From NAELA News — BY ERIC M. CARLSON, ESQ. —
Eric Carlson
Everyone always wants to talk about nursing facilities. I should know.
Most prominently, President Biden has proposed a reform package that includes numerical minimum staffing standards.1 To prepare for implementing those standards, the Centers for Medicare & Medicaid Services (CMS) is-sued a Request for Information, and a federal contractor solicited public input on a newly-commissioned study.2
CMS also strengthened monitoring and enforcement for Special Focus Facilities and modified the Care Compare website.3 Meanwhile, Congress proposed several pieces of nursing facility legislation, and, in non-legislative activity, the House Select Subcommittee on the Coronavirus Crisis conducted a nursing-facility-focused hearing.4
What About Assisted Living?
By comparison, the assisted living facility policy discussion at the federal level is a chirp … chirp of metaphorical crickets. Congress doesn’t discuss assisted living, and CMS possesses almost zero authority over assisted living facilities receiving Medicaid funding.
Don’t get me wrong. We should be talking about nursing facilities — residents deserve much better than the indifferent care that often is the norm. But we also should discuss assisted living: residents are vulnerable, and current legal protections are weak.
In fairness, first consider the positives. Assisted living facilities begin with an attractive idea: that older persons can receive necessary assistance in a more home-like environment. Assisted living facilities deserve some of their good press, and the rise of assisted living contributes to breaking the nursing facility monopoly.
In other ways, however, good press is undeserved. During the COVID pandemic, for example, assisted living residents suffered illness and death just like nursing facility residents.5 Also like nursing facilities, assisted living facilities are subject to short-staffing; worse, the assisted living facilities generally have a much lower level of health care competence.
Minimal Federal Quality Standards
One factor is the minimal federal interest in assisted living quality. The principal mechanism for federal assisted living reimbursement is the Medicaid Home and Community-Based Services (HCBS) waiver. Under an HCBS waiver, a state can offer HCBS (including assisted living services) as an alternative to nursing facility care to persons with care needs significant enough to qualify them for nursing facility care.6
But although an HCBS recipient possesses nursing-facility-level care needs, the federal HCBS law has little to say about quality of care. A state’s HCBS waiver application merely requires the state to assure CMS that “necessary safeguards” have been taken to protect recipients’ health and welfare. For assisted living facility services, the state’s assurance generally constitutes nothing more than the existence of state assisted living licensing standards.
Likewise, as a logistical matter, CMS has no institutional ability to protect assisted living quality. Within states, HCBS waivers are implemented by Medicaid agencies with the principal function of administering eligibility and payment.
States’ HCBS programs offer no equivalent to the state survey agencies that, through contractual arrangements with CMS, inspect nursing facilities for compliance with federal quality standards.7
One caveat to this harsh appraisal: in March 2023, states will begin implementing a federal regulation to ensure that the practices and environments in HCBS settings are not overly institutional.8 In assisted living, under this regulation, the HCBS recipient must have eviction protections at least equivalent to those provided under state landlord/tenant law. Also (and this is not a complete list of protections), the living unit must have lockable doors for privacy, and the HCBS recipient must have control over schedules and activities, along with access to food at any time.
The settings regulation is a step in the right direction, and also may provide a foot in the door for future federal regulation of federally certified assisted living facilities. But the regulation addresses only a sliver of assisted living quality issues and provides no real mechanism for CMS to ensure compliance by states or HCBS providers.
Ineffective Performance Measures
Regarding performance measures, a comparison with nursing facilities again provides context. For each federally certified nursing facility, CMS’s Care Compare website provides a star rating (from 1 to 5 stars) for inspections, staffing, and quality measures, along with an overall star rating. The rating for quality is derived from 34 clinical quality measures, including the percentages of residents who developed pressure ulcers or a urinary tract infection, or contracted an infection requiring hospitalization.
HCBS waivers provide for “performance measures,” but they measure the performance of the state rather than the assisted living facility or other HCBS provider. Also, the measures seem to be chosen not for their usefulness but rather for the ease of collecting data. California’s assisted living waiver, for example, includes a performance measure for the percentage of level-of-care evaluations performed by a registered nurse, even though the waiver requires that these evaluations be performed by a registered nurse.
One would expect the results of this performance measure to be 100% across the board, and thus no more useful than measuring a hospital’s quality by the percentage of operations performed by medical doctors.
An old joke goes: “The food is terrible and the portions are too small.” Likewise, assisted living performance measures are not useful and also kept secret. The states send the data to CMS but then neither shares them with the public.
Facility Claiming Discretionary Right to Refuse to Accept Medicaid
NAELA attorneys should beware of a common assisted living problem: a facility that refuses to accept Medicaid from an existing resident, even though the facility is approved for Medicaid reimbursement. Facilities’ explanations are various. The resident has not paid for enough private-pay months, is in the wrong room, or the facility just does not want another Medicaid-reimbursed resident at this point.
All of these justifications are on shaky legal ground: federal law requires that a Medicaid-certified provider accept Medicaid as payment in full.9 Just as a Medicaid-certified physician (for example) cannot charge a Medicaid-eligible patient on a private-pay basis, an assisted living facility that accepts Medicaid cannot impose a private-pay charge on a resident approved for Medicaid assisted living.
Regardless, many facilities continue to follow this practice. In some instances, the problem rests in part with a state that may purport to certify only certain rooms within a facility for Medicaid reimbursement. More frequently, the problem is a facility simply ignoring Medicaid law, which in turn is condoned in practice by CMS’s disengagement from state-level assisted living issues, as discussed above.
Assuming favorable facts and thoughtful legal representation, residents should stand their ground when the facility claims that it will not accept Medicaid. If push comes to shove in an eviction action, the resident can assert the defense that the facility has refused payment. If, however, the facility can justify its action on a state’s partial-certification policy, the resident’s advocacy strategy may need to target the state rather than the facility.
Conclusion
NAELA attorneys are in a strong position to influence assisted living for the better, both through representing clients and advocating with state governments and CMS. Please feel free to contact me and my colleagues at Justice in Aging if we can assist.
Eric Carlson is an attorney and Director of Long-Term Services and Support Advocacy at Justice in Aging. He has 30 years of experience in long-term services and supports, including home and community-based services, nursing facility care, and assisted living facilities.
Citations:
- The White House, FACT SHEET: Protecting Seniors by Improving Safety and Quality of Care in the Nation’s Nursing Homes (Feb. 28, 2022).
- 87 Fed. Reg. 22,720, 22,789-95 (Apr. 15, 2022); Abt Assocs., Nursing Home Staffing Study Stakeholder Listening Session (Aug. 29, 2022), youtube.com.
- CMS, Biden-Harris Administration Strengthens Oversight of Nation’s Poorest-Performing Nursing Homes (Oct. 21, 2022),
- H.R. 7744 (nurse aide certification); H.R. 8624 (disclosure); H.R. 8677 (small homes); House Select Subcommittee on the Coronavirus Crisis, Examining Long-Term Care in America: The Impact of the Coronavirus in Nursing Homes (Sept. 21, 2022),
- See, e.g., Priya Chidambaram, KFF, Over 200,000 Residents and Staff in Long-Term Care Facilities Have Died from COVID-19 (Feb. 3, 2022), kff.org.
- 42 U.S.C. § 1396n(c).
- 42 U.S.C. §§ 1395i-3(g)(1)(A), 1396r(g)(1)(A).
- 42 C.F.R. § 441.301(c)(4); 79 Fed. Reg. 2948 (Jan. 16, 2014); CMS, Home and Community-Based Services Final Rule Update: Final State-wide Transition Plan Submissions, Settings Criteria Not Impacted by the COVID-19 PHE, and Requests from States for Corrective Action Plans (May 24, 2022), USCMSMEDICAID.
- 42 C.F.R. § 447.15.
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