In many parts of the country, assisted living operators face few consequences for even the most serious lapses in care. All states have the power to shut down troubled facilities, but they typically do so only as a last resort and after years of problems. Most states can impose fines for violations of safety standards, but they seldom carry much sting — in California, facilities routinely pay as little as $150 in cases in which the state found residents had died as a result of poor care.
While consumers can go online and compare the track records of nursing homes on a government web site, few such resources exist for assisted living. Twenty-two states still don't post inspection records online, requiring residents to visit state offices to view them on paper or file public records requests.
The Texas Department of Aging and Disability Services collects and posts a rich array of data on assisted living facilities. But after five years, the records are destroyed, making it tough for the public or regulators themselves to identify long-term patterns and problems.
The jumble of state laws governing assisted living reflects, in part, the industry's efforts to fight off tougher regulation.
It has done serious combat in Washington to ward off federal oversight, insisting that states are best-suited to oversee the varied senior living environments that co-exist under the assisted living label. Simultaneously, the industry has conducted highly effective campaigns at the state level, from Iowa to Florida to Pennsylvania, to keep rules regarding training and inspection, staffing levels and fines, to a minimum.
"We absolutely support the idea of regulation," said Mark Parkinson, a former governor of Kansas who is now the president of the American Health Care Association and the National Center for Assisted Living, an industry trade group. "The issue then becomes at what level do you regulate it? Do you regulate 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.”
Parkinson and others say the ability of individual states to craft their own oversight policies makes sense given the great variety of assisted living settings — from rooms in private homes to 200-bed facilities run by national chains. And he says the absence of strict federal involvement allows consumers to have a greater voice in how assisted living is regulated in their local communities.
All of that, Parkinson said, helps explain why industry research shows a high level of satisfaction with assisted living care.
"Ninety-one percent of the country that has a mom or dad in assisted living facility would recommend that facility to someone else,” he said. "That’s a pretty important data point."
To many — advocates for the elderly, researchers, lawyers for victim families — the hodgepodge of state rules present a real peril, one that is only likely to grow as the population in assisted living becomes more fragile. Some have called for federal regulation of assisted living similar to what exists for nursing homes.
"If you look at the history of assisted living, it sort of emerged like a hernia. It pushed through a soft spot in oversight," said Richard Mollot, executive director of the Long Term Care Community Coalition, a national advocacy organization based in New York.
Federal rules would be no panacea, Mollot and others acknowledge — there are still plenty of problems with nursing home care. The federal government has exercised more authority over nursing homes because it pays many of the bills, chiefly through Medicare. Most residents in assisted living pay out of their own pockets.
Still, proponents say, federal regulation could at least make care standards more consistent nationwide and aid in the collection of basic information about assisted living that does not exist today.
Leaders in the assisted living industry deride the idea that federal oversight would improve residents’ circumstances and say that allowing standards to vary state to state allows for more flexibility and options in assisted living settings. They say they have adapted to the more serious needs of their residents, but continue to insist that assisted living has not become an actual health care enterprise, and does not need to be regulated like one.
"We think that the regulations are working well in each of the states," said Richard Grimes, president of the Assisted Living Federation of America, a prominent trade group.
Chapter 1: In California, A Major System’s Considerable Failure
There are nearly 8,000 assisted living facilities in California today, roughly 25 percent more than there were a decade ago. But as the number of residents in these settings has swelled, the state’s system for ensuring their welfare has been slow to adapt. And by some measures, it's been in retreat.
The Department of Social Services admits that it has failed to adopt new rules and requirements to better oversee the increasing percentage of assisted living residents who need substantial medical care. The state has also relaxed the requirements for facilities to show they can meet certain care and safety standards prior to admitting bedridden residents and those suffering from memory loss.
Since 2001, the department has cut its staff of inspectors by nearly 9 percent, and lengthened the timetable for how often facilities must be inspected from every year to every five years.
"There’s no question oversight is worse now than it was 10 years ago," said Pat McGinnis, executive director of California Advocates for Nursing Home Reform, a nonprofit organization. "The current system is a recipe for neglect and abuse. Care standards are almost meaningless. Facilities can flout the law without facing serious consequences."
An examination of California’s regulatory system — inspection filings, investigation reports, lawsuits and data from the state ombudsman’s office — reveals the consequences of the cutbacks: Routine inspections are sometimes delayed and death investigations can take months to complete; even facilities with track records of repeated violations tend to receive slap-on-the-wrist punishments.
Irving Weinberg, 98, died in 2010 when his motorized wheelchair tumbled down a staircase at an Escondido, Calif., facility operated by Emeritus Senior Living, the country’s largest assisted living company and the dominant chain in California. It took regulators eight months to complete an investigation. When the state finally cited the facility for not having enough staff in place to prevent the fatal accident, the company was fined $150.
"We were not at fault for this extremely unfortunate and unforeseeable accident," Emeritus stated in response to written questions. "There is no evidence that Emeritus at Escondido caused or contributed to this tragic incident in any way."
A review of state inspection reports revealed that the state had cited the same facility just months before Weinberg’s death for failing to provide adequate medical attention for a resident who died of sepsis, a shock-like condition brought on by severe infection. In that case, too, the facility was fined $150.
Emeritus said the resident "was taken care of appropriately."
"A hundred and fifty dollars for someone’s life?" asked Leslie Weinberg, Irving’s daughter-in-law. "I don’t think that is adequate." The Weinberg family sued and settled with the facility’s owner.
In 2012, a worker at Gold Age Villa, a small assisted living facility in Placer County, picked wild mushrooms and put them in gravy she fed to five seniors. Unfortunately, the fungi were toxic. Four residents eventually died. The incident generated headlines around the country. The government response, however, was largely overlooked: The state barred the caregiver from working in the industry, but did not revoke the facility’s license or fine its owner.
The owner of Gold Age Villa did not respond to requests for comment.
In 2011 an inspector concluded that workers at an Attitudes Senior Care facility, in Del Mar, had "neglected" a bed-ridden resident, causing the person to suffer from "severe malnutrition" and "numerous" pressure ulcers, or bed sores, including a wound that eroded the flesh all the way down to the coccyx bone. State officials handed out a $150 fine and crafted a plan to bring Attitudes into compliance with California law. Records show the facility — part of a modest three-facility operation — had been put on just such a plan a few years earlier, in 2008, when another resident "did not receive the required care."
Karen Kelly, president of Attitudes Senior Care, said in a brief interview that she did not want to discuss the case, saying, when asked about the state's sanctions, "The department is the department."
"We have been providing excellent care for many years as any of our residents and family members can attest," Kelly said in an email.
Pat Leary, chief deputy director of the Department of Social Services, said in an interview that fines alone were not a meaningful curb on facilities with dangerous gaps in care. But she said the department was armed with the power to shut facilities permanently, or to scrutinize them more closely by placing them on probationary status.
However, Leary couldn't say how frequently the state was using these enforcement tools. Leary said even determining how many facilities, at any given time, had been deemed "out of compliance" with state regulations was "a hard statistic to get."
Leary said improving oversight was imperative and that the department is working to make inspections more targeted, aiming to put inspectors inside problem facilities with greater regularity.
"How can we assure residents are safe and how do we know what's going on? That's the challenge," Leary said. "We know we have a lot of catching up to do."
But it's not likely to be easy, for, as Leary admits, the department is trying to do more with less. Last year, the state broadened the workload for inspectors, tasking them with inspecting facilities for the physically and developmentally disabled in addition to assisted living facilities. When they are alerted to cases in which assisted living residents might be at risk of harm, they can take as long as 10 days to start an investigation.
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