

Medication management, Physical plant.

In 2011, GA joined states adding second level of licensure (e.g., PA did so in 2010)

• GA facilities with 25+ beds now can opt for licensure as either Personal Care Home or Assisted Living Community.

• While the two categories share many common requirements, Assisted Living Community standards are more stringent or vary in a number of areas including disclosure, required services, admission thresholds, resident assessment, medication management, physical plant, staffing, staff training, and fire safety.

2012 NCAL State Regulatory Review - available at: www.ncal.org

State Regulatory Trends

SD overhauled its rules for Assisted Living Centers

• Skilled care must be delivered by a Medicare-certified home health agency or facility nursing staff for a limited time with a planned end date.

• Defines conditions for provision of hospice care.

• Updates fire safety standards for 2009 edition of NFPA Life Safety Code.

• Other areas of change: food service, occupant protection, infection control and prevention, TB screening, resident assessment, drug disposal, and architectural features.

2012 NCAL State Regulatory Review

Six states added to education/training requirements. • WA: most new direct care workers (now called “long-term care

workers”) must now take 75 hours of training within 120 days of hire and become certified home care aides.

North Carolina law allows reduced frequency of facility inspections based on quality ratings.

• Those with highest rating (4 stars) can be inspected every two years instead of annually.

Many state agencies dealing with limited resources, personnel changes.

2012 NCAL State Regulatory Review

State Regulatory Trends

Increased focus on transition between care sites

• NJ, e.g., mandated use of Universal Transfer Form to make sure accurate clinical care information is conveyed during transfer. AL Medicaid changes:

• New CO rules aim to ensure that HCBS settings are home-like and integrated into the community.

• Mandatory use of managed care in NJ.

• RI substantially cut in state supplements to SSI (and many states made Medicaid rate cuts).

• Concern among fire marshals, experts about decreased ability of AL population to evacuate without assistance is challenging current life safety standards. NCAL taking proactive steps.

• National Fire Protection Association adopted all of NCAL’s Life Safety Code proposals and they are included in the 2012 edition of the Life Safety Code. Work has started on the 2015 edition.

• NCAL is submitting proposals for new construction to International Building Code committee.

• Objectives: Ensure safety; avoid shift to institutional standards, costly retrofitting; harmonize two major codes impacting AL.

NCAL Life Safety Initiatives

• Facility Guidelines Institute (FGI) is developing a separate set of guidelines for residential care and assisted living.

• Authority for creating the guidelines was transferred from AIA to the newly created FGI.

• NCAL has 4 Board members representing the AL profession and all 40 of our recommendations were adopted in the first round in early Feb. 2012.

• These guidelines will likely be used by state licensing agencies.

• Rising acuity is leading some states to increase AL regulation, increasing pressure for greater uniformity. • At Senate Aging Committee in March & November 2011:

• Affordable assisted living is in short supply; • State regulation and/or surveys are lacking; • More Ombudsman involvement is needed;

• CMS must assure quality care and services are being provided to Medicaid HCB waiver beneficiaries

• CMS proposed rule defining HCBS settings contains list of conditions for AL participation. Is this the beginning of federal regulation?

• Many leaders in Congress are on record as supporting greater federal oversight.

Federal Regulation of AL?

•

Rates often inadequate.

•

Payment for AL Incomplete (housing, food,

utilities not covered; SSI check insufficient to

fill gap.)

•

Many recent federal initiatives, regulations

tend to exclude AL.

States shifting from cuts to restructuring:

• 11 states plan to implement Medicaid managed care, joining 12 with existing Medicaid managed care programs.

• Many shifting away from institutional settings -- 27 report HCB census up from FY 2010 to FY 2011, and 31 expect increases from FY 2011 to FY 2012.

• At least 28 states are focusing on improved integration of care for dual eligibles.

AARP : “On the Verge: The Transformation of Long-Term Services and Supports”: http://www.aarp.org/health/health-care-reform/info-02-2012/On-the-Verge-The-Transformation-of-Long-Term-Services-and-Supports-AARP-ppi-ltc.html.

State LTSS Strategies

•

In 2011, CMS published two proposed rules

that would define Medicaid home and

community-based settings for the first time.

•

These regulations have the potential to

exclude most types of assisted living

communities from the Medicaid program.

“Medicaid Program: Community First Choice Option,” (published in the Federal Register on Feb. 25, 2011) and

“Medicaid Program; Home and Community-Based Services Waivers” (Federal Register, April 15, 2011).

NCAL is Fighting to Keep Assisted Living in

the 1915 (c) Medicaid Waiver Program

In both, being on or near a property containing

an institutional setting (SNF/NF) could

disqualify a community-based provider (such

as assisted living or a group home) from

participation in Medicaid.

Communities providing care designed for

particular diagnosis (e.g., Alzheimer’s) also

could be excluded from Medicaid.

CMS Proposed Rules Defining Medicaid Home

& Community-based Settings

Language from 2nd_{Proposed Rule:}

“…that HCBS: must be integrated in the community; must not be located in a building that is also a publicly or privately operated facility that provides institutional treatment or custodial care; must not be located in a building on the grounds of, or

immediately adjacent to, a public institution; or, must not be a housing complex designed expressly around an individual’s diagnosis or disability, as determined by the Secretary. Such qualities may include regimented meal and sleep times, limitations on visitors, lack of privacy and other attributes that limit individual’s ability to engage freely in the community.”

CMS Proposed Rule Defining HCBS Settings

The rule goes on the say:

“For the purposes of this regulation, we note that ALS (assisted living settings) for persons who are older, with regard to disability, would not be excluded from home and community based setting when the following conditions are met:

 Individual has a lease

 Setting is an apartment with individual living, sleeping, bathing and cooking areas, and individuals can choose whether to share a living arrangement and with whom.  Individuals have lockable access to and egress from their

own apartments.

 Individuals are free to receive visitors and leave the setting at times and for durations of their own choosing.

Additional Conditions for AL Participation

Cont.:

 Aging in place….must be a common practice in the ALS setting.

 Leases may not reserve the right to assign apartments or change apartment assignments.

 Access to the greater community is easily facilitated based on the individual’s needs and preferences.

 An individual’s compliance with their person-centered plan is not in and of itself a condition of the lease.

Additional Conditions for AL Participation (2)

“State Reimbursement Policies and Practices in Assisted Living”

Available at www.ncal.org.

Study released by NCAL in late 2010. Conducted by Robert Mollica, independent health policy researcher, formerly on staff of National Academy for State Health Policy.

Methodology:

Updates Residential Care and Assisted Living Compendium: 2007 prepared for ASPE.

Source:

State web sites; Electronic survey; Telephone calls with staff responsible for HCBS programs.

Data collected March – June 2009.

NCAL Medicaid Payment & Policy Study

Key Findings:

• 37 states use 1915(c) HCBS waivers; 13 provide coverage directly under state Medicaid state plan; 4 include it 1115 demonstration programs; and 6 use state general revenues. States may use more than one funding source.

• Tiered rates the most common methodology for reimbursing assisted living providers (19 states). Flat rates are used in 17 states.

• 23 states cap the amount that may be charged for room and board.

• 24 states supplement the beneficiary’s federal Supplemental Security Income (SSI) payment of $674, which states typically use as the basis for room and board payment. SSI combined with state

supplements ranges from $722 to $1,350 a month depending on the state. Some states provide no supplement.

• 25 states permit family members or third parties to supplement room and board charges.

NCAL Medicaid Payment & Policy Study

• 23 states require apartment style units; 40 allow units to be shared; and 24 allow sharing by choice of the residents. • Screening for mental health needs is performed by case

managers and assisted living community staff in 9 states; by case managers only, in 10 states; and by assisted living staff only, in 9 states.

• Mental health services are arranged by assisted living communities in 16 states; case managers in 20 states; and may be provided directly by assisted living communities in 3 states.

A Few Examples of Rates for Medicaid Services:

• TN rate capped at $1,100/month: or maximum of $13,200 annually (plus $674/month SSI for room and board or $8,088 annually). So maximum of $13,200 for services plus $8,088 from SSI = $21,288 annually total including room and board.

• Flat rates range from about $35/day (GA)…: or $12,775 annually for services plus $8,088 SSI = $20,863 annually total including room and board.

…Up to $70/day (UT): or $25,550 annually for services.

NCAL Medicaid Payment & Policy Study

Examples of Tiered rates:

• OR has 5 payment levels ranging from $1,002 to $2,355 a month. State limits monthly room and board payment to $523.70.

• OH has 3 tiers ranging from about $50/day to $70/day. Room and board is capped at $624 a month.

• VT: Rates range from $36/day to $103/day plus $674

Source: “State Medicaid Reimbursement Policies and Practices in Assisted Living,” Robert Mollica, National Center for Assisted Living/AHCA, September 2009. Available at www.ncal.org.

Home & Community-based Services

(HCBS) as a % of Medicaid LTC Spending

Percent

HCBS

U.S.

Oregon

Iowa

Miss.

Delaware

Health Care Reform: Affordable Care Act

Provisions Impacting Assisted Living

•

Medicare Part D

•

Criminal Background Checks

•

CLASS Act

•

HCB Incentives

•

Individual Mandates

• Medicare Part D Co-Pay Legislation (Sec. 3309 of the Affordable Care Act)

−Eliminates Part D co-pays for dual eligibles in home and community based settings covered under a Medicaid waiver – includes at least 60% of assisted living dual eligible population.

−CMS implemented January 2012.

• NCAL will seek a legislative fix for the remaining dual eligibles covered by state plans (the “non-waiver” population), if necessary.

Medicare Part D: A Major Victory!

•

Criminal Background Check Funding

•

Reporting Crimes Occurring in Federally

Funded LTC Facilities to Law Enforcement

resulting in “serious bodily injury” to a resident or individual receiving care, within two hours to the Secretary and at least one local law enforcement entity.

 Reporting required by owner, operator, employee, manager, agent or contractor of LTC facility that receives at least $10,000 in annual federal funding.

By 2019, PPACA estimated to reduce number of U.S. medically uninsured by 32 million through a complex combination of new mandates, fines, programs, and financial incentives.

 Changes being implemented in 2010 and 2011 have

modest cost consequences for employers.

 Changes in 2014 may have significant financial

impact on many LTC providers.

For more information, see policy analysis and other resources on AHCA/NCAL Health Care Reform Web site:

http://www.ahcancal.org/advocacy/Pages/HealthCareReform.aspx

Impact of Coverage Expansion/Employer

Mandate Provisions: Overview

• Insurance and group health plan reforms:

 Prohibiting lifetime coverage limits, restrictive annual limits, coverage recissions, cost sharing for certain preventive and wellness benefits,

 Limiting coverage waiting periods,

 Requiring plans offering dependent coverage to cover young adults up to age 26.

 Establishing rules for “grandfathering” of plans.

-- Waivers temporarily granted for “mini med plans” otherwise violating annual limit restrictions.

• Small employer tax credits.

• Temporary high risk pools

• Temporary reinsurance subsidizing retiree health plans.

• Dept. of Treasury Request for Comment on defining

full-time employees & identifying challenges employers will face in meeting new coverage requirements.

• HHS announces end to mini-med waivers: Applications

for new waivers or extensions of current waivers must be submitted by September 22, 2011.

• First installment of Health Insurance Exchange rules. • W-2 Reporting: employers will be required to report value

of employee’s health benefits (postponed until 2012).

Changes in 2011

Major changes occur in 2014:

Policy “sticks”:

 Individuals will have to be insured, or pay fines.

 Employers with at least 50 full-time employees will have to meet requirements for offering health benefits, or pay fines. - including new standards for benefit levels, eligibility

waiting periods, employee affordability (no more than 9.5% of family income).

 Employers with >200 employees offering coverage must

automatically enroll employees in plan (employees can opt out).

Changes in 2014

Policy “carrots”:

 Medicaid expansion: adults covered up to 133% of FPL.  New health insurance “exchanges” offering individual

insurance policies with federal subsidies for people with incomes between 133% and 400% of FPL.

 Ability for small employers to buy insurance through exchanges.

Positive impacts of law include:

 Greater access to coverage and health care for some middle-and low-wage employees, for workers in firms not offering coverage or offering plans with limited benefits, and for people outside the workforce.

 Greater ability to change jobs (less “job lock”).

Program Expansions, Subsidies,

& Positive Impacts

Potential Concerns for LTC Providers:

 Mandates could cause major labor cost increase (due to higher benefit costs, more employees taking up

coverage if an employer complies with new standards –

or the employer having to pay fines).

 Unintended consequences as employers and

individuals react to complex new rules and marketplace developments.

 Lack of predictability/ability to plan, as the law leaves many unanswered questions.

LTC providers most at risk for financial impact

include:

 Those with high percentage of low-wage workers.

 Small firms not able to self-insure.

 Those offering limited health benefits or not offering coverage to some full-time workers.

 Those with low margins (e.g., NH margins have averaged about 2%-2.5% recently).

 Those reliant on government reimbursement (they cannot unilaterally raise prices if their labor costs suddenly go up).

LTC Providers Most at Risk

Affordable Care Act established the new

“Class” (Community Living Assistance

Services and Supports) program.

• Administration chose not to implement in current form.

• House voted to repeal.

The ACA provides enhanced federal matching

funds for Medicaid HCBS expansions in several

provisions including:

•The Balancing Incentive Program, which offers an FMAP increase to states that expand nursing home diversions and access to HCBS.

•Money Follows the Person grant program extended to 2016.

•Community First Choice Option, allowing states to offer

attendant care and related supports, providing opportunities for self-direction.

 Definition of home and community-based settings is a big issue for assisted living.

Medicaid Home and Community-based

Services (HCBS) Expansions

• In July 2008, AHRQ launched the Assisted Living Disclosure Collaborative. This 18-month project resulted in a survey tool that will allow consumers to compare and select assisted living communities.

• Final model tool was completed in December 2009 and was pilot tested in 2010 in Phase II.

• More wide scale testing in March 2012 in 8 states.

• Phase III work will focus on the consumer piece of the this initiative but timeframe is not set.

• NCAL continues to actively participate in this AHRQ initiative.

• Working before and after shifts

• Working during an employee’s scheduled meal break including interruptions of short duration

• Employees not being paid for staff meetings and compensable training session

Why the violations?

– Lack of understanding of the FLSA

– “We did it that way the last place I worked” – Caring employees

– LTC culture and environment

Fair Labor Standards Act Enforcement

Continues in LTC Settings

• #31 Nursing Care Under the FLSA (Guidance applicable to all provider types)

• #52 Youth Employment

• #53 Hours Worked

• #54 Calculating Overtime

LTC Specific Fact Sheets are Available at

www.dol.gov/whd

ENERGY STAR

Medical Office Building

Office Building

Hospital

Warehouse

Dormitory Supermarket Court School Bank/Financial Hotel

Waste Water Retail

Eligible for ENERGY STAR score

Benefits of Energy Conservation

• Senior Care Providers

– Margin maximization strategy – Performance management

• Residents

– Enhanced affordability

– Quality enhancement program

• Environmental Leadership

– Lead on addressing climate change

• Centers for Medicare & Medicaid Services (CMS)

 Defining HCB Settings

• HHS Office of Inspector General (OIG)

 State Oversight of Waiver Providers • CDC

 Infection Control

• National Labor Relations Board (NLRB)

Federal Agencies with Initiatives Impacting

Assisted Living

Fractures/Head Injuries

47%

Minor/No Injury

31%

Sudden/Unexpected Death

6%

Pain/Suffering

3%

Burns

2%

Sexual Assault

2%

Pressure Ulcer

1%

HealthCap Resolved Claims

2001 – 2011

Choking

$214,168

Burns

$203,580

Unexpected Death

$145,470

Pressure Ulcer

$133,503

Pain & Suffering

$ 92,050

Sexual Assault

$ 63,769

Fractures/Head Inj.

$ 49,416

*HealthCap (2001 to 2011 Data)

Source: “HealthCap Data based on resolved claims from 2001-2011 for residential care/assisted living/independent living

Common causes:

• Fractures and head injuries primarily due to falls

• Sudden/unexpected deaths due to unnoticed change of conditions, elopements, bedrails and medication errors.

• Burns due to cigarette smoking and inappropriate use of hot packs

What Led to the Litigation?

Three Tracks: Operations Legal Public Affairs/ Customer Relations/ Media

Methodology

• 1,000 Likely 2010 General

Election Voters Nationally

• Interviews Conducted May

13-17, 2010

• Margin Of Error +/- 3.1%

Overall, Higher For Subgroups

favorabl e

unfavorable

Favorability Ratings (ranked by mean)

Closing this Gap is Critical for Assisted Living and One of the Goals of NCAL’s Quality Agenda

Assisted-Living Facilities Rehabilitation and Skilled Nursing Facilities Acute Rehabilitation Hospitals Long-Term Care Facilities Nursing Homes positive negative

Quality Of Care Ratings

2.78 2.78 2.80 2.59 2.49 Mean Mean 3.23 3.21 3.19 3.06 2.92

•

NCAL’s program to house all quality

resources and tools for the membership

•

NCAL Quality Web site

 Has all training tools created to date

 Links to collaborative partners (MIV, CEAL, AALNA, NAHCA and Provider Management)

 Links to all of NCAL’s Guiding Principles

Advocating Care Excellence (ACE)

http://www.ahcancal.org/ncal/quality/ Pages/AdvocatingCareExcellence.aspx

•

In-service Training Programs

 Transitioning into Assisted Living: A Guide for Residents and Their Families

 Transitioning Out of Assisted Living: A Guide for Staff

 Turning Complaints to Compliments

 The Power of Ethical Marketing (updated in 2011)

 Successful Resident and Family Councils

 Better Serving LGBT In Assisted Living

•

CEAL Clearinghouse

• Resident/family satisfaction • Employee satisfaction • Staff retention • Census/occupancy rate • Resident councils

Performance Measures

• Safety programs

• Nurse availability

• State criminal background checks

•

89 percent measure resident and family

satisfaction

•

79 percent measure employee satisfaction

•

88.5 percent have a resident council

•

94 percent have a mission statement

•

94 percent review incident reports for

residents

•

94 percent review incident reports for staff

•

85 percent have a safety committee

•

97 percent have a licensed nurse available to

the staff and residents 24 hours a day

•

99 percent conduct criminal background

checks on all new employees

Key Findings cont.

 Assisted Living Research and Studies

 News

 NCAL Publications

 Labor, Workforce & OSHA Resources

 Legislative Updates

NCAL’s Web site – www.ncal.org

 Practice Guidelines and Training Tools

 Webinar and Event Info.  Quality Resource  Consumer Resources  And more…