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ASSISTED LIVING RESIDENCESFINDINGS OF CDPHE LICENSE AND COMPLAINT SURVEYS, OCCURRENCE REPORTING, AND OMBUDSMAN ACTIVITESSummary – Preliminary FindingsMarch 7, 2018In Colorado there are 677 licensed assisted living facilities with 22,653 beds according to data provided by the Colorado Department of Public Health and Environment (CDPHE). Only secondary data was used for this report.According to the survey, 97.6% of the facilities are delivering deficient free quality of care according to Chapter VII regulations. Only 2.4% of the facilities were cited for deficient practice for quality of care. LICENSE/COMPLAINT SURVEYA random survey 120 facilities meeting the guidelines of Chapter VII was conducted. The findings of CDPHE on the last two license/complaint surveys that were posted on the Department website were used for the data set. A February 15, 2018 department communication noted there were:403 Facilities 19 beds or less91 Facilities20-49 beds109 Facilities50-99 beds61 Facilities100 beds or moreTo be consistent with the current and proposed regulations, the random sample was stratified as follows:60 Facilities19 beds or less25 Facilities20-49 beds35 FacilitiesMore than 50 bedsA total of 240 surveys were reviewed. 487 deficiencies were cited in the 120 facilities. 40 surveys were deficiency free for Chapter VII regulations. The findings showed an average of 2.44 deficiencies per survey. The top ten cited deficiencies are shown in Table 1. Four of the ten deficiencies related to medication administration, two of the deficiencies related to food safety for facilities with 20 or more beds, and one of the deficiencies related to quality of care.Table 1. Top 10 Licensure/Complaint Survey Results (n = 487 based on 240 surveys reviewed).TAGITEMPERCENTAGE1.107(5)(e)(ii)Compliance with Written Medication Orders9.8%1.111 (P802 #)Environment-Clean, Sanitary, Free of Hazards to Health & Safety; excluding food concerns in small facilities5.7%1.109(2)(b)Food Safety - 20 or more Beds - Follow Retail Food Establishment5.6%1.101(2)(b)Compliance with Chapter II Regulations (includes QMP)5.5%1.107(5)(f)(i)PRN Psychotropic Drugs admin by QMAP without resident request3.6%1.107(4)(d)(i)(A - B)Med-Storage-Central Location(Locked &Compartmentalized)2.8%1.107(1)(b)(i-v)Resident Care Services - Minimum Services 2.4%1.108(4)(a)S E - Admission: Assess Appropriate & Alternative Housing2.3%1.103(7)(a)(i)Compliance with Occurrence Report Requirements2.1%1.107(5)(c)(i)Written Orders - MD or Other Authorized Practitioner2.1%OCCURRENCE REPORTINGThe occurrence reports for January through December, 2015 and January through September 2016 (as posted on the CDPHE website) for approximately 650 facilities were reviewed. The major occurrences include abuse, primarily physical; followed by misappropriation of property; and elopements. Over a nine-month period in 2016, 557 occurrences were substantiated. This represents a 2.6% occurrence rate (n = 22,653 beds in 2017; the most recent bed data available). The root causes for these occurrences were not reviewed. Overall, the incident rate is low. This is similar to the overall low incident rates found in the licensure/complaint survey. TOC \h \z \c "Table" Table 2. Occurrence Reports.Number of Occurrences Reported by YearNumber of Occurrences Substantiated By YearJan – Dec 2015Jan – Sept 2016Jan – Dec 2015Jan – Sept 2016Abuse – Physical215156205137Abuse – Sexual38263726Abuse – Verbal38253517Brain Injury57535651Deaths3221179Drug Diversion71606657Equipment Malfunction2111Misappropriation of property159129142117Missing Resident183118174107Neglect37363430Spinal Cord Injury1010TOTALS833625768557OMBUDSMAN COMPLAINTS FOR NURSING HOMES AND ASSISTED LIVING COMPLAINTSThe 2013, 2014, 2015 and 2016 Annual Reports for the Long Term Care Ombudsman were reviewed. Unfortunately, the annual report includes aggregated data of complaints for both nursing homes and assisted living. Although a request was made to the Colorado State Ombudsman for complaints specific to assisted living, the information was not available at the time this report was published. As noted in the annual reports, the Ombudsman program has enabled more of the complaints and concerns in assisted living to be successfully solved, often without the involvement of CDPHE, Adult Protection, and/or law enforcement.According to the 2015-16 State Ombudsman annual report the proactive skills of the ombudsman resulted in 75% of the complaints being partially or fully resolved to the satisfaction of the resident. The protective oversight provided by the Ombudsman appears to enhance the consumer satisfaction and quality of life in long term care and allows for complaints to be solved before they require compliance intervention by CDPHE. TOC \h \z \c "Table" Table 3. Ombudsman Visits to Nursing Homes and Assisted Living Residences.Mandated Visits to Nursing HomesMandated Visits toAssisted LivingTotal Visits MadeNumber of Visits Made Over the Mandated Visits to both nursing homes and assisted living2Total number of complaints that were investigated in nursing homes and assisted living201324362376767828663678201426402428791928313848201526642468858634543897201626762524767524253719 TOC \h \z \c "Table" Table 4. Top Five Complaints for Nursing Homes and Assisted Living Residences2.2013201420152016Resident Care78984311261100Autonomy/Choice/Preference/Exercise of Rights/Privacy638517Admissions/Discharge/Eviction347311340Environment302314Staffing233244Quality of Life7151140Residents Rights6781132Administration340365Outside Agencies/Entities169Total # of Nursing Home/Assisted Living Beds20,15820,68520,00621,3092 Information taken from the Colorado Long-Term Care Ombudsman Program and Legal Assistance Developer Program Annual Reports, 2013, 2014, 2015 and 2016.CRITICAL IMPACTS OF SELECTED PROPOSED REGULATIONS, ESPCIALLY ON SMALL BUSINESSFirst and foremost, none of the secondary data appears to support the entire re-write of the Chapter VII regulations. The most violated Chapter VII rule is “compliance with written medication orders”. While this might have significant impact on the delivery of care, without further study the data does not reflect the impact of compliance with written medication orders. Compliance with food safety and kitchen regulations were a problem for the large facilities, but not the small facilities. Abuse, misappropriation of property, and elopement were the most common occurrences, but the frequency does not support the entire re-write of the rules. Lastly, the role of the Ombudsman in resolving complaints appears to be a major factor in providing high quality of care. Further study is needed to determine if there is a relationship between the Ombudsman program and CDPHE in the enforcement of Chapter VII regulations. However, the Department has presented an entire re-write of the regulations. Through a variety of industry group meetings and informal discussions, it has been determined the proposed rules will significantly impact how assisted living services are delivered by the small to medium size facilities. The proposed regulations will result in changes in the scope of practice, operational costs, staffing requirements, increased kitchen and food safety requirements, rates, and low Medicaid reimbursement.Additional, the data was reviewed using the licensure/complaint survey findings and the proposed new regulations to begin to identify the impact on the operations of small businesses. The preliminary findings suggest that the regulations will negatively impact the delivery of assisted living services, especially by small businesses as described below.ADMINISTRATOR REQUIREMENTSLicensure/Complaint Survey Findings: Only two citations were issued for deficient practice in a sample of 240 surveys.Administrator. Sections 6.2 – 6.7. The proposed rules change the age, the academic requirements, the years of experience and type of experience required to be an administrator. Impact. The proposed regulations will reduce the available workforce of administrators to operate assisted living residences. The data does not support the need for enhanced qualifications, especially the need for formal academic training in health related areas of study, preferred licensure in health care, and past experience in health care. STAFF TRAINING REQUIREMENTSLicensure/Complaint Survey Findings: Fourteen citations were issued for deficient practice in a sample of 240 surveys.Staff Training. Sections 7.1, 7.9, 7.16-7.22, 8.5, 8.6, 12.15-12.17. The proposed regulations make significant increases in staff training and add competency training as well as supervisors to train administrative staff to provide frontline worker training.Impact. While additional training is an important feature of providing high quality of care, it drives increased costs to assisted living residences to operate. Despite the low number of citations for deficient practice according to the data, the occurrence report analysis and the ombudsman reports, the regulations significantly increase the type of training, the duration of the training, and the competency evaluations of the training. Some Assisted Living businesses are estimating that to meet the proposed additional training requirements, training time and costs will increase by up to 300%. The external pressures of a low unemployment rate will result in a lack of manpower in the workforce, mandatory wage increases will drive costs of delivering care, and increased training requirements of the proposed rules will most likely result in staff shortages. INCREASED STAFFING REQUIREMENTSLicensure/Complaint Survey Findings: N/AIncreased Staffing: Sections 8.1, 16 and 17, 12.15, 12.22-12.29. Some assisted living residences will be required to hire additional nighttime staff to meet Department of Labor laws of six hours of continuous sleep and the required nighttime safety checks of the proposed rules; facilities will most likely be required to increase staffing to meet the guidelines of the Retail Food Establishment kitchens. The proposed rules will require some facilities to establish new hiring requirements for engagement staff with previous experience in engagement.Impact. The data from the licensure/complaint survey does not support the need for small facilities to meet Retail Food Establishment Kitchen guidelines. To be in compliance with the proposed regulations, many assisted living residences will be required to hire additional staff to meet these requirements. With the mandated minimum wage standards, many businesses do not expect to be able to meet their budgets based on revenues from private pay and/or Medicaid without increasing rates.KITCHEN AND FOOD SAFETY REQUIREMENTSLicensure/Complaint Survey Findings: One citations was issued to small homes under 20 beds for food safety and 9 citations were issues to small homes under 20 beds for environment related to food safety; 30 citations were issued to facilities over 20 beds for food safety for not following Retail Food Establishment guidelines and an additional 30 citations were issued to facilities over 20 beds for lack of clean, sanitary, and free of hazards and safety to facilities larger than 20 beds.Kitchen Safety. Sections 16 and 17. All facilities will need to meet Retail Food Establishment guidelines.Impact. The data does not support the need for small facilities under 20 beds to meet Retail Food Establishment guidelines. Under the proposed rules, small facilities will be required to hire additional staff, provide additional training, and increase prices to be in compliance. These requirements adversely impact the person centered, home like environment in kitchens that is one of the gold standards for small assisted living residences.MEDICAID REIMBURSEMENT ISSUESLicensure/Complaint Survey Findings: N/APACE and Medicaid Reimbursement: The proposed regulations do not address Medicaid reimbursement directly; however, the low reimbursement rate of Medicaid with the increased labor and training costs are a disincentive to providers to continue to provide care to low income residents. The Joint Budget Committee is considering a proposal to make a 25% increase per day in reimbursement to Medicaid providers, making the reimbursement approximately $2700/month. However, even the proposed reimbursement increase is not expected to be adequate to meet the increased costs of administrator qualifications and training, staff training and qualifications, and kitchen safety guidelines.The legislature has passed and sent to the Governor for signature a cap on the annual fees starting July 1, 2019. The bill provides for doubling and tripling some of the license and bed fees on July 1, 2018 and again on July 1, 2019. It does cap the fees at the rate of inflation after July 1, 2019.Impact: The increased costs for staffing, training, and other operations are not fully offset by the proposed cap in fees and the proposed increase in Medicaid reimbursement. More businesses, especially small business (those serving 19 or less residents) are reviewing budgets, giving notice to residents of closures, and, in some instances, evaluating whether they can avoid bankruptcy under the proposed regulations. The impacts to residents include displacement, homelessness, and living their last days in a nursing home rather than their community.SUMMARYThe agencies that provide services on a daily, ongoing basis provide an exceptionally high standard of care which is reflected the findings of the licensure/complaint survey. Of the random sample, 17% of the facilities that were reviewed were deficiency free for Chapter VII regulations. The random sample reflects that 97.6% of the resident care that was provided met regulatory standards while only 2.4% failed to meet minimum standards. The egregious nature of a few selected assisted living facility outliers does not reflect the overall performance of the delivery of services by assisted living facilities on a day to day basis and is supported by the data. CDPHE is to be applauded for taking aggressive action against a facility that experiences “significant problems”, rather than allowing the facility to continue to operate and provide substandard care. However, even this aggressive action has resulted in less than 10 facilities being closed by CDPHE in the past five years. The closure of this low number of facilities does not warrant a re-write of the Chapter VII.The proposed Chapter VII rules will impose a significant burden to the industry, especially small businesses. In addition to Chapter VII, the industry must also comply with Volume 8.495, OSHA, Life Safety, and local ordinances such as zoning. All businesses must meet the additional government mandates such as Workman’s Compensation, liability insurance requirements, Family and Medical Leave, Equal Employment Opportunity, and Discrimination laws. Prior to passage of the proposed rules by the Board of Health, the data supports the need for further review of how the entire re-write of Chapter VII will improve quality of care and allow residents to live in the community in a setting of their choice. Although this report is not conclusive, it is clear that further study is required to determine how the proposed new standards will improve the delivery of care. Special attention must be paid to reduce risk of displacing of residents from their homes. Due to lack of funds and availability of beds, many of those who are being displaced will die in nursing homes. Based on the available data, the assisted living industry is well-run and provides critical long term services. Some small businesses have already announced they are reducing services to Medicaid populations and/or going out of business due to proposed regulations. These regulations have not been tested and demonstrated to conclusively improve quality of life for frail seniors and the chronically mentally ill. Rather, they appear to be causing more harm by displacing residents, even before they have been fully vetted to the Board of Health. ................
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