Mark Parkinson: Assisted Living Regulation is No “Panacea”


July 30, 2013
Mark Parkinson is the president and CEO of the American Health Care Association. A former governor of Kansas, Parkinson told FRONTLINE that states, not the federal government, are better positioned to regulate assisted living. He cautioned, however, that regulation “is not necessarily a panacea.” Regulation that establishes “regimens, institutional-type settings, and really takes away from some of the benefits of assisted living would be a negative thing,” Parkinson said. This is the edited transcript of an interview conducted on Jan. 9, 2013.

[question]… It seems like every 10 years Congress gets interested in assisted living, and about every 10 years somebody throws out the idea, hey, maybe the federal government should regulate this industry.  As I understand it, your organization has been opposed to that.  Why?[/question]

First of all, let me say that we certainly support regulation of assisted living. Assisted living is a tremendous product and niche that allows hundreds of thousands of people who can’t take care of themselves at home to live somewhere where they can be taken care of, in an oftentimes wonderful in-home-like setting.

But there needs to be regulation of it, because as passionate as many people are at providing great care, some aren’t. And sometimes even people that are passionate about providing great care need direction and need regulations. So we absolutely support the idea of regulation.

The issue then becomes, at what level do you regulate it? Do you regulate it at the federal level? Or you do at the state level? And our position has been that it’s better to do it at the state level for really a couple of reasons.

The first is that states differ in terms of who is appropriate in an assisted living setting. Some states allow people that have some pretty significant disabilities to live in an assisted living environment and some don’t.

Some are much more restrictive [about] who should and shouldn’t live in those communities. It would be very difficult to overlay one set of [regulations] on really 50 different sets of state views on who’s appropriate to live in assisted living.

The second reason that we think it’s better to regulate it at the state level is frankly just the current functioning of government. State governments right now — and I can tell you as a former governor — are generally functioning pretty well on the regulatory side and even in the legislative side. The long, innovative things are taking place. Budgets are being balanced. Progressive things are occurring. And frankly, the federal government right now is broken. Congress can’t act. It can’t even pass budgets.

And so I really would think as a consumer, as a person whose mother-in-law right now is in an assisted living facility, I’m really much more comfortable with this being handled at the state level than at the federal level.

And the final thing I would say on that is this: While regulation is important, it is not necessarily a panacea. Regulation that is done smartly, that promotes person-centered care, that promotes quality outcomes is great. But regulation that creates regimens, institutional-type settings, and really takes away from some of the benefits of assisted living would be a negative thing.

So while we support regulation, we strongly support person-centered care, person-centered regulation, quality outcomes and really feel like we got a better shot at doing that at the state level than we do at the federal level.

[question]One academic we spoke to pointed out that in some states you need more training to work as a cosmetologist or a manicurist than you do to run an assisted living facility.  Does that say something about our priorities? Is there a problem with that?[/question]

Yeah, I would say that’s in fact the case. I’d be interested to know what state that is.

[question]I can tell you.  I live in California, and if I wanted to run an assisted living facility — I’m a high-school educated person — I would take a 40-hour class, and then I could run an assisted living facility. I would need far more training than that to be a barber or to be a manicurist or to be a cosmetologist. …[/question]

If that’s the case in California, and I don’t doubt what you’re saying, I think you’d really have to evaluate on a state-by-state basis. What has occurred in California? What have the outcomes been from that?  In the real world are the folks with very little training actually running facilities, and what is the outcome of those facilities?

“While regulation is important, it is not necessarily a panacea.”

I will tell you that in Kansas we had a pretty similar system. People that wanted to run assisted living facilities would come in, get a fairly minimal amount of training, but that didn’t necessarily mean that they weren’t good at running the buildings.

It’s really easy to say, hey, let’s just require 100 hours or 200 hours or 300 hours. That alone doesn’t solve the problem. The issue really is to look at what’s occurring in the real world, what sort of outcomes are being developed by those administrators. And I’m not necessarily convinced that simply adding the hours of training would create better outcomes.

[question]We’ve heard some really positive stories about assisted living. We’ve also heard some pretty negative stories. And one of those stories is about a gentleman in a facility in Georgia who drank poisonous dishwashing liquid.  He died of that. The state fined the facility $601 for his death and unrelated medication error.[/question]

[question]We’ve looked at multiple cases of deaths in facilities in California, where the typical fine was $150. And when you talk about state regulation, I look at those kinds of fines and I say, I’m not sure that that’s a real deterrent to preventing bad outcomes.[/question]

The deterrent to preventing bad outcomes is really that first of all, 95 percent plus of the people that have gotten into this work have gotten into it because they’re passionate about improving the lives of older people. They get into it not to make money. They get into it because they are really trying to help older people live in a terrific setting, and that’s what their passion and drive is.

But the second deterrent, which is by far the biggest, is the free market. Assisted living is a place where you get to choose where you live. And in most cities there are multiple choices in facilities that do terrific jobs of taking care of their residents and have quality programs and great processes, do really well. And facilities that don’t do a good job typically don’t do well.

Again, simply increasing a fine, it might make people feel better. It’s not going to change anything. What changes things is the market itself. And facilities that do well prosper, and those that don’t, don’t make it.

[question]You don’t think dropping a hefty fine on a company that kills a resident or makes a mistake that leads to the death of a resident, or taking their license, prevents them from harming another senior?[/question]

I think that anytime that one of those tragedies occurs — and it’s tragic. I appreciate your starting your question out with recognizing that there are hundreds of thousands of people that voluntarily live in assisted living facilities, and there are hundreds of thousands of great stories.

Any time there’s a bad outcome, I think it’s incumbent on the operators of those facilities to analyze what happened and why it happened. And the regulatory agency at the state should come in and figure that out. And they should together work and develop the best processes that are out there to make that happen. …

Increasing fines might make people feel good and feel like they’ve done something. It won’t. Far more important are regulations that encourage facilities to develop processes that keep those bad things from happening in the first place.

[question]You’ve spoken about the free market, about the information that consumers had. They vote with their feet. They move in, they move out. Here’s a comparison: In the nursing home industry there’s incredibly robust information for consumers about quality in those facilities. When you get to assisted living, there are many states where you can’t get almost any information about the quality in these facilities. And so that makes me wonder whether people can really make educated choices as consumers and for the market to really play out in those states.[/question]

Let me say that I agree. Certainly more information is terrific. And if there are states where you can’t go into a facility and ask to see their last survey, that’s wrong. And as an organization, we would not support that kind of policy.

We believe that consumers should be able to come into facilities, look at their facilities, look at their surveys as part of their analysis, really take a good look at the facilities, and see what they’re getting into.

The most important thing for a person who has a loved one that they’re taking care of and potentially placing in an assisted living setting is to go out and look at some buildings.  More important, though, than just looking at the buildings, there are some steps that they can take that again, government can’t mandate, but there are some steps that they need to take.

“I’m not necessarily convinced that simply adding the hours of training would create better outcomes.”

The first thing is they need to sit down with the administrator of the facility and really feel comfortable that that administrator is passionate about caring for their residents and has a plan to take care of their loved one.

Second, it’s something that not a lot of people do, is they need to ask who is the certified nurse aide, the person that’s really going to take care of my mom or dad? Who are they, and I’d like to meet with them.

The third thing they need to do is they need to sit down and have lunch or dinner with some of the residents that are in the building — not in the presence of the folks that are the marketing people that are touring them around, but just privately — and ask those people and ask the loved ones for those people, what’s it really like to live here? Tell me, when your mom falls at two o’clock in the morning, does somebody answer her call light? Is she there?

Talking to folks that actually live in the building and their loved ones is the way to figure out what the great places are and what they aren’t. It’s certainly good to look at surveys, and if there were a central data system that might be favorable too.

[question]Would you support that? Would you support a central data center for assisted living where you could compare assisted living facilities across the country?[/question]

Again, it would depend upon how you would set it up, because if you simply send in your survey and so you have a chance to read every survey, that is not going to answer the question about where’s the best place to place my mom or dad.

Surveys and survey outcomes are inconsistent because inherently they’re not done by the same teams. So there are places that are terrific facilities that have had very bad surveys, and there are facilities that aren’t great facilities that have had very good surveys. … Looking at these surveys is fine, but it’s not the real answer.

[question]… I find things somewhat baffling in this industry because the terms are different from state to state. In some states you have personal care homes. In some states you have assisted living centers and some states you have other terms. And the laws all vary. Shouldn’t there be some standardization that would make it simpler for consumers, that assisted living is the same thing in California and D.C. and Virginia and Iowa, rather than being 50 different things?[/question]

You set up a system or regulation not to make it easy for investigative reporters, so it might be hard for you to look at all 50 states. You set up a system or regulation to make it good for the residents and for their caregivers.

… When you’re looking at a place, and your mom and your dad, you’re not saying, “I’m going to figure out which of these 50 states I’m going to utilize to place my mom or dad.” You look at your own community.

And within your own community, there is a set of defined standards which are the standards that state has set for. And so it’s not complicated.

[question]You don’t think so?[/question]

It’s not complicated because you’re not making decision about whether I put my mom or dad in California or Kansas or New Mexico or New Jersey.

You’re making a decision about where within this five-mile radius of where my mom or dad or I live right now should I place my mom or dad, and there’s a very defined set of standards and regulations for that community and for that state.

[question]Do you think that people here in D.C. want something different from assisted living than people a few miles away in Maryland or Virginia? Or do you think generally they want similar things? They want a decent place for mom or dad.[/question]

I think most consumers don’t know a lot about the different levels of care that are out there in a long-term care setting until they encounter the experience, until they either personally need a placement or somebody that they’re caring for needs a placement.

“Increasing a fine, it might make people feel better. It’s not going to change anything. What changes things is the market itself.”

And I think that inherently all consumers want a safe place for their mom or dad, with good quality care and all of the things that you would care about for your parent.

But that doesn’t mean that each state should be forced to make the same decision about who is appropriate in each level of care, who’s appropriate in independent living in a home-held setting, in an assisted living setting, in a skilled nursing setting and in a hospital.

There’s no reason that the federal government, which currently isn’t working at all on any level, should come in and instill [in] all these states: Here’s exactly what you need to do.  Those decisions should be made at the state level.

[question]Some people would say that federal government has made great strides in improving care in the nursing home industry. Why couldn’t they do the same thing in the assisted living industry?[/question]

I think that the regulation of nursing homes in this country, while there are some federal standards, it’s principally handled at the state level. The federal government subcontracts out to each state the survey and regulatory process for nursing homes. And I think it’s sort of an admission that it doesn’t make sense to do this at a federal level.

I believe that there has been significant improvement in nursing home care in the last 20 or 30 years, and we’re extremely committed to taking that to a much higher level. I don’t think you could say it’s because there is a base level of regulation at the federal level. That is not what has caused the improvement to take place.

[question]What’s improved it?[/question]

What’s improved it is consumer demand. Folks want better places for their parents and grandparents to live. And our members and other folks have responded to that by creating much better settings, being passionate about making improvements.

And processes have improved it. We now measure things that we didn’t use to measure. We now measure resident and patient satisfaction and employee satisfaction and use of the antipsychotic drugs and re-hospitalization.

We’ve got all these measures now that we can benchmark facilities against that have forced them to compete with each other in a good way, in a way that’s improving the facilities that are out there.

[question]And that data in the nursing home industry is very robust. It’s very granular.  And when you look at a similar population, the assisted living population, the data is almost non-existent.  … Do we need more research?[/question]

We have some pretty important data points. One data point that we have is that we survey folks to figure out if they would recommend this facility that they’re in or that they have a parent in to somebody else, [and] 91 percent of the country that has a mom or dad in assisted living facility would recommend that facility to someone else.

That’s a pretty important data point. That’s telling us that we have a level of satisfaction that probably exceeds almost any other business sector in the country.

[question]So you think there is decent–[/question]

What else do you think we need? What are the data points are you looking for?

[question]If we’re going to talk about the things that led to improvements in nursing home care, we know all kinds of things about the people who enter nursing homes, about the treatment they get when they’re there, about how they exit nursing homes, about the drugs they get while they’re in there. All the things that you pointed out. And with assisted living, we have a vague idea of what people’s afflictions are, of what their ailments are, of what their needs are, but we don’t have a very good picture of that. It’s pretty sketchy.[/question]

I would disagree. We know the average ages of residents when they enter. We know what their conditions are. We know how many disabilities they have that need care every day.

We have data on why they come in, why they leave. We have data on their use of antipsychotics. We understand what their doctors are prescribing them. So I guess I would disagree with the notion that we don’t have data on assisted living.

[question]We’ve [seen] two studies, one in ’99, one in 2010, that were surveys of a small number of facilities. Would you support doing more surveys over time nationwide that sort of track what’s going [on] in the industry?[/question]

Data is good, and being able to benchmark quality measures is extremely important. So assisted living providers need to understand what the average re-hospitalization rate for example is, and are they doing better than that or are they doing worse? They need to understand what the average use of antipsychotics is. So are they doing better, are they doing worse?

We feel like we have a pretty good handle on that data, but if you have ideas and ways to improve it, we’d certainly be open to them.

[question]I have a devil’s advocate question for you. We spoke to an economics professor, business professor in Ohio, and he put this out. He said, “It’s my belief that the assisted living industry wants to be regulated at the state level because it’s easier to influence state legislatures than it is to deal with Congress and influence Congress.” What do you think of that?[/question]

Regulation is not done at the legislative level. Regulation is done at the administrative level. So when you’re regulated at the state level, you don’t go to your local state representative or your local state senator and say, “I want you to do this stat or the other.” Instead you go to the regulatory agency in the state.

When you’re regulated at the federal level, you don’t go to Congressman X, Y, or Z and say, “This is what I want.” Instead you go to the regulatory agency, which is CMS [Centers for Medicare and Medicaid Services]. So that economist just has a fundamental misunderstanding as to what actually occurs on the ground in the real world.

[question]I actually saw information from Iowa where lobbyists were going and having legislative forums with state legislatures, saying we’d like to have lower fines in assisted living and nursing homes. So they actually were talking directly to the legislatures about what they wanted to happen with the regulatory body. And I saw the PowerPoint presentation and the schedule of legislative forums.[/question]

Yeah, but when you’re talking about the overall regulatory framework, that is of course set up in a statutory way. Federal and state agencies can’t do anything that they’re not legislatively authorized to do.

But when you’re talking about the nuts and bolts of who’s coming in to survey this facility, how many people are they sending, how long are they going to be there, what deficiencies are they issuing or not issuing, what fines are they fining or not fining, that is done at the regulatory administrative level.

Occasionally there’ll be a high-level issue that you go in and talk to a legislature or talk to a Congressman about. But the nuts and bolts, the real day-to-day work, is done at the administrative agency level. …

[question]I know your organization supports training for people in this industry. You support high standards for this industry. Is there any sort of national benchmark that you would like to see as far as training goes for administrators, for caregivers in the industry?[/question]

Again, because it’s a state-by-state issue as to the acuity level of people that are in assisted living, it would be difficult and probably a mistake to try to have a nationwide standard on that. …

Almost all this industry and I believe virtually all of our members are committed to quality care for a couple of reasons versus the reason they got into the work. It’s not easy work. It’s challenging, but it’s incredibly rewarding because you know you’re improving people’s lives.

But the second thing is that the marketplace is forcing quality. It’s forcing folks to do the right thing, to get better, because the baby boomer generation is placing their parents in these facilities, is very smart, and they’re very informed.

And they do run around. They don’t just come to one facility when they’re trying to place their mom or dad. They go to three or four or five or six, and sometimes they come back two or three times.

So I’m not going to say that we’re perfect and that things can’t be better. They can be.

The way that they get better is that we continue to benchmark on the things that are important and challenge our members in this sector to exceed those goals. The way they get better is through regulatory schemes that encourage quality and encourage outcomes and de-emphasize institutionalization.

But it’s a little bit harder than just slapping on a federal fine or turning this over to CMS and feeling like you’ve solved the problem, because that really won’t do it.

Jason M. Breslow

Jason M. Breslow, Former Digital Editor



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