A hearing last week on proposed regulations for assisted-living providers marked the latest battle in an ongoing turf war in Maryland.
Assisted-living and nursing home operators in the state are locked in a 2-year-old debate over how restrictive the rules should be for admitting individuals to assisted-living facilities and determining which residents should be allowed to remain at the facilities as their conditions worsen.
From a broader perspective, the Maryland controversy highlights some of the assisted-living industry's growing pains as it struggles to take its place in the continuum of care.
Such states as Arizona, Hawaii, Oklahoma, Pennsylvania, Vermont, Virginia and Wisconsin also are taking another look at their assisted-living regulations, says Karen A. Wayne, president and chief executive officer of the Assisted Living Federation of America. "We're seeing regulators wrestling with what to do with us as the industry matures," she says.
In the absence of federal regulations, oversight of assisted-living facilities has been left to state housing and regulatory authorities. Pressure to reform the rules is building as assisted-living grows more popular with consumers, receives more state and federal dollars and increasingly threatens the market share of traditional long-term-care providers.
The stakes were raised in Maryland in 1995 when Gov. Parris Glendening formed a task force to look at how and whether current assisted-living regulations should be changed.
Under the state's existing rules, similar assisted-living-type facilities could find themselves subject to different rules and monitored by different state agencies. The task force found the classifications lacked flexibility, were not coordinated between the various state agencies charged with overseeing senior care and did not adequately define assisted living.
Its recommendations' led to the state General Assembly's passage of Senate Bill 545 in April 1996. The law repeals the existing classifications and replaces them with three levels of "assisted-living" programs based on the intensity of care and scope of services provided. It also coordinates the oversight of Maryland's assisted-living programs under the state Department of Health and Mental Hygiene.
The health department recently released its second draft of proposed regulations implementing the law after receiving hundreds of comments from providers and consumers.
Although the law calls for an effective date of Oct. 1, the proposed rules have become the flashpoint in a debate over the future of long-term care in the state, making it unlikely they will be put into effect before January or February of next year. A special provision allows the current regulations to remain in place until the proposed rules are completed.
Under the proposed rules, if a potential resident has certain serious needs, such as ventilator support, he or she is not allowed to move into an assisted-living facility.
Assisted-living advocates argue this provision could violate federal fair housing laws by restricting housing options based on a disability test.
"Any sort of restrictive controls irrespective of quality-of-care issues are doing a disservice to consumers who want assisted living as an option," argues Dianne Dorlester, executive director of the Maryland Assisted Living Association, which represents 170 assisted-living providers in the state. "Assisted-living facilities are not seeking to have all their patients have serious care needs, such as feeding tubes, but there are exceptions."
But assisted-living providers were able to win some flexibility with another provision that allows them to petition for a waiver to provide higher levels of care through home-care services when the condition of a current resident deteriorates. The waivers would be applied for and awarded on a per-patient basis.
Nursing homes fear the waivers will effectively give assisted-living facilities a chance to cut into their market share of patients who require more skilled care without being subject to the same restrictive rules as licensed skilled-nursing facilities. They at least want to see the number of waivers a facility can receive strictly limited, arguing that the rules as written create an unlevel playing field.
"The regulations lack fundamental fairness because they require one category of providers to meet certain criteria and hold a secondary category of providers, which may provide the same services, to a much lower standard," writes Adele Wilzack, president of the Health Facilities Association of Maryland, in an Aug. 11 letter to Martin P. Wasserman, M.D., secretary of the state health department (See graphic). The HFAM represents more than 160 long-term-care facilities in Maryland.
The assisted-living and nursing home sectors aired their concerns at a Sept. 16 hearing before the Maryland Health Resources Planning Commission. The hearing did not resolve the controversy, but it did bring the divisive issues to the attention of those responsible for determining the state's long-term healthcare strategy. It remains unclear how the emergence of assisted living will affect the state's plans.
For now, the proposed regulations are expected to be reviewed later this fall by the General Assembly's administrative, executive and legislative review committee before being released for another public comment period. Some observers speculate that the controversy may have to be resolved by new legislation when the General Assembly reconvenes in January.