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S. HRG. 112–91 

ASSISTED LIVING AT THE DAWN OF AMERICA’S 

‘‘AGE WAVE’’: WHAT HAVE STATES ACHIEVED 

AND HOW IS THE FEDERAL ROLE EVOLVING? 

ROUNDTABLE 

BEFORE THE

SPECIAL COMMITTEE ON AGING 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

WASHINGTON, DC 

MARCH 15, 2011 

Serial No. 112–2 

Printed for the use of the Special Committee on Aging 

( 

Available via the World Wide Web: http://www.fdsys.gov 

(II) 

SPECIAL COMMITTEE ON AGING 

HERB KOHL, Wisconsin, Chairman 

RON WYDEN, Oregon 

BILL NELSON, Florida 

BOB CASEY, Pennsylvania 

CLAIRE MCCASKILL, Missouri 

SHELDON WHITEHOUSE, Rhode Island 

MARK UDAL, Colorado 

MICHAEL BENNET, Colorado 

KRISTEN GILLIBRAND, New York 

JOE MANCHIN III, West Virginia 

RICHARD BLUMENTHAL, Connecticut 

BOB CORKER, Tennessee 

SUSAN COLLINS, Maine 

ORRIN HATCH, Utah 

MARK KIRK III, Illnois 

JERRY MORAN, Kansas 

RONALD H. JOHNSON, Wisconsin 

KELLY AYOTTE, New Hampshire 

RICHARD SHELBY, Alabama 

LINDSEY GRAHAM, South Carolina 

SAXBY CHAMBLISS, Georgia 

DEBRA WHITMAN, Majority Staff Director 

MICHAEL BASSETT, Ranking Member Staff Director 

(III) 

CONTENTS 

Page 

Opening Statement of Senator Bob Corker ........................................................... 1 

PANEL OF WITNESSES 

Susan Dentzer, editor-in-chief of Health Affairs ................................................... 3 

Josh Allen, a registered nurse and President of the American Assisted Living 

Nurses Association ............................................................................................... 4 

Christy Allen, Assistant Commissioner for the Tennessee Department of 

Health’s Bureau of Health Licensure and Regulation ...................................... 4 

Eric Carlson, Directing Attorney for the National Senior Citizens Law Center 4 

Krista Hughes, Director of the Arkansas Department of Human Services 

Division of Aging and Adult Services ................................................................. 4 

Howie Groff, President and CEO of Tealwood Care Centers, Immediate Past 

Chair, National Center for Assisted Living ....................................................... 4 

Henry Claypool, Director of the Office on Disability at the Department of 

Health and Human Services ............................................................................... 5 

Julie Strauss, Interim Administrator for the Office of Licensing and Quality 

of Care with the Seniors and People with Disabilities Division in Oregon .... 5 

Patricia Will, Founder and CEO of Belmont Village Senior Living .................... 5 

Barbara Edwards, Director of the Disabled and Elderly Health Programs 

Group with the Federal Medicaid Program at CMS ......................................... 5 

Kevin Coughlin, Director of the Bureau of Assisted Living in Wisconsin .......... 5 

Charley Reed, a Member of the AARP Board of Directors and Chair of 

the AARP Insurance Trust .................................................................................. 5 

Larry Polivka, Executive Director of the Claude Pepper Center at Florida 

State University ................................................................................................... 6 

Irene Collins, Commissioner for the Alabama Department of Senior Services .. 6 

Robert Jenkens, Director of the Green House Project .......................................... 6 

Michael Vaughn, Acting Director of Asset Management and Lender Relations, 

Office of Residential Healthcare Facilities, U.S. Department of Housing 

and Urban Development ...................................................................................... 6 

Brenda Bacon, Vice Chair of Board of Directors of the Assisted Living Federation of America and Preisdent and CEO of Brandywine Senior Living .......... 6 

Barbara Lyons, Senior Vice President of the Henry J. Kaiser Family Foundation and Director of the Kaiser Commission on Medicaid and the Uninsured ...................................................................................................................... 7 

Martha Roherty, Executive Director of the National Association of States 

United for Aging and Disabilities ....................................................................... 7 

APPENDIX 

Participants’ Biographies and Organization Information .................................... 52 

Responses to Chairman and Ranking Member Questions ................................... 62 

STATEMENTS SUBMITTED FOR THE RECORD: 

Prepared Statement of Howie Groff, President and CEO of Tealwood Care 

Centers, Immediate Past Chair, National Center for Assisted Living ............ 205 

Prepared Statement of Michael Vaughn, Acting Director of Asset Management and Lender Relations, Office of Residential Healthcare Facilities, 

U.S. Department of Housing and Urban Development ..................................... 224 

ADDITIONAL STATEMENTS SUBMITTED FOR THE RECORD: 

Freddie Mac ............................................................................................................. 228 

Page

IV 

Charla S. Long, Creator and Director, TransformAging Program, Lipscomb 

University ............................................................................................................. 230 

Long Term Care Community Coalition .................................................................. 235 

National Association of States United for Aging and Disabilities ....................... 239 

(1) 

ASSISTED LIVING AT THE DAWN OF AMERICA’S ‘‘AGE WAVE’’: WHAT HAVE STATES 

ACHIEVED AND HOW IS THE FEDERAL 

ROLE EVOLVING? 

TUESDAY, MARCH 15, 2011 

U.S. SENATE, 

SPECIAL COMMITTEE ON AGING, 

Washington, DC. 

The roundtable was commenced at 1:01 p.m., in Room SH–216, 

Hart Senate Office Building. 

Present: Senators Kohl and Corker. 

Moderator: Susan Dentzer, editor-in-chief of Health Affairs 

OPENING STATEMENT OF SENATOR BOB CORKER 

Senator CORKER. My name is Bob Corker. I am a Senator from 

Tennessee and used to be involved heavily in State government as 

Commissioner of Finance. 

I know Christy Allen is from Tennessee here, and I know that 

States all across our country have really been updating their State 

regulations as it relates to assisted living. All of you are here today 

to have a great roundtable. 

Senator Kohl is the chairman of the committee, and he is on his 

way. And I know all we are doing is kicking this off. The brain 

trust of people around this table are going to talk about many of 

the issues dealing with assisted living. 

But with 70 million folks coming along with the baby boom generation that I am a part of, and with all of the issues that I know 

we have to deal with, I am glad that you are here together. Assisted living has provided a great private-pay alternative for numbers of people. I know my parents have participated to a degree in 

that. Many of yours have done the same. Some of you may have 

done it yourself. 

But the fact is that it is a great time for you all to be here. Obviously, our budgets here are under tremendous strain. I think you 

know that. And having an option like this that is more affordable, 

that in many ways is mostly private pay, is something that is very 

good. And I know that each of you is going to be heavily involved 

in a great discussion for 3 hours. I know a lot is going to be 

learned, and I welcome you here to the Capitol. 

I think Chairman Kohl, I saw out of the corner of my eye, has 

just walked in. He is a great leader of the Aging Committee. I 

know he will have a few words of welcome. But I want to thank 

all of you who have come here to talk about this very important 

2 

issue at a very important time, and we certainly look forward to 

what you have to say. 

Thank you very much. 

Thank you, Susan for moderating. 

The CHAIRMAN. Hello, Bob. 

Senator CORKER. Hello, Chairman. I am going to step out and 

give you this seat. You will have much wiser things to say. 

The CHAIRMAN. Well, Bob Corker, you know, is a very accomplished businessman from Tennessee, and I have done some work 

in my life in the area of business also. So we have a lot in common. 

One way that I relate to people when they come to Washington 

from all different parts of the country is I ask them where they are 

from, and they say where they are from. And I say, ‘‘Well, do you 

shop at the Kohl’s store in that city?’’ 

[Laughter.] 

And so, we start a beautiful relationship and a friendship. I am 

from that family. Our family started the Kohl’s stores way back— 

well, we started them in 1962, we opened our first Kohl’s department store. 

That was, by coincidence, the same year that Wal-Mart opened 

their first store. They are much further ahead than we are. The 

family does not own the business anymore, but as matter of fact, 

my parents were immigrants from Europe. They came to the 

United States and met and married around the Great Depression. 

And in the late 1920s opened up a little grocery store on the south 

side of Milwaukee no bigger than a closet. 

And that was the beginning of the Kohl’s stores. We were first 

a supermarket business and then a department store business. 

I worked at the Kohl’s stores for many years, and I had a chance 

to be president for a while. And then the family decided they wanted to do something else with their lives. So the business got sold, 

and then I did one thing good, one thing bad. 

The good thing I did was run for the Senate. The bad thing I did 

was buy a basketball team. 

[Laughter.] 

I bought the Milwaukee Bucks, and that has been a lot of fun, 

too. But most of all, I am a public servant now, and I very much 

appreciate what I am doing. I know how important it is. 

And when we sold the business, I wondered what I would do 

with the rest of my life, but I certainly have found a calling that 

I like and enjoy. And I like serving people. I like dealing with problems and trying to find ways to improve the quality of lives of people in my State, but also around the country. So this has been a 

grand, grand experience for me. 

And we are so happy that you are all here today because assisted 

living, as you know, is a huge, huge part of American life, and it 

is becoming bigger and bigger. I think that assisted living in the 

years and decades to come is going to become enormous in terms 

of the purpose it serves in our country and how many people will 

be engaged in assisted living. 

And we will need all the expertise and the good ideas and 

thoughts that you have that we can possibly come up with in seeing to it that assisted living performs its function in our society in 

the best possible way, as it undoubtedly will have to be done inVerDate Nov 24 2008 11:13 Sep 14, 2011 Jkt 067530 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 C:\DOCS\67530.TXT SHAUN PsN: DPROCT
3 

creasingly and can be done very well. As you know, it can be a really nice way for people to grow older and live lives that are fulfilling. 

So it is well that you are here. And I know I have a Wisconsin 

guy, Kevin Coughlin, here, and we appreciate that you are here. 

We appreciate your role in assisted living in Wisconsin. You do a 

great job, and I am familiar with all the good things that you do 

in our State. Thank you so much for being here. 

And we have a great moderator. Thank you so much for your 

work. 

And I have a woman on my staff by the name of Anne Montgomery, who you probably know. She is as good as they come. 

When it comes to issues that are facing aging Americans, including 

assisted living issues, she is a very, very bright woman, works very 

hard, as you know, and she is always pushing me to do better. I 

am never doing good enough, which is what you want, I suppose. 

I suppose. 

[Laughter.] 

She is a good, good lady. And Deb Whitman is my head of the 

Aging Committee for me, and she has done an outstanding job also. 

So I am blessed that I work with them, and I am very blessed that 

you are here today. And I wish you well. 

On Tuesday, both parties have their weekly lunch. Senator 

Corker has his, and I have mine. So I will be leaving. But again, 

I thank you all for being here, and I wish you well. 

Ms. DENTZER. Thank you very much, Senator Kohl. 

And thanks to Senator Corker, who has now moved on to his 

weekly luncheon. 

Good afternoon, all of you. I am Susan Dentzer. I am the editorin-chief of Health Affairs and happily was engaged by Anne and 

her colleagues to lead this roundtable discussion this afternoon. 

This is a roundtable, notwithstanding the configuration of the 

table that you see is rectangular. But it is roundtable in every 

sense of the word in that we really hope to engage all of you actively in today’s discussion. 

As you see from the notes that we sent you on this meeting, we 

will be discussing three topics: the quality and oversight of assisted 

living, including, importantly, the area of consumer disclosure. We 

will range into affordability and reimbursement policies, including 

public financing through housing tax credits and subsidies and private payment supplementation. And then we will also spend some 

time on some access and discharge issues. 

We will be going until 4:00 p.m., and we have, as we say in television, a ‘‘hard out’’ at 4:00 p.m. We have to leave the room promptly at that point. So we are going to try to keep each of these discussions on track at a little less than an hour. 

We will take a 5-minute break after the second hour of conversation, and then we will resume for the last hour. And then, as I say, 

we will end promptly at 4:00 p.m. 

Just a couple of housekeeping details. When you speak today, 

please use your microphones. You are going to have to press this 

little button in front of you and make sure the red light comes on. 

And then those who run the audio-visuals here have asked me to 

4 

make certain to tell you to log off at that point so that the mike 

can be passed to the next speaker. 

We are going to begin. Many of you, I think, are known to many 

of you, but not all of you are known to all of you. So we are going 

to try to move very swiftly through a round of introductions so that 

we can rectify that. 

What I would like to ask you to do is we will go around the room. 

We will start this way. And if you could just introduce yourself by 

name and title, and then maybe just a quick sentence about what 

in particular—what for you is the burning platform issue around 

assisted living that partly motivated you to be here today. 

And I am going to start with the family reunion we have up here, 

the Allen twins. Actually, there is no relation, as I understand it. 

Mr. JOSH ALLEN. Not that we know of. 

Ms. DENTZER. Yes, right. None that you could trace, anyway. So, 

Josh, why don’t you begin? 

Mr. JOSH ALLEN. My name is Josh Allen. I am a registered 

nurse, and I am here to represent the American Assisted Living 

Nurses Association. 

Having quite literally grown up in the industry, with the family 

business and working as a corporate nurse for many years, the 

quality of care within assisted living is near and dear to my heart. 

I know that it can represent a wonderful model of housing and care 

for many older adults. 

Ms. DENTZER. Christy? 

Ms. CHRISTY ALLEN. My name is Christy Allen. I am the Assistant Commissioner for the Tennessee Department of Health’s Bureau of Health Licensure and Regulation. So I am one of those regulators. 

Organized within my bureau are about 22 different licensing 

boards, one of which is the board that licenses healthcare facilities, 

such as assisted care living facilities. The issue, first and foremost, 

for that board is to remain consistent with the assisted care living 

philosophy of promoting independence and individuality and aging 

in place while balancing and ensuring proper compliance with quality of care and life safety standards. 

Mr. CARLSON. My name is Eric Carlson. I am with the National 

Senior Citizens Law Center. I have worked in long-term care for 

20 years. 

My burning issue here is trying to articulate how a lot of these 

issues look from a consumer point of view. I have represented consumers for all of those times and have heard their real-life problems, and I want to be able to explain those to the best of my ability so that our public policy can better accommodate what folks 

need. 

Ms. HUGHES. I am Krista Hughes, the director of the Arkansas 

Department of Human Services Division of Aging and Adult Services. 

I am here today concerned about quality of care, quality of life, 

and affordability issues for assisted living going forward. 

Mr. GROFF. I am Howie Groff, President of Tealwood Care Centers. I am here today representing the National Center for Assisted 

Living as its past chair. The burning issue I think people need to 

understand is that assisted living is a dynamic, cost-effective, and 

5 

resident-centered level of care that is very important to the entire 

long term care spectrum. 

[The prepared statement of Howie Groff appears in the Appendix 

on page 205.] 

Mr. CLAYPOOL. I am Henry Claypool, the director of the Office 

on Disability at the Department of Health and Human Services. 

And I am here really today, hopefully, to learn something from 

you all, as we really grapple with some of the needs of younger people with disabilities and those that are older. The mix is something 

that can be quite complex. A lot of the wisdom in the room today 

can help inform some of our work at HHS. 

Ms. STRAUSS. I am Julie Strauss. I am the interim administrator 

for the Office of Licensing and Quality of Care with the Seniors 

and People with Disabilities Division in Oregon. 

And to reiterate from the other States, quality of care, quality of 

life issues continue to be where we are most interested, as well as 

sustainable models for ensuring independence and choice. 

Ms. WILL. I am Patricia Will. I am the founder and CEO of Belmont Village Senior Living, which operates assisted living communities in six States. I am here as the immediate past chair of the 

American Seniors Housing Association. 

We are principally interested in promoting quality, independence, and choice in our industry. But more than anything else, I 

am here today to collaborate with the various players at the table 

to find better answers. We call our industry ‘‘a work in progress,’’ 

where the answers come from the people in this room. 

Ms. EDWARDS. I am Barbara Edwards. I am the Director of the 

Disabled and Elderly Health Programs Group with the Federal 

Medicaid Program at CMS. 

I am here because, obviously, Medicaid is an important funder of 

long-term services and supports for many of frail elderly, but also 

younger persons who live with disabilities in our communities. We 

are very interested in learning how we can best align Federal policy in the Medicaid program to help States offer the kinds of options for individuals that promote independence, choice, and assure 

that they have the opportunity to live in their communities and 

fully participate. 

Thank you. 

Mr. COUGHLIN. Hi. I am Kevin Coughlin. I am the director of the 

Bureau of Assisted Living in Wisconsin. 

And I think what really I am interested in is really that whole 

quality discussion. I think there is a way that we can improve the 

quality in assisted living with a real collaborative approach. There 

needs to be a lot of people involved in this topic. So I am very interested to be here and to hear all the experts and what they have 

to say. 

Mr. REED. My name is Charley Reed. I am from Washington 

State. I am a member of the AARP Board of Directors, and I used 

to be the director of the long-term care program in Washington 

State. I was involved in developing that program. 

And I am here representing consumer interests about assisted 

living. We are very interested in developing a good, high-quality 

service in the array of services for people to choose from in the 

6 

community. And so, we are very interested in assisted living and 

whatever we can do to promote a high-quality service. 

Mr. POLIVKA. My name is Larry Polivka. I am director of the 

Claude Pepper Center at Florida State University and a former director, like Charley, of the State Unit on Aging in Florida and have 

been long interested in assisted living and other community residential and alternatives in the long-term care system. 

And there are many burning issues. In fact, most of them are 

very much interrelated. But two that I have had in mind for over 

20 years is how do you make this option as available as possible 

to low-income people, especially through the Medicaid program and 

through the waivers and maybe other approaches within Medicaid, 

and maintain a regulatory framework that doesn’t have the program blur into some kind of slightly less regulated or costly nursing home program? 

And I think that is something that has become increasingly urgent as the program has expanded, including in the public sector. 

Ms. COLLINS. I am Irene Collins. I am the Commissioner for the 

Alabama Department of Senior Services. 

One of the things that I am very interested in hearing today is 

about this continuum of care, long-term care, and the role that assisted living actually plays in it and also a determination actually 

of what assisted living is. 

Mr. JENKENS. That is helpful. 

[Laughter.] 

I am Robert Jenkens with NCB Capital Impact. We are a D.C.- 

based nonprofit who works with States and communities to develop 

innovations serving people with low incomes. I am the director of 

the Green House Project, which is working with many of the States 

that you represent here today to create a small home option for 

skilled nursing homes, as well as the former director for the Coming Home program, which worked with nine States to create affordable assisted living programs with the Medicaid agency, housing finance agency, and regulatory agencies. 

My burning issue is creating more affordable assisted living to 

serve people with the lowest incomes. 

Mr. VAUGHN. My name is Michael Vaughn. I am with the Department of Housing and Urban Development, the Office of Housing and, specifically, the Office of Healthcare Programs. I am the 

director of asset management for the Office of Residential Care Facilities. 

[The prepared statement of Michael Vaughn appears in the Appendix on page 224.] 

And I am here to give some examples of how HUD funding enables affordable assisted living solutions in many different types 

and also to learn what we can do to work with the people we have 

heard from, from Robert and Kevin and the State people, and work 

with Barbara’s organization to provide more solutions to provide affordable assisted living. Thank you. 

Ms. BACON. Thank you. I am Brenda Bacon. I am Vice Chairman 

of the Assisted Living Federation of America and the CEO of Brandywine Senior Living. We own and operate assisted living communities in five States, and I am also a former regulator. So a lot of 

what I hear you talking about in terms of wanting to work with 

7 

the assisted living communities and to provide access to seniors is 

something that very much resonates with me. 

I think assisted living is an excellent opportunity for seniors to 

have choice about where to live when they can no longer live at 

home or no longer want to live with their families but want to still 

have the independence and the quality of life of being at home. 

Ms. LYONS. I am Barbara Lyons, a senior vice president with the 

Kaiser Family Foundation and director of the Kaiser Commission 

on Medicaid and the Uninsured. The commission has tracked coverage and financing issues in the Medicaid program over the past 

two decades. 

So I am here because assisted living is part of the long-term care 

continuum, and on the commission, we are interested in how delivery of long-term care services is changing over time and what that 

means for the people served by the program. 

Ms. ROHERTY. Last, but not least. I am Martha Roherty, and I 

am the executive director of NASUAD, and that is the organization 

that represents the State agencies on aging and disabilities. 

And I am here for a couple of reasons, one of which is that our 

agencies administer the Medicaid waiver program for the most 

part. All of our State agencies also help to provide options counseling for long-term services and supports for the consumers, both 

public and private pay. And so, obviously, assisted living is one of 

the most important options in that long-term services and supports 

array of services. 

And also because our agencies help to administer the ombudsman program, and this is one of the confusing areas with the longterm care ombudsman program. 

Ms. BACON. Susan. 

Ms. DENTZER. Thank you, Brenda. And thanks to all of you. As 

you can see, we have a great group assembled to deal with these 

issues across various spectrums—from the consumer standpoint, 

from the provider standpoint, from the regulator standpoint, and 

those who also are looking at the big picture. 

What we are going to do now is move into our first pod of questions to discuss, if you will. And this is the general area of quality 

and oversight. We are going to talk about what some of the leading 

State models are with respect to consumer disclosure standards. 

We will talk a bit about what are—answering the question, 

‘‘What is assisted living?’’ What are the essential services, the core 

philosophy, the other characteristics of assisted living that allow 

this combination of independence and privacy and autonomy and 

choice? 

We are going to talk about ways that States have developed to 

balance the issue of quality of assisted living services under Medicaid in particular, while not treating it differently from other home 

and community-based services and the role of State oversight. 

We want to talk about whether there are any key physical plant 

features that distinguish assisted living from institutional nursing 

facility models. We would like to bring up the topic of whether 

there should be a Federal floor in terms of services that are offered 

by Medicaid-participated assisted living facilities, and also should 

there be a Federal ceiling, a maximum level of care that would disVerDate Nov 24 2008 11:13 Sep 14, 2011 Jkt 067530 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 C:\DOCS\67530.TXT SHAUN PsN: DPROCT
8 

tinguish assisted living from independent living with home care 

services? 

And then, finally, a topic we would like to get to, assuming there 

is time, is are there any minimum explicit or implicit Federal expectations or requirements for State oversight and monitoring of 

assisted living? 

So, with that, what I would like to do now is turn to some of our 

colleagues who come from State government to begin to talk about 

some of this, starting with, for example, the essential services, the 

core philosophy, and so on, answering the question, ‘‘What is the 

definition of assisted living in your State?’’ And then moving on to 

some of these other issues—consumer disclosure standards, et 

cetera. 

And so, Christy, Irene, Kevin, and Krista, as our representatives 

from the States, why don’t you begin? And Christy, let us start 

with you. 

Ms. CHRISTY ALLEN. Sure. I will. We were talking beforehand. In 

the State of Tennessee, our oversight of the long-term care system 

is shared among several different agencies. There is the Department of Health that is responsible for the licensure and the annual 

survey process. 

So my piece of it is almost purely regulatory. We do work closely, 

though, with our Department of Finance and Administration’s 

TennCare Bureau, which is the Medicaid administrator for the 

State. 

Over the last couple of years, collectively, we have made some 

great strides in making assisted care more available to more people 

through the CHOICES program and then, last year, through the 

implementation of a new licensure law for adult care homes, which 

accept traumatic brain injury patients and ventilator-dependent 

patients. 

That is a very, very new program. We have received one application. I think the idea is that over time it will grow, and I know that 

Oregon was a model for us in connection with that. 

One critical area of the law that has helped get the board to start 

thinking differently about long-term care was the ability for a hospice patient to be admitted to and remain in assisted living so long 

as the facility could properly care for the resident’s needs. And that 

sort of leads me into a discussion about what makes assisted living 

philosophically different from the other types of facilities that we 

regulate in my department? 

One of the key examples is in staffing requirements, where, for 

nursing homes, there is a rigid staffing requirement set out in the 

law and then repeated in the rules. For assisted living, there need 

only be a responsible attendant, as defined by the law, and whatever staff is appropriate to all of the residents’ level of need. 

So that gives the facilities more flexibility in being able to develop individualized plans of care, the idea being that each resident 

will get the level of care that is appropriate to him or her and allow 

him or her to age in place in that facility. We have had a lot of 

discussions in the State about that, the overall idea being to retain 

as much independence as possible. 

One thing that I looked at before I came up today was sort of 

a comparison between different facility types and enforcement. 

9 

Nursing home enforcement, nearly every—I will take that back. 

Many, many surveys result in several, several violations. We don’t 

see that as much with assisted care living facilities. 

I think during calendar year 2010, there were only a few sub- stantiated complaints. And of those, they resulted in under $10,000 

total civil penalties. So that tells me that the regulations are probably appropriate to the type of facility and that facilities are meeting those regulations. 

I don’t know if that is sort of what you were looking for, but I 

feel like that is a good balance. There are still applicable building 

and life safety standards. People still need to be able to get out in 

case of a fire. But they aren’t as rigid as they are for some other 

facility types. So, you know, somebody who is in assisted living can 

have assistance to get out. They don’t have to ambulate out on 

their own. 

Ms. DENTZER. And do you want to take up some of the topics 

about floors on services or ceilings on services? Is any of that dealt 

with in State statute? 

Ms. CHRISTY ALLEN. That is not within any of our regulatory 

piece of the statute. Ours is purely minimum standards for licensure and minimum standards for quality of care. 

The payment aspect of it happens over with our TennCare oversight bureau. I am sorry, with our TennCare bureau, and it is primarily through the CHOICES program. And they do set that, I believe, in their rules every so often. They do look at that every year. 

But you will have to come back to me on that one. 

Ms. DENTZER. And in terms of the requirements for State oversight and monitoring, are the inspections required? How often? 

What is the—— 

Ms. CHRISTY ALLEN. The inspections are required annually. 

There is an annual licensure requirement. So like every other facility that is licensed, an inspection will take place every 12 to 15 

months. And any failure to comply with all of the standards that 

are adopted results in the facility being asked to submit a plan of 

correction within a certain period of time. And if they don’t, then 

there are penalties that can potentially accrue. 

What we find is that when notified prior to leaving the facility 

of the deficiencies, they correct them. And again, I think, you know, 

in nursing homes you find a lot of deficiencies related to staffing 

ratios. You don’t find that in assisted living, so long as there is an 

appropriate level of care. 

Similarly, there is a lot of emphasis in the Tennessee rules on 

the collaborative care plan. The physician working with the assisted care living facility, if appropriate, with the hospice provider, 

if that is involved as well. So that it is a personalized care plan 

with the oversight of the resident’s physician. 

Ms. DENTZER. Okay. And then just finally to clarify, you mentioned the adult care homes. 

Ms. CHRISTY ALLEN. Yes. 

Ms. DENTZER. That is a separate category, separate and distinct 

from assisted living, even though it is going to look and smell a lot 

like assisted living, it sounds like? 

Ms. CHRISTY ALLEN. It will look like it, but it is very different. 

It is there are single-family residences in which 24-hour residential 

10 

care, including assistance with activities of daily living, is provided 

in a home-like environment to no more than five elderly or disabled 

adults. 

So it is almost like it is a combination of the Green House model 

with an assisted living model, and it is a small home, single-family 

residence. And I think the intent is that people will care for people 

not related to them in a very small number and create as much of 

a home-like environment as possible. 

Again, that is very new. We have one pending application. I look 

forward to seeing how that program grows over time. 

Ms. DENTZER. Great. Okay. Well, thank you very much. 

Let us move on to Krista, and give us a sense of the lay of the 

land in Arkansas, Krista, if you would? 

Ms. HUGHES. In Arkansas, the licensure and regulatory agency 

for the assisted living industry is the Office of Long-Term Care, 

which is located within the Division of Medical Services, or the 

Medicaid agency. 

We in the Division of Aging and Adult Services administer the 

Medicaid waiver, called Living Choices, and so we operate with an 

interagency agreement with Medicaid, and we have to stipulate 

how we ensure the quality of care, how we ensure qualified providers, the plan of care, the annual level of care determinations, 

and the financial accountability of the providers. That is pretty 

much our role. 

One of the things that—and just correct me if I get off base from 

what you are wanting. When I started looking at the regulations, 

you know, I actually managed some assisted living properties in a 

former life. And so, you read them from different perspectives, depending on what hat you are wearing, and I had to brush up on 

this. 

And what I noticed when I started looking at the regulations, we 

have a different set of regulations for residential care facilities, 

which were our 1970s version of boarding care homes and the preemptive entity for what is now assisted living. But we still have 

regulations governing residential care facilities. There is a moratorium on the development of any residential care facilities in Arkansas, going forward. 

Then we also have two different levels of care for assisted living 

in our State. We have Assisted Living Level I. That has its own 

separate regulations. And then we have Assisted Living Level II, 

which does bring in nursing services into the assisted living facility. That has a separate set of regulations. 

So I didn’t bring my regulations. There are a lot of them. But 

what I did notice in reading them is that, philosophically, the assisted living regulations, it just has totally different language. It 

speaks to self-direction, the personal decision-making authority. It 

speaks to the configuration of the apartment being such that it 

maximizes one’s choice and chance for independent living. 

I mean just the entire set, throughout the entire set of the regulations, the wordage is just so utterly different. So that is the philosophy. I am trying to go through my notes. So that is the philosophy. 

Ms. DENTZER. No, very helpful. 

11 

Ms. HUGHES. In terms of core services, we do have core services 

stipulated, and that includes 24-hour staff; assistance with obtaining emergency care; assistance with social, recreational, and other 

services; assistance with obtaining transportation; linen service; 

and three meals a day. So that is our base or the floor. In addition 

to that, facilities can provide other services on a negotiated basis 

with an individual and their families. 

We, like Tennessee, have a flexible staffing pattern within the 

regulations, but we do have a floor on that as well. So, regardless, 

we do say ‘‘staff to meet your needs,’’ but we also do have a floor 

for the staffing as well. 

Arkansas does, by law, require a disclosure statement, and the 

disclosure statement has to speak to—is that me? I am going to try 

that. 

Okay. The disclosure speaks to that you have to show that you 

are licensed. You have to show what services you provide. All of 

this is in advance to any level of move-in. The services have to stipulate, the ones that I just mentioned, the core services and any others that can be negotiated. It speaks to staffing, what is required 

in the regulations what you have in your facility. 

It also stipulates that you have to tell whether or not your staff 

can sleep on the premise, which I found interesting. And it then 

speaks to physical plant features of your building, whether or not 

you are sprinkled. If so, to what degree. Do you have smoke detectors? Where are they? Do you have an emergency evacuation plan, 

and what is it? 

So that is primarily for general facilities. And then on top of 

that, we have specialty care units, Alzheimer’s specialty care units, 

and there is a separate disclosure statement for those. And it goes 

more, the very first one, in fact, stipulates you have to discuss your 

philosophy of care and the services, your therapeutic interventions, 

the level of training that your staff have. You know, just several 

different things in addition to the regular disclosure statement. 

Ms. DENTZER. Let us move to Kevin. Sorry. Violating my own 

rule here. I think you heard that. So, Kevin, please take it away. 

Mr. COUGHLIN. All right. Thanks, Susan. 

You know, I think, starting out with the essentials of assisted 

living, in our State, we don’t have the term ‘‘assisted living’’ in any 

of our regulations, but we have three models that sort of fall under 

that umbrella. I am mostly going to talk about the residential care 

apartment complex because that is one of our newest models that 

came more out of some of the new way of thinking of assisted living. 

But I think some of the essentials are many things that Krista 

talked about with self-direction, independence, accessibility, homelike. The provisions of care need to include personal care, supportive care, and nursing care. And there is within the regulations 

the ability to age in place. 

And I think with assisted living, it is important that we don’t 

sort of force all assisted living to have to do certain things. I think 

the beauty of assisted living is communities can sort of define the 

type of care that they can provide and can become experts in that 

area. And then they don’t get themselves into problems with not 

12 

being able to provide some of the provisions that do take place with 

aging. 

So there is that ability to have both aging in place or to have certain things that could happen that could potentially lead to a discharge. And I think that is where that disclosure statement is very 

important, that when that does occur that we do have good disclosure statements. 

Wisconsin does not have a regulation for disclosure statements, 

but it is captured in the admission agreements. A lot of that information does have to be disclosed in those admission agreements. 

And I think one of the things I do want to talk about is sort of 

that quality oversight. And what we have really focused on in Wisconsin is that all agencies that are involved with assisted living 

have a role in quality, and it is not just the regulatory agency. But 

with regulations, we have tried to develop a new model that looks 

at both regulatory oversight, along with providing technical assistance. 

What we have found is some of our surveyors are some of the 

best experts in this field, and they can offer a lot to the assisted 

living communities. So we have integrated technical assistance as 

part of our survey process, and we have also done a ‘‘one size does 

not fit all’’ in this setting. And we have had a less-intensive survey 

process for those communities that really have shown compliance, 

good compliance history with us. We go back on consecutive surveys and they are still in good compliance, they can reach sort of 

a less-restrictive oversight. 

And what that has allowed us to do is really focus on some of 

the communities in our State that aren’t doing as well, and we 

have been able to really shift those resources and also using very 

creative enforcement action sanctions that can help a facility fix 

their systems to sustain compliance or a very progressive enforcement action that could lead to these people not doing this business 

because if they continue to harm our citizens, they shouldn’t be in 

this field. 

And I think sort of with that process, we have also done a lot 

with collaboration, sharing our information with lots of different 

stakeholders. We have a very good relationship with the Medicaid 

program. They get all of our inspection reports. And what we have 

found is that has also built quality, where they are no longer publicly funding individuals in a facility that does not have good compliance history. 

That, as well as our advocacy groups. We have a very strong relationship with our ombudsman program. Wisconsin ombudsmen 

have been in assisted living for a very long time, and working together with the ombudsman program, again, has allowed us to help 

improve the overall quality. The ombudsmen get in and do a lot of 

training, providing technical assistance to the industry. 

And then also collaboration with our assisted living associations 

and the communities, sort of getting this all on the same page. I 

think as we have developed respectful relationships, we have been 

able to tackle some very difficult issues that have come down in 

this field. The whole thing about how much nursing should be in 

assisted living, how can we get better standards of practice implemented. 

13 

And I think the biggest part is really trying to get quality, the 

assisted living communities themselves to do real, internal quality 

assurance, quality improvement within their own organization because that is where it is going to really happen. And if we can, as 

a State regulatory agent, be a change agent in that area, we can 

help do that. 

So that is kind of one of the big areas that I think has helped 

in Wisconsin is that collaboration across all spectrums. And I just 

want to kind of end with a statistic that we have had 31 consecutive years of growth in assisted living, and in the last 8 years, we 

have had a 50 percent increase in the number of beds in assisted 

living. 

And at the same time, we have had a 40 percent decrease in the 

number of the incidents of complaints. And for that to sort of happen, actually, and it happened during a time where we introduced 

the 1–800 number and an online complaint number. So, for that to 

happen, I think it is showing that there is a real positive movement toward improved quality in our State. 

Ms. COLLINS. I am left handed. There we go. 

In Alabama, we have the regulatory agency is our State health 

department. These are their regulations, which they are currently 

in the process of updating. So we are excited about that. Our assisted living association is certainly working with them, along with 

others that are very interested in assisted living. 

We do not have any of our Medicaid dollars paying for our assisted living beds. We have two types of assisted living, if you will. 

One is just a standard assisted living, which can be any array of 

situations, and that is all of these are licensed. But the SCALF assisted living, which is specialty care, is one that has to come 

through and be approved through our Certificate of Need Board to 

get beds in that. Both of those are under the purview of the health 

department. 

The surveys that are conducted through these different assisted 

living groups are done by nurses through the health department. 

However, like Kevin and others have said, we also have in our 

agency the ombudsman program, which is a huge role in overseeing. They are in there at least twice a year, in all of the facilities that we have across the State. 

We have about 10,000 assisted living beds in our State. They are, 

as I said earlier, different types of structures. So there are definite 

rules and regulations about the way the facility has to operate, 

about the staff that operates, the administration that takes place. 

And again, as has been mentioned earlier, we are very much concerned about the individual’s rights and the ability to have a continuum of care in the manner in which they choose. 

So this is going to be something that I think we will probably 

hear today quite a bit from all of the agencies that are represented. 

Ms. DENTZER. Well, all of you have struck—I will get this right 

eventually here. All of you have struck some common themes about 

the independence focus, the quality of life focus that you want to 

preserve intact in assisted living. And what I would like to do is 

move to a discussion of how that squares with whether—— 

14 

Oh, I am sorry. Julie, my apologies. Thank you. I have been 

prompted. I didn’t mean to cut off representation from Oregon. So, 

please. 

Ms. STRAUSS. That is okay. So, Oregon, we are very, very proud 

of the fact we had the first home- and community-based waiver. In 

Oregon, we currently serve 23,000 people in the waiver. Only 4,700 

people in nursing facilities. So we have a very exciting communitybased care system. 

As far as you asked the characteristics of an assisted living facility versus another community-based setting, our assisted living facilities are required to be at least an economy apartment. They 

have to have their own bathroom. They have to have a kitchenette. 

We do have a floor of services that are required to be provided. We 

do not have a ceiling. 

We have a uniform disclosure statement that we use. It is a 

standardized form by the agency, and then we have a specific set 

of criteria that must also be in the resident agreement, which includes the move-out protocols, the services that are available, as 

well as any fees, deposits, and it has to list the resident rights, as 

we have in our rules with regard to the bill of rights for residents. 

That being said, right now in assisted living facilities in Oregon, 

40 percent of the residents are Medicaid eligible. So we feel very 

strongly about the issue of access to independent and high-quality, 

high-choice facilities. 

We do both a policy—in the area that I work, we do both the policy. We do the Medicaid contract. And we do the surveying. And 

so, we are in the facilities every 24 months, and we use a regular 

oversight process, as stipulated. And we work together with the industry and the advocates to come up with the guidelines and the 

principles for the monitoring of that facility. 

Like Wisconsin, we see partnerships in the ombudsman’s office, 

as well as in the Medicaid case managers at the local level. Everyone has a responsibility to have eyes and ears and everything else 

to help make sure that quality is happening. 

In addition to that, I wanted to mention one of the reasons that 

we believe that Oregon is very, very successful with our community-based care is a progressive nurse delegation policy that we 

have that enables our facilities to better serve clients with lay staff 

who have oversight and delegation by a trained RN and the documentation as such. 

Ms. DENTZER. Say a little bit more about what exactly that is 

and what it means. 

Ms. STRAUSS. What nurse delegation is? Nurse delegation is by 

State law, we have stipulated what services that are regularly administered by a registered nurse, can be delegated to a non-RN. So 

the nurse explains the task and then monitors as an individual 

performs the task to ensure that a resident is safe. And then the 

nurse goes in and regularly checks to ensure that the delegation 

is appropriate and occurring and reviewing change of condition. 

We do have other forms of what might be considered assisted living, but in Oregon, we stipulate in our rules what constitutes an 

assisted living facility different than our residential care facilities, 

which are a congregate living, that they exist under the same 

rules. And I think that is it. 

15 

Ms. DENTZER. Okay. Great. Well, thank you, again, all of you. 

As I was saying, there are obviously some points of convergence 

here in terms of the desire to create choice and sense of autonomy, 

et cetera. There are also some differences among the various States 

in terms of who does the regulating, what the degree of regulation 

is, et cetera. 

I want to just move to the question of how this intersects with 

Federal expectations or requirements. Are there any minimum explicit or implicit Federal expectations or requirements for State 

oversight and monitoring of assisted living? Should there be? 

How does this—if we were to think about this going forward, how 

would this be structured, et cetera? And maybe Barbara and perhaps Henry would want to speak to some of that with respect to 

older populations as well as younger disabled populations? 

Ms. EDWARDS. Well, here is where it starts to get even more complicated. We have already heard different approaches, and I don’t 

know that we know that every State even licenses assisted living 

specifically. So lots of difference at the State level. 

And one of the interesting elements now is that Medicaid is a 

fairly important funder of services for individuals in the community, doesn’t have an assisted living service, doesn’t define assisted 

living, doesn’t define what an assisted living facility is, doesn’t define a group home, doesn’t define—that is not the way the Medicaid 

program is structured. 

So from the Medicaid program perspective, what we have are 

services that can be made available to individuals by States 

through the State plan or through waiver programs that offer alternatives to institutions. So we have institutions that are defined, 

and those are the places where Medicaid services can be provided, 

including room and board. And then over the years, Congress has 

made more options for States to offer people with alternatives to 

institutional services for long-term services and supports, but there 

is not a definition of those settings and those issues. 

What the law tends to refer to is home and community based or 

noninstitutional. And within that, then there are a very broad 

array of services that can be offered by States to individuals who 

meet certain need levels that are defined by the State, and those 

services can be provided. 

So trying to think how to be helpful on this, the issue we tend 

to wrestle with in our policy tends to be more about what is home 

and community based? What are the characteristics of a home- and 

community-based housing and residential option versus what is institutional? 

And there is one place in our guidance where we have specifically referenced assisted living services. That is in our 1915(c) 

waiver application and guidance. And in that case, what we are 

really describing there is a bundle of services that could be delivered to individuals who might be residing in a particular type of 

facility. And in the guidance, the facility is referred to as—actually 

isn’t really described. It is more the bundle of services that are 

available to that individual in that setting. 

We ask States that, if the settings are larger facilities, that they 

describe how they are going to assure home and community—that, 

in fact, there are home and community characteristics for that indiVerDate Nov 24 2008 11:13 Sep 14, 2011 Jkt 067530 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 C:\DOCS\67530.TXT SHAUN PsN: DPROCT
16 

vidual’s experience in that residence. So that makes this a difficult, 

to some extent, an issue or makes it flexible because States can define how they regulate their housing. And then the Medicaid services can fit into those settings in a fairly flexible set of ways. 

So we have actually made more comment in guidance with regard to the characteristics of the setting than we have not by 

name, but just the characteristics of what is home and community 

based and what we are looking and what we perhaps would not be 

looking for. So if that is helpful, I can share some of that. But we 

don’t come at it from the same perspective. 

Ms. DENTZER. For all intents and purposes, assisted living is 

home or community based for—— 

Ms. EDWARDS. Services, there are some services in Medicaid that 

are to be delivered to individuals who are living in a home- and 

community-based setting. So I would put it this way. For assisted 

living to qualify as a place in which those services could be reimbursed by Medicaid, that assisted living facility would have to have 

the characteristics of home and community. 

So that is what becomes important is what is the experience of 

care for the individual who is living there? Is it a home- and community-based setting, or is it more of an institutional setting? And 

for us, home and community based means person centered rather 

than provider centered. It means that it is home-like, and we have 

sometimes offered examples of what we think home-like means. 

Access to privacy, a lockable apartment, access to facilities that 

are normally available in a home—a kitchen, bathroom, eating— 

that people have the ability to come and go, that they have the 

ability to participate in community activities in an unscheduled 

way. In other words, that the provider doesn’t decide when individuals will go into the community, but individuals can have some 

choice in that, in those decisions, and that in an assisted living we 

would assume then there might be some assistance with those 

choices, but that individuals have a significant amount of ability to 

direct their own life and their experience of their community integration. 

So we are interested in those characteristics of the home. And on 

the basis of that, Medicaid services to support that individual can 

be made available by the State. 

Ms. DENTZER. Has there ever been an instance where an assisted 

living facility was judged to be institutional, and therefore, services 

to a person in that setting could not be provided, to your knowledge? 

Ms. EDWARDS. I am not sure I can speak to that directly. Again, 

States identify the housing options that are made available to individuals, and we ask that they help us understand how they assure 

home and community nature of those settings. 

There are certainly some cases where we might not think a setting looks like it is home and community based. But we, at this 

point, don’t have regulation that defines what those look like, and 

it certainly isn’t done by the name of the institution or the facility. 

Again, we don’t define what an assisted living facility is, nor a 

group home specifically. So, instead, we are looking at the characteristics. 

17 

We are, and I want to sort of stress that we are in a regulatory 

development process at CMCS with regard to a variety of Affordable Care Act provisions that expand State options with regard to 

home- and community-based services. And so, I can’t comment a lot 

about what we are thinking about in terms of guidance. 

We have issued a new set of proposed regulations around community first choice. That at least begins to lay out some proposed 

regulations that might have some impact, and again, we are in the 

process of inviting comment from all interested parties. And so, 

again, I can’t comment a lot on how we are developing policy. I can 

talk a little bit about the dialogue we have had with stakeholders 

in the past through advance notice of proposed rulemaking that 

was issued in 2009 and some of the comment and dialogue we have 

had around that. 

So this is an area of great interest to us and great interest to 

stakeholders, to States, to individuals, to providers, and we really 

do welcome—we have had a rich dialogue with individuals about 

what it means to be home and community based. What we have 

learned is that there is not consensus about what that means, that 

sometimes preferences vary on the basis of age. 

Sometimes preferences vary even from community to community 

within individuals with disability. We may hear sort of a strong 

view from individuals who represent or are people with cognitive 

or with developmental disabilities. We hear different things from 

people who represent those who are elderly. We hear different 

things from individuals who are younger adults with physical disabilities. 

And the challenge for Medicaid is to develop policy that assures 

access to services across all of those populations in a way that is 

reasonable and we think reflects the intent of the law. 

Ms. DENTZER. Great. Thank you. 

Henry. 

Mr. CLAYPOOL. Well, Barbara has covered quite a bit of ground 

there. So maybe I will pick a few points to underscore how we 

think about assisted living and the tensions that the Medicaid program confronts when it is asked to finance these services. 

I offer a disability perspective. Home- and community-based services arguably came out of the need to have an alternative to an institutional setting for people, and many of them were people with 

disabilities. And perhaps most notable in that group is individuals 

with developmental disabilities and their need to move from large 

institutional settings to home- and community-based settings that 

serve people with developmental and intellectual disabilities. 

And that movement, I think, has shown that the level of care, 

the types of needs that individuals have, and our ability to serve 

them in the community can vary, from individual’s families choices 

and preferences. But we hear from individuals with developmental 

disabilities and their advocates that we should continue this movement toward smaller, more integrated settings to serve individuals 

with developmental and intellectual disabilities. 

The same can be said for individuals with physical disabilities 

that, some unfortunately, may end up in an institutional setting 

like a nursing home when there is a lack of service or an unavailability of housing, which results in their institutionalization. 

18 

And we hear often from the advocates and some of the service 

providers that there is a need to move away from providing nursing 

home services, but that the home- and community-based services 

need to have specific characteristics. There is a strong preference 

for individualized community-based arrangement. 

People with disabilities that are younger or on a different trajectory in their life’s needs, and they do not want to be institutionalized, maximize their independence by living in a community-based 

setting where they will have full access to community supports, et 

cetera. 

And then, on the other end, I see an aging population that is losing some function perhaps and interested in building a support system that will allow them to maintain their independence as long 

as possible and forestall what has been assumed in our society that 

one goes to a nursing home when your needs are such. 

And these two are perhaps not in conflict, but they need to be 

reconciled. And the place that they end up being reconciled oftentimes is in Medicaid policy, and it creates a real challenge for the 

agency to align its policies in such a way that accommodates all the 

interests, preferences, and choices of these individuals. 

It is interesting, though, when I hear the States going around 

and talking about the kind of the values that they hold around 

their assisted living systems that they articulate many of the 

things, obviously, that we hear from home- and community-based 

services advocates. But I would offer up the concept of a personcentered planning process. I don’t know if it exists in many of the 

States already. 

But this concept that Barb has mentioned does allow the individual to articulate their needs and talk about what their expectations are for the future. And it is, I think, a very empowering 

model that really does help move towards things like self-direction 

or greater independence on the part of the individual. 

So there is much more that I think we can touch on, but I will 

let Susan get back to addressing some of the issues at hand. 

Ms. DENTZER. Thank you, Henry, for that very helpful perspective. 

Believe it or not, we have already exhausted our first hour. But 

I don’t want to let this go without asking Barbara Lyons just perhaps to offer some comments from the perspective of the Kaiser 

Commission and your own expert perspective. 

As you look across the States and think about Federal policy, 

Medicaid policy, obviously, a greater shift toward home- and community-based services overall, and particularly in the context of the 

Affordable Care Act, what rises to the surface for you as issues? 

Ms. LYONS. Yes, thanks, Susan. 

Let me just start by saying what I was struck by, as we were 

going around with the States, is again the variation that exists out 

there across the States and within the Medicaid program. There is 

always just a tremendous amount of variation. 

As we have tracked long-term care services and supports, particularly over the past decade, I think it is important to at least 

acknowledge the really significant growth that we have seen in 

home- and community-based services. It has been, you know, pretty 

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19 

growing parts of the Medicaid program if we look over the last decade. 

Whereas, on the institutional side, we have seen virtually no 

growth over the last decade. It has remained very flat. So I think 

that that kind of progress is important and moving in the direction 

that both folks under 65 and over 65 want to go in, in terms of 

where they are served and able to live and function. So that is 

pretty important. 

When we look at the data and break it apart a little bit, we do 

see a difference between the under 65 population and the seniors 

in that, as Henry described, the under 65 population making that 

transition much more readily than what we see among seniors. 

And to some extent, that reflects the supports that are out there 

for the under 65 population, for seniors who are aging, and they 

often don’t have the supports in the community. 

And as we have looked at different home- and community-based 

waivers and programs that are out there, the two things that just 

really stick out for us in terms of enabling people to stay in the 

community are, number one, housing. Just couldn’t be more critical 

for folks. As we looked at Money Follows the Person programs, that 

housing and ability to connect the Medicaid agency with the housing agencies at the local level is just absolutely pivotal. 

And then the second factor that is really critical are the workers. 

And so, I was interested in Julie’s comments about the nurse delegation because having the workers to assist people when they need 

it in the community is, again, just another really, really critical aspect for moving forward. 

The ACA does present opportunities for States to continue to 

move in this direction. But I would be remiss if I didn’t say that 

right now there is this huge budget crisis at the State level, which 

has, I would say, dampened some of the progress that we have seen 

moving forward over the past year, as States have wrestled with 

the economic impact of the recession. 

Still, I think the goal is to move forward and keep moving in the 

direction of making more community-based services available going 

forward. And so, as States and the Federal Government deal with 

this crisis, we would hope not to lose ground in the interim. 

So I will stop there. Thank you. 

Ms. DENTZER. Well, thank you all, and you can begin to see how 

difficult it is to wade deeply into this topic in a short time frame. 

We are going to move to the next area of discussion, though, 

now, which is essentially dealing with the question of the supply 

of assisted living in the sense that do we have any estimate of a 

national demand for affordable assisted living? Is there any Federal program that calculates this, or have we begun to even think 

through what the role of affordable assisted living broadly should 

be in the context of not just the move to home- and communitybased services, but the aging of the baby boom, as has been mentioned. 

What are the primary sources of Federal funding that can be 

used for the development of affordable assisted living? Grants, tax 

credits, et cetera. Does the Federal Government, in fact, have more 

plans to develop more assisted living for residents who are living 

in subsidized housing? 

20 

So those are the kinds of questions we have to verge into here. 

And then, of course, not just dealing with the Federal, how are the 

States approaching the challenge of developing affordable assisted 

living? 

So, with that, Michael Vaughn, why don’t you talk a bit about 

HUD’s role in all of this? 

Mr. VAUGHN. Well, HUD has two main areas where we intersect 

with this sector. The first is in our own inventory of public, Section 

8, Section 202 affordable housing. And in that area, we have been 

working to expand the range of home and community services. We 

have been successful in broadening the options available under the 

Section 202 program. 

And I said I would give some examples. I wanted to give one in 

that aspect. In Columbus, Ohio, we had a 202 project called InCare 

Suites. It was a $3.5 million award of a grant for a 39-unit independent living community. The residents, 69 percent of the residents were Medicaid eligible. And of the 39 households, some were 

active and independent. Ten percent had actually left a nursing 

home, and quite a few were receiving intensive Medicaid homeand community-based services. 

So we are trying to broaden the newer aspects of assisted living, 

as Barbara mentioned and Henry mentioned, to our overall inventory. 

The second main area where we are involved is more in the construction of traditional—and financing of traditional assisted living 

facilities that are affordable. And I think in introducing, you said, 

well, what is the Federal Government doing, and what are the 

States doing? It has all got to be together, it doesn’t happen at all 

is, I think, what we have found. 

We have low income tax credits, obviously, from the Department 

of the Treasury. They are an important aspect of all of these. Home 

grants from HUD that most of these go toward traditional affordable housing, family affordable housing. But also some of them are 

used for elderly, which can have these home- and community-based 

services, or for pure assisted living. 

Our Section 202 program, again, is a program for the elderly. 

Section 811 for people with disabilities as well. Approximately $350 

million annually from HUD. And of course, that program has faced 

budget pressures. These can be combined with other programs from 

the State. 

The office I am in oversees the insurance, mortgage insurance 

under the Section 232 program. We have insured $17.1 billion in 

residential care facilities. Two-thirds of them are nursing homes. 

Approximately $5 billion of that is new facilities. 

We have had a tremendous increase in demand for the program. 

We have gone from about 200 or so applications a year to over 700. 

We have had a lot of trouble keeping up with it, but we have recently made the decision to prioritize projects with tax credits associated. 

I don’t know if a lot of people know this, but HUD has a Section 

542 risk-sharing program that is administered primarily by the 

State housing finance agencies. We partner with them, and we take 

a 50/50 risk. A number of the projects done under that program 

have been—37 of them—for affordable assisted living facilities. 

21 

Public housing authorities in HUD, they are our partners, and 

they are extremely creative in using the different sources—Medicaid waiver, the other home funds, et cetera—for either adapting 

their elderly projects or doing new from scratch assisted living 

projects. And there is even a program under the Federal Home 

Loan Bank Board, which I have seen. I was a HOPE VI grants 

manager, and I would see these lists of the sources. 

And Robert has been a consultant for putting these things together, and you usually have to have four or five before it works. 

But the Medicaid waiver is an important element going forward, as 

can be public housing operating subsidies, as can be Section 8 

funds or the vouchers following the people, as Barbara mentioned. 

So there is a panoply of things that can come from HUD, and 

creative people have put them together with a great deal of success. 

Ms. DENTZER. To your knowledge, does HUD have an estimate 

of national need for affordable assisted living? 

Mr. VAUGHN. Well, I was looking at some of the material from 

other people on this panel, people from AHFA, et cetera, and one 

of the statistics was that 25 percent of the present residents of 

nursing homes could be taken care of in a lower-acuity setting. And 

since there are about 1.5 million residents in skilled nursing facilities now, that would be 375,000 people. Or if you think of a traditional assisted living facility of about 100 units, that would be 

375,000 people. 

That actually ties in a little bit, if you want to extrapolate from 

the other end. I am one of these people that, if you work something 

statistically from two different directions and you come up with the 

same answer, it might be right. 

Illinois has a program, a Medicaid waiver program where they 

have taken a lot of people out of nursing homes, and they have financed a total of 124 facilities. Well, if Illinois is 3 percent of the 

national population, which it is about, that would get you about to 

3,700 facilities nationwide. 

And there was one other estimate that we noted, the Center for 

Excellence in Assisted Living projected 67,000 units needed over 

the next 15 years. So that would be about double what we are talking about as immediate need. So those numbers aren’t—you know, 

they kind of jive in a way. 

So that is not an official estimate. That is looking at some statistics. 

Ms. DENTZER. Well, from our industry members present, what is 

your sense about, first of all, that question in particular, your sense 

of estimated national need for affordable assisted living? And then 

what about the availability of funding and financing through various sources to actually build those facilities? 

I know the current environment is, we hope, an anomalous environment. But it better be, going forward, right, if we are going to 

meet this national demand. 

Brenda, do you have thoughts? 

Ms. BACON. Well, there are approximately a million people in assisted living today, and about 120,000 of those are covered under 

the Medicaid waiver. Proudly in our Brandywine communities, we 

have 305 people that live there under the Medicaid waiver, and I 

22 

think that the numbers that Michael reviewed are really important 

numbers for us. 

Certainly, for us as an economy, the American taxpayer to think 

about because nursing home care, as we all know, is far more expensive and a far less advantageous environment for the kind of 

individuality and care that we are talking about. And I was interested to hear Barbara say that preferences vary. 

And in a nursing home, you don’t have the ability to have your 

preferences vary. It is very expensive institutionalized care. But a 

lot of people need to be there, whether they need to be there or not 

for their needs, but because of the funding source. That is the only 

way they can access Medicaid if they can’t afford to be a private 

payer. 

So we believe that were there better access to community-based 

funding and other sorts of funding to help people afford assisted 

living, it would not only save the Medicaid program a lot of money 

and, therefore, the taxpayers a lot of money, but provide a better 

way of life for individual choices and people making decisions about 

how they want to spend their life. 

Ms. DENTZER. So, in your view, what does that require then? 

More Federal investment in these affordable housing options or 

what precisely? 

Ms. BACON. It does require more investment, something that I 

know we don’t have a lot of these days. Certainly whether you are 

speaking of the elderly or the developmentally disabled communities, the access to that kind of care in the long run, as we all 

know, saves us money. 

So the more we can invest in that, the better off we are going 

to be in the long run. I think the short run is our challenge, of how 

do you get those dollars where they need to be to help us out as 

we go forward? Particularly with the growing wave of elderly and 

particularly with the growing wave of Alzheimer’s development, 

which is just an offshoot of the population aging. 

If we can keep people with Alzheimer’s in communities where 

they are receiving a lot of care and as well as care for their spirit 

and keeping them as active as they can be, rather than putting 

them in an institution, their lives, their families’ lives are so much 

better, and we save a lot of money. 

So the assisted living community would very much like to see access expanded for assisted living for all of our elderly and for disabled populations in the communities that can best meet their 

needs. We are not suggesting everybody can be just thrown into 

one community, and it all works. It really needs to be tailored to 

meet the needs of the population it is trying to serve. 

Ms. DENTZER. How do you see this, Howie Groff? 

Mr. GROFF. I want to preface this just so everybody understands. 

We operate in four States. We operate nursing homes and assisted 

livings. But the assisted living residences we operate go in communities from 500 to 500,000, and there are varying differences. 

And as Michael talked about, there are a number of Federal programs that are available to us, but it is very difficult. Let me just 

start with HUD, wonderful program, under Section 232, but it is 

arguably an 18-month process. I understand they have been inundated because of the economy. 

23 

Fannie Mae and Freddie Mac are Federal lending institutions 

that we could utilize, but they don’t finance new construction. So 

that is not even available to us. A lot of communities can use 

USDA financing, but they require a guarantee of some sort. And 

the question is with the state of the municipalities today, do they 

have the wherewithal to do that? 

We could look at municipal bonds to develop affordable assisted 

living. Right now, as we see in the State of Illinois, they have been 

trying to finance their way out of their debt. It is kind of leading 

the people to say, wait a minute, this whole rating system needs 

to be put aside. 

Tax increment financing is available. There are communities out 

there that are very cooperative with that, but there are also communities that refuse to do that. 

Providers want to go to state housing authorities. Coming from 

Minnesota, we have the Minnesota Housing Finance Agency. They 

could be an FHA lending enabler, correct? They have chosen not 

to because they see that in conflict with other low-income housing. 

So they have never done elderly buildings. That is a choice they 

have made. 

The last thing I would suggest is as we look at affordable assisted living, we also need to look at going back to what Barbara 

said. Right now, Medicaid pays for services only. So there is this 

whole housing component. ‘‘Where am I going to live? How am I 

going to get fed? Who is going to keep the lights on for me?’’ 

And I think we need to address those needs in more creative 

ways. So the question is, could the elderly get access to housing 

vouchers that are under the HUD program right now that we are 

using for low income? What if we got real creative and looked at 

food stamps as a bucket of money to tap for the nourishment part 

of that component? 

The point being, where we operate nursing homes, we have an 

all-inclusive rate which includes the housing and food component. 

We don’t see that right now today in assisted living. 

So I think there are some programs that exist out there, but 

right now, we are fragmented and disjointed. I think we are, quite 

honestly, more focused on trying to define assisted living rather 

than looking at, hey, we have got a whole bunch of these programs 

out here that are working. What can we do to take the best of the 

best and replicate those processes? 

I think that, Michael, you were getting at that same point. There 

are some very creative things going on, and let us see what we can 

do to replicate those and also tap into that money that already exists. In this economy, we can’t ask for more. 

Ms. DENTZER. What about those of you, again coming back to 

those of you from State governments, do you see these issues of the 

existence of funding options, but so many constraints against using 

them that it is really not meeting the need? Christy. 

Ms. CHRISTY ALLEN. I am constantly hearing from people who 

want more options for needs, and Tennessee has been able to do 

a lot in that regard through the home- and community-based waiver program. And we know that doesn’t pay for room and board, and 

that remains an issue for families around the State. 

24 

We also—on the issue of availability, we are also a certificate of 

need State. So availability is determined largely by the group of 

people who sit on that particular board. So there are all manner 

of concerns and interests that go into talking about availability. 

Ms. DENTZER. To clarify, so assisted living is subject to the certificate of need requirement? 

Ms. CHRISTY ALLEN. Yes, every single healthcare facility type is. 

It is through the health services and development agency, which is 

maintained in a separate agency. So I do think that Tennessee has 

done a very, very good job of rolling out its CHOICES program 

statewide and getting as many people as possible to take advantage 

of it. But there is still an element of it that is private pay. And in 

a State where there are a lot of people with lower income and lesser means, that is a difficult challenge. 

Ms. WILL. Susan, if I may? 

Ms. DENTZER. Patricia. 

Ms. WILL. We have talked a lot about and ought to talk a lot 

about gaining access for people who can’t afford the product type. 

I think what many people don’t realize or remember is that the average means of the people that we serve in market rate assisted 

living is decidedly middle class. 

We have seen a number of studies that have come out, one very 

recently by Boston College, and the income, the mean income of a 

person living in assisted living is under $25,000 a year. We are fortunate in our industry in that our seniors of this generation were 

savers. We worry a lot about the explosion in the baby boom population and a different set of lifestyle habits. 

And our seniors in the main were homeowners, very large penetration of home ownership. And even those with modest homes 

have been willing to sell their homes and use their equity, pay 

down effectively their equity to live in assisted living. 

I think it is important to realize that because we recognize and 

all need to work together to find solutions for people who aren’t in 

that position. But in the main, the industry is serving today people 

of relatively modest means. 

Ms. DENTZER. Modest means at least in terms of income—— 

Ms. WILL. In terms of incomes and even assets. If you look at 

people who have sold homes, we are not talking about—we are 

talking about on average enough for someone to stay the average 

length of stay, which is about 2 years, 2 to 3 years in assisted living. 

So I think that it is just important, yes, we need to explore all 

the means of access that we could find with all of the creativity of 

crossing programs, as Illinois has done. But we have a customer 

base today who, by choice, is using the resources that it has to be 

in our communities, and they are not necessarily affluent. 

Ms. DENTZER. Just to recap, you said the mean income is under 

$20,000 a year? 

Ms. WILL. Twenty-five. 

Ms. DENTZER. Twenty-five. You are characterizing that as middle 

class. That doesn’t sound so middle class in this day and age. 

Ms. WILL. For a senior, it would be. 

Ms. DENTZER. Okay. 

25 

Mr. POLIVKA. It is about the median for all people over 65, 

$24,000. But they are benefited from their housing equity. 

Ms. WILL. Right. And that is a generation where we have very 

high penetration of home ownership and very high savings rates. 

Ms. DENTZER. Well, I believe if Senator Corker were here, he 

would remind us that this is an environment of fiscal straits and 

not an environment in which we are likely to see a lot of new Federal funding come in. 

So just to talk about ways where it might be possible to free up 

existing pools of Federal funding or work through existing programs and make those more accessible, less constrained, I would 

love to hear any perspectives from either our provider side or the 

State side about how it might be possible to free up a little bit 

more of this, to support the creation of more assisted living or affordable housing. 

Larry. 

Mr. POLIVKA. I have felt for 20 years that Medicaid was a tremendous potential resource for funding people living in assisted living. And I am a little surprised to hear that the number at this 

point is 125,000. I thought it would have been much higher than 

that by now. 

I know that, in the case of Florida, it is somewhere in excess of 

25,000 at this point. You have got an assisted living waiver with 

5,500 people in it. You have got a diversion managed care program 

with about 10,000 in assisted living. You have got an assistive care 

services program with about 13,000 people in it that is funded 

through Medicaid with a match arrangement. 

So it is over 25,000 people out of the 82,000 people in assisted 

living in Florida are Medicaid supported. I mean, that is really an 

explosion over about a 5- or 6-year period. And I know that, in the 

case at least, I think, of Oregon and Washington, that has been 

true for years. 

So I am a little bit concerned about this apparent real serious 

unevenness in the use of the Medicaid waiver and other options 

like assistive services to maximize that resource in assisted living. 

Ms. DENTZER. Do we even know how authoritative those numbers are, the 125,000? 

Ms. BACON. I believe that the 120,000 are the people under the 

1915(c) waiver. So those are the waivered slots for assisted living 

in each State, and there are 41 States that have that waiver program. I am not referring to those other programs that you might 

be talking about. 

Mr. POLIVKA. Right. 

Mr. JENKENS. So, Susan, I guess maybe partially in answer to 

Larry’s comment. In working to help States create affordable assisted living programs for many years under the Coming Home program, there is a little bit of a cycle that we get into. 

So States, like Arkansas, create a terrific assisted living Medicaid waiver benefit. They ask providers then to develop programs 

to participate in that. Providers, very few providers actually 

jumped in in Arkansas and other States because of a number of 

structural impediments to their doing that, including what Michael 

cited as the seven to eight layers of financing you might have to 

26 

put together to create an affordable unit for people with an SSI 

level of income. 

So you don’t get the full utilization of the slots that are available, 

which then limits the uptake that Larry mentioned. And so, I think 

it really gets back to what Howie said. We have to make it simpler 

or at least as simple to develop affordable assisted living as it is 

to provide nursing home services, and part of that is the payment 

source. It is complex. 

Lenders are afraid of the risks that are involved in it. Providers 

are afraid of the risks that are involved in potentially capitated 

Medicaid waiver programs or capped Medicaid waiver programs. 

So, in my experience, there are resources out there. There are 

more resources that could be directed or redirected from institutional sources, but we have to make it simpler if we want normal 

human beings to develop affordable assisted living. 

Ms. DENTZER. Larry, to come back to what you were saying, you 

said you had long thought that Medicaid could take on a greater 

role. 

Mr. POLIVKA. Oh, yes. 

Ms. DENTZER. Did you mean in paying for the housing component? 

Mr. POLIVKA. Yes. We created an extended congregate license in 

Florida in 1990 for the purpose of opening up assisted living to 

more impaired people, both coming in and remaining and aging in 

place. The whole notion was that the waiver would come right behind it to fund it. 

And we were really drawing on the Oregon experience that had 

already been in place for 4 or 5 years funding assisted living and 

adult foster homes very extensively in that State. That was really 

the launching pad, as I understand it, for the transformation of the 

Oregon system in the mid 1980s was assisted living and foster 

care, Medicaid funded. 

And my question in response to Robert is with this variance 

across the States. I am not so sure it is a matter of all these layers 

and complexity. I think it is a matter of State policy, in large measure. I think the Feds at CMS have been open to this for a long 

time, in part because of the kind of flexibility you describe, Barbara. I think it is a problem of State initiative, fundamentally. 

Mr. REED. Yes, I agree with that. It is an issue of State policy 

and how they manage their system, how people access the system. 

One of the things that I think we haven’t talked about here yet 

is that most people who enter assisted living enter it in a traumatic 

event. You have to have a traumatic event to leave home. And 

while assisted living may be more attractive in many cases than 

nursing homes, it is still not home. 

So something traumatic happens, and people have to access the 

long-term care system, and it is very complex in many States. And 

I also agree that Medicaid is the funder of many assisted living 

slots in Washington and Oregon and other States, but the Medicaid 

money does not build the buildings. They buy these slots from private providers, and I think it is important in Washington and Oregon to say that they have negotiated deals with the private providers, saying you can take some Medicaid clients, but not all Medicaid clients. 

27 

If you are a nursing home, you would take one Medicaid resident, you would take them all. In assisted living, you can take two 

or three or four. And what happens a lot with private providers is 

they have people who spend down. And instead of kicking that person out, they allow them to become Medicaid eligible and take a 

lower Medicaid rate for that person to stay there. 

I want to just mention one other thing. I think we need to look 

at assisted living as not a continuum. It is part of the array of 

servcies. Continuum implies that you go there and move on. The 

assisted living concept is aging in place, and that works better in 

theory sometimes than it does in reality. But it is important to 

view assisted living as one of the array of services and that one 

size does not fit all. 

Some people choose to live in that setting. Some people prefer to 

stay home. Some people even may prefer to go to a nursing home. 

But that should be a personal choice. And so, the importance of a 

good long-term care system is to provide options that are viable to 

consumers that they can choose where they want to be and where 

they feel most comfortable to meet their quality of life needs. 

Mr. JENKENS. So I think there are really terrific examples across 

the States of individual programs that have addressed many of the 

concerns that we are listing. I think the challenge is to put them 

together consistently enough through reimbursement and financing 

programs to allow the development to take place. 

So, just as an example, I think a real challenge that willing providers face when they want to develop an affordable assisted living 

program is that people have to be nursing home eligible. They go 

through a crisis, as Charley said, and they need a placement within 2 days. They have to be out of the hospital. 

In nursing homes, there is a retroactive payment provision for 

people who are accepted in and then qualify for Medicaid. In most 

assisted living programs in States, there is not a retroactive provision. So people, by necessity, go to a nursing home. That is where 

the funding source is. And then they don’t come out. 

Michael talked about the 1.5 million people living in nursing 

homes. About 1 million of those are Medicaid funded. Less than 5 

percent of Americans say they want to live in a nursing home. So 

I think you can kind of gauge the size of demand by those numbers 

and then understand, well, how do we get actually the supply to 

meet the demand? 

And we know the demand is out there. So there is an issue with 

getting the supply on the table, and I think we can solve it. There 

are good examples. We just have to put our minds to it. 

Ms. DENTZER. Michael. 

Mr. VAUGHN. Yes, I said I wanted to give some examples, and 

I think an example here is helpful. It is an example both of the 

complexity and of the chances we have, the opportunities we have. 

It is when HUD recently did mortgage insurance for a 120-unit facility. Sixty percent of the units will be leased to Medicaid-eligible 

residents at Medicaid reimbursement rates, with the remaining 40 

percent leased to private pay. 

The financing of it was—had tax credits so that that same group 

basically had an income restriction as well. It pretty much went 

hand-in-hand. The funding for the project was a $12 million HUD 

28 

mortgage, Section 232; $11.2 million in low-income housing tax 

credit proceeds; $1.24 million from the Tax Credit Assistance Program under the American Recovery and Reinvestment Act; and 

$195,000 in Illinois tax credit funds. And again, based on the Medicaid waiver program. 

And they have done a fair number of these around the country, 

but not in relation to the demand that is out there. 

Mr. POLIVKA. I think that is proof the stimulus worked. 

[Laughter.] 

Mr. VAUGHN. It worked in this one. 

Ms. DENTZER. Eric, let us take a comment from Eric, and then 

I think Barbara, as I understand, has—oh, this Barbara has new 

data. Okay. It is not clear which Barbara has the data, but we will 

go to Barbara Edwards. 

Go ahead, Eric. 

Mr. CARLSON. Thank you. First, I want to supplement my introduction. I am also here representing the Assisted Living Consumer 

Alliance, which is a national group of nonprofit organizations and 

individuals working together to improve standards in assisted living. 

And I want to add something to this conversation, to say that it 

is important that we do identify what is assisted living. We are 

talking about what we need to do to increase access to assisted living. It is a good thing. 

But I think it has come out from some of the discussions we have 

had over the last hour and a half, in practice, assisted living can 

be very different. It would be terrific if we were able to arrange for 

increased funding for a single occupancy model that provided an 

adequate level of services to folks. That would be fantastic. But if, 

instead, we are talking about increasing access to a model that is 

providing shared occupancy with staffing that may or may not be 

adequate, that is not such a good thing. 

I would like to emphasize it is about more than just the money 

when we are talking about the programs so that we do have some 

understanding what exactly we are funding here. And when we 

have talked about the State models, I think we have understood 

that there are some differences. 

From a consumer perspective, we are much more supportive of 

a model that has a little more structure and, say, the Arkansas and 

Alabamas that have a couple of different levels and that have 

standards that are more commensurate with the care needs of the 

individuals, as opposed to a one-size-fits-all licensing standard that 

may just require that there at least be someone awake and on duty 

and then, after that, leaves a lot of discretion up to the individual 

facility. 

Because, in practice, you get bad results sometimes, and the 

flexibility that you have in the regulations allows, in the best-case 

scenario, a provider to do a tremendous job. But that is where you 

have the biggest problems, too, when you have people that aren’t 

up to the challenge and, particularly with Medicaid funding, aren’t 

up to the challenge of providing care for individuals who, by definition, have conditions that would warrant admission into a nursing 

facility. 

29 

So particularly in an environment where we want maybe not just 

to spend so much money, but to make sure that the money that we 

are spending is spent intelligently and well, it is important that we 

look at this. I am most familiar with Medicaid, but I think in all 

these programs when we are putting together these funding 

sources, we should make sure that the end product is something 

that is productive for folks. 

And I do think, particularly when we are talking about Medicaid 

and dealing with folks who have a significant level of care, that we 

need to have some assurance that there are some standards there 

and that the care is appropriate for people’s needs. 

Ms. DENTZER. Reactions to that from—Larry. 

Mr. POLIVKA. Eric, I am sensitive to your concerns, but—and this 

has been part of this debate for a long time, in terms of how we 

regulate and how specific do the standards become and how far do 

we get beyond what CMS is working with now in terms of HCBS 

definitions. Is there any evidence that this flexibility and wide 

range of approaches and definitions has really resulted in bad outcomes? 

I mean, I have been looking at this for a long time, and I would 

certainly be interested in knowing if we have got substantial evidence. But I, frankly, have not yet seen it, and I have been looking 

for a long time. 

Mr. CARLSON. My understanding is that the Inspector General 

for HHS is taking a look at this this year, to take a harder look 

at the Medicaid fund and home- and community-based services and 

assisted living and adult day health care. I can tell you from my 

own experience in California and in talking to folks from other 

States that we do see programs. I am in a State that inspects assisted living facilities once every 5 years, and I am well familiar 

personally with facilities that don’t do a good job and with licensing 

agencies that aren’t in a position to enforce standards upon those 

providers. 

And I think it is a question of maybe it is a burden of proof question. I think the jury is out on the question in both directions, 

whether the care is adequate or whether the care is inadequate. 

And so, I do think that there is an issue. I think the providers 

would recognize that there are good facilities and bad facilities in 

their particular States. I think consumers recognize that there are 

good and bad facilities. 

And I can look at a licensure system and see that, if it provides 

no standards, that is a real issue, particularly in an environment 

where many of the providers do not come from a healthcare background. And that is this issue here about the acuity of the residents increasing, which is a good thing that you have a system 

which doesn’t force folks to go into nursing facilities and which allows people with greater care needs to stay, but you don’t see the 

standards that match that. 

And I defer to some of the State regulators, but I think that the 

Alabamas and the Arkansas, not to pick on them or to praise them, 

however that is perceived, they have reasons to try to develop particular levels of care with standards that match the needs of the 

people. 

30 

Mr. JENKENS. Can I expand a little bit on Eric’s comment about 

Arkansas? Because I do think that is a terrific example of a regulatory system, especially one designed to help people at a nursing 

home level of care have additional options. And I want to compliment Charley for his pointing out that assisted living shouldn’t 

be a stop on a continuum, that it is not—people are not widgets 

to be moved along a continuum of care. 

They create homes, and they have harder and harder times creating homes as they are moved into higher levels of care. So assisted living should be an option within a set of community-based 

and facility-based long-term care options. 

To do that, you have to have a regulatory structure like Arkansas’s that really recognizes the significant level of acuity and services that will be required to provide, as Eric said, good quality care. 

And I would like to compliment Arkansas for doing that. 

And I think we need to think about that, especially within the 

Medicaid spectrum. How do we create an option that is good quality, truly operationalizes person-directed care, and then create a 

system that allows that to be developed in large numbers so that 

it can be a meaningful choice in communities? 

Ms. DENTZER. Barbara. 

Ms. EDWARDS. Thank you. 

I just wanted to offer a little bit of perspective on the issue of 

Medicaid and where Medicaid is serving. We serve almost a million 

people in HCBS 1915(c) waivers. So we don’t have information at 

the Federal level as to what housing those individuals are in by 

type, but it has been a fairly robust program of providing those 

kinds of services to individuals in communities. 

And we like to see programs that offer individuals choice of 

where they live so that they may choose to stay in their own home, 

and services come in. They may choose to live with a friend, and 

services can support them. They may choose an assisted living setting, and services can be funded there as well. And there may be 

an adult group home. There may be a foster care arrangement. 

States make those decisions as to what options are going to be 

available. But I think from our perspective, we like to see that individuals have a choice. The fact that people have choice, though, is 

sometimes why it is difficult for Medicaid to be committed to the 

development of a new, say, an assisted living facility is that, again, 

the individual has the choice of where they want to live. At least 

that would be the ideal rather than the only place you can get that 

service is if you move into this building. 

That is when I think we hear from advocates and others some 

concern that that may not be the way they would like to see the 

systems develop. They would like choices. And if the only choice is 

I must leave my home and move into a place where we are then 

funding, that becomes just the same problems folks have with 

nursing homes. If I have to move there because it is the only place 

that there is funding available, that can be the same challenge 

folks have if the only place they can get support is in an assisted 

living facility or a group home rather than also having the choice 

of staying in their own home. 

So one of the challenges I think States have and one of the challenges of Federal policy is how to assure that people continue to 

31 

have reasonable choice while still helping to develop sufficient capacity where investments may be needed to develop that capacity. 

Ms. DENTZER. Charley. 

Mr. REED. Yes, I want to support that and support what Eric 

was saying before. I used to regulate the long-term care system in 

the State of Washington. And we were involved in developing assisted living early on. We regulated it. 

I want to talk now from a consumer standpoint about regulation. 

Regulation is very important to consumers. I have already told you 

that people enter the system at the time of a traumatic event. We 

have to have regulation over the admission policies to assisted living, so it is clear what it is you are getting for what it is you are 

buying and about what happens if you get to another level of care 

and you are getting discharged. It has to be very clear from the facility. That needs to be regulated by somebody to be sure that they 

are not only clear, but they are implemented. 

And then it has to be clear that your basic dignity is protected 

while you are in assisted living. I think that assisted living is a 

part of home and community services because of the privacy involved there. In general, you have got a key to the door. You have 

a private bathroom. You have your own cooking facility, and you 

get to decide when you want to have breakfast, what you want to 

have for breakfast. If you live in a nursing home, somebody decides 

that for you. 

So I think assisted living meets the test in my mind of a community service. But it is important that there is good regulation and 

just as important that there is enforcement. There is some talk 

today about a plan of correction. That is a nice idea as long as they 

correct the problem. 

I think the regulators have to be sure that they enforce what 

they find out. It doesn’t do a lot of good just to find there is something wrong. Somebody needs to do something about that. And I 

assume that all the providers are well motivated, but sometimes 

they need to be reminded. There has to be a consequence for doing 

something wrong. 

And as a consumer, I want to see the consequences applied. If 

I develop some horrible situation because the facility has not met 

my individual needs that they have contractually said they are 

going to do, I want a consequence. And so, regulators have to be 

there to provide that consequence. 

And I agree that that is not very well done across the country, 

but it should be. And I think that regulation and enforcement is 

critical for States in all these settings, whether they are residential 

or assisted living or other community settings. It is important to 

the consumers. 

Ms. DENTZER. We are going to have more discussion on regulation, per se, in the last bucket of this conversation. 

Howie. 

Mr. GROFF. I just want to make one comment. As we talk about 

it, and Charley just described your vision of assisted living, we 

need to remember that we do have many units where they are secured, where we take care of people with memory impairment. 

And in those units, we oftentimes don’t design full kitchens out 

of concern for the safety of the residents. So as we define homeVerDate Nov 24 2008 11:13 Sep 14, 2011 Jkt 067530 PO 00000 Frm 00035 Fmt 6633 Sfmt 6633 C:\DOCS\67530.TXT SHAUN PsN: DPROCT
32 

and community-based services, and as Brenda mentioned, we have 

over 120,000—I have got a number a little higher, but we will say 

it is north of 120,000—that are already being served in what we 

call assisted living. 

Eric, you are right. We don’t have one definition. I am not sure 

we will ever get there, quite honestly. But set that aside, we are 

already taking care of these folks with Medicaid services. And if we 

aren’t careful with our definition, we might have to find new homes 

for these people not because it was done intentionally, but it could 

be an unintended consequence. 

So I hope we work at that, Barbara, and look very hard at where 

are these folks being cared for today, and are they happy in those 

settings? 

Ms. DENTZER. Robert. 

Mr. JENKENS. Susan, one last comment from my side. Much of 

what we hear being discussed at the table, the need for simpler 

payment, the need for a definition, the need for good strong regulations, those are actually benefits from a lender’s perspective. Lenders like something they can understand and analyze. 

And it is very hard for them in the current setting when there 

is no certainty, there is no certainty about either revenue or, in 

some cases, cost to really make an assessment, especially one that 

will last the 15, 20, or 30, or 40 years that they are committing 

their funds to, especially when Medicaid waivers are renewed on, 

I guess, a 5- and a 3-year basis. So aligning those two pieces will 

be critical. But what we are talking about here won’t hurt investment, may actually help. 

Ms. DENTZER. Well, what would be the appropriate mechanism 

for alignment then? Is it regulations at the Federal level, or how 

does all of this come about? 

Mr. POLIVKA. What are you aligning? 

Mr. JENKENS. Payment sources, requirements, and lender and investor needs. So I think there is a terrific start to this, and I am 

not sure exactly where it is. Barbara, I don’t know if you know, or 

perhaps Michael. But there has long been a hope for a very strong 

HUD and CMS workgroup around affordable assisted living and 

creating better alignment there. 

I think that is a start. Then having some capacity to modify or 

realign programs or at least elements of the programs that I think 

we have, those of us working in this industry have long identified. 

The Center for Excellence on Assisted Living put together a white 

paper on affordable assisted living I think 3 years ago. It is a terrific paper. It really points out all of the different pieces that we 

are talking about. 

And I think if we could get a workgroup together to actually look 

at those, some of it we may be able to solve quite easily within current programs and program rules. Some of it may be legislative. 

Some of it may be a new program. 

Ms. DENTZER. What is the status of this rumored workgroup? 

Mr. CLAYPOOL. HUD and HHS do have a working group that is 

focused primarily on the transition from institutional settings into 

the community. We haven’t addressed assisted living as an issue. 

However, our Assistant Secretary for Planning and Evaluation— 

you may be familiar with the work that they have done—has comVerDate Nov 24 2008 11:13 Sep 14, 2011 Jkt 067530 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 C:\DOCS\67530.TXT SHAUN PsN: DPROCT
33 

missioned a couple of recent papers. And I am sorry, I don’t have 

them here to cite from them. But I think that is a clear indication 

that the department is looking at the role assisted living plays in 

Medicaid long-term services and support. 

Let me give you a broader perspective on where the HUD/HHS 

collaboration is. It came out of President Obama’s year of community living. At the center of the initiative were 5,300 housing 

vouchers that HUD made available for disabled families, I believe 

is the term that HUD uses. 

Of this 5,300 vouchers, 1,000 of those vouchers were set aside to 

coordinate with the CMS program Money Follows the Person, or a 

very similar State effort that was designed to provide the services 

that were needed by the individual when they moved into the community from an institution with the HUD voucher. 

HUD has made the award of these vouchers. And CMS now is 

in the process of looking at to what extent was the Money Follows 

the Person program really instrumental in influencing the take-up 

of these vouchers? 

There are a number of other issues that we are dealing with in 

this working group, and I could quickly give an overview on some 

of them. We are dealing with issues around civil rights. That is 

something that I think we should be mindful of when we talk about 

assisted living, particularly when the resources that Eric mentioned aren’t in place. 

If you develop a very congregated setting where people are going 

to be served and they don’t have enough service, the Department 

of Justice may, indeed, come in and find that these individuals are 

not living in the most integrated setting appropriate to their need. 

We have seen that happen on the mental health services—there 

are Medicaid funds involved. But we are really talking about large 

congregate settings where services are provided to individuals 

without regard to their interest in living in scattered sties. 

So I know that the industry around the table aspires to much 

better, but it is something that we have to be mindful of. And this 

working group is tackling some of those issues. 

Our others are really focused on building partnership between 

the HUD programs, particularly the public housing authorities, 

and the Medicaid program and entities that are funded through the 

Medicaid program. There are a couple layers of complexity on the 

HUD side that I may get wrong. But the State housing finance entity has the ability to work with the Medicaid agency right now. 

And under the 811 program, it is supportive services for individuals with disabilities. Congress recently passed a law that now 

changes that program and really puts front and center this partnership between Medicaid and the housing State financing entity 

as the key objective. 

There are a number of other ways that they want to bring financing arrangements to the table, which HUD can hopefully underscore. But the point being, when you really have a program like 

811 moving away from just funding providers that are going to create living arrangements for people that rely on Medicaid toward a 

more strategic approach that is looking at how we can leverage the 

limited resources that HUD is making available through a program 

like 811 and using things like tax credits to make that possible. We 

34 

are beginning to, on the HHS side, really understand what it takes 

to build a strong partnership with the State housing entities, be 

they public housing authorities or at the financing level. 

This will take a while to mature. We tried to do this in the late 

1990s, and we didn’t get too far in our partnership. But Secretary 

Sebelius and Secretary Donovan remain very committed to seeing 

the partnership blossom. And perhaps the information that is gathered here today will be forwarded to us so we can examine the assisted living issue through our collaboration. 

Mr. VAUGHN. To add on a little bit to what Henry said, we are 

committed to that partnership, and our agencies are pursuing it. 

But we have other partners who need to be at the table, and I will 

say it before Barbara does. The CMS works through the States. So, 

in order for these things to work effectively, HUD is in many ways 

able to provide the funding for the housing itself. But the services 

have to come from HHS, and HHS doesn’t administer directly, as 

HUD does, but it goes through the States. So the States have to 

be at the table to discuss the waiver programs and how they work. 

Also, as you mentioned, the State housing finance agencies are 

the dispensers of the tax credit. So I think they have to be at the 

table, too, and our private sector partners, as well as our public 

housing authority partners. I think they need to be part of the discussion, as well as other people represented here at the table. So 

it shouldn’t be a small group. It should be a larger one. 

Ms. DENTZER. It is, believe it or not, already almost 3:00 p.m. It 

says it is on. There we go. 

As I say, it is approaching 3:00 p.m. I propose that we take a 5- 

minute break now, stretch break, et cetera. Reconvene here in 

about 5 minutes, and then we will move on to our last set of discussions around regulatory issues and disclosure and so forth. 

So see you back here in 5 minutes. 

[Recess.] 

Ms. DENTZER. If you all would go ahead and take your seats, we 

will get started in just a moment. 

[Pause.] 

Folks, if you would please go ahead and sit down, we will get 

started here momentarily. 

Anne Montgomery just asked me to mention to all of you that the 

Aging Committee is going to be compiling all of the questions and 

the responses that all of you sent in to the questions that the committee asked and will be sending that out to everybody. It will take 

about 3 weeks for you to get that back, but you will have that. 

And toward the end of our session today, let us try to devote perhaps the last 10 minutes or so to seeing if we can’t surface a few 

points of consensus that came out of today’s discussion as to how 

we keep the conversation moving forward on some of the issues 

that we have talked about. 

We will move now to access and discharge issues that, again, impinge on many of the topics that we have been speaking about so 

far today. But, in general, what we want to discuss are issues along 

the following lines. 

Do States generally require Medicaid-participating assisted living 

facilities to disclose what their policies are with regard to retaining 

residents who spend down their private funds—we discussed this 

35 

earlier—and become eligible for Medicaid? How does this work? Do 

States generally allow facilities to discharge individuals who start 

out as private pay and then spend down to Medicaid eligibility over 

time? 

When the facility is in a position to replace a Medicaid beneficiary with a resident who can afford to pay a higher rate, does 

the facility, in fact, have that latitude? So that is one of the questions we want to explore. 

Again, do all, many, some, no States have processes in place that 

permit Medicaid beneficiaries to appeal any discharge decisions by 

assisted living facilities? What is the legal position of facilities licensed to offer assisted living services with regard to discharging 

residents whose needs exceed State-licensed level of care requirements? 

How does the facility have to comply with other statutes, antidiscrimination, Americans with Disabilities Act, Fair Housing Act, 

and so on in this regard? Is there merit at all in requiring assisted 

living facilities that ask a resident to leave because he or she develops the need for services that exceed that facility’s care standards 

to help with the transfer of a resident to another setting in which 

higher-level services could be provided? 

Or alternatively, could assisted living facilities, should they be 

asked to assist residents if they wish to age in place and bring in 

additional services? 

And then, finally, are negotiated risk agreements, as are used in 

some States, a mechanism whereby living facilities and residents 

can attempt to negotiate additional services for residents whose 

care needs are found to exceed State licensing levels of care? 

So this is kind of the body of the questioning that we would like 

to explore now. And I thought we would start off again with our 

providers on those perspectives to give a sense not only how they 

see things operating in their own State, what the legal environment is in their own State, but what ought to be the case. 

So, Brenda Bacon, if we could begin with you? 

Ms. BACON. Susan, I could talk about this all afternoon. So I am 

going to warn you. Just to hit on a couple of the subjects, I think 

that disclosure and commitment to that disclosure are crucial in 

every State for every provider. 

I think that consumers have a right to know what your policy is, 

particularly since there is limited access to Medicaid waiver dollars. And you need to abide by that policy always. I think the State 

of New Jersey has taken steps, as other States have, but particularly in New Jersey, they require that 10 percent of the assisted 

living population have access to Medicare waivers. And I think that 

the communities in New Jersey proudly participate and actively 

participate in the Medicaid waiver program. 

I think each State has developed its own approach to the Medicaid waiver, and 41 of those have, and some have not. But I think 

in every State, they have developed a very robust program around 

regulation and around access. And I think people are very, very involved in that process in each State. 

There are two reasons I believe that people discharge from assisted living, which is their preferred setting. One is that their 

level of care is such that they need to be in skilled nursing. But, 

36 

most often, there is a discharge, unfortunately, because they can’t 

access Medicaid, and they have to go to the skilled nursing center 

where they can access Medicaid dollars. And that is unfortunate, 

and we have talked a lot about that today. 

So I think one of the main ways that we can increase the ability 

of people to choose the setting in which they want to live is to reduce the institutionalized hold on the dollars that they need. But 

in terms of policies of access and Medicaid acceptability, eligibility, 

commitment to stay, those need to be fully disclosed and honored, 

and I think everyone in the assisted living community certainly 

that I know of supports that. 

Ms. DENTZER. So, then as a provider, what laws do you have to 

operate under within the State to discharge a person? 

Ms. BACON. Well, in our State, we are required to make plans 

for discharge if we cannot take medical care. In other words, if 

someone absolutely requires 24-hour skilled care, and even though 

we have 24-hour nursing onsite, we certainly don’t have the intensity of medical care that a skilled nursing facility has. 

So everyone has an obligation in every State under every State 

regulation—to every 50 State set of regulations, they have to discharge if they can’t care for them. I think beyond that, with the 

requirement for access to Medicaid funds, it is really what your 

State has developed in terms of its relationship and its State plan 

and its 1915 waiver in terms of how many waiver slots they have 

available so that people can stay in assisted living when they get 

there. 

Ms. DENTZER. So is there any ability for individuals on Medicaid 

to appeal any discharge decision? 

Ms. BACON. Oh, absolutely. 

Ms. DENTZER. There is. 

Ms. BACON. Absolutely. I have a person in one of my communities who has been there 11 years under a Medicaid waiver, and 

she will always be there. I have 305 people under Medicaid waiver, 

and they will be there as long as we can take care of them. 

If there is a discharge, whether it is a health discharge or any 

other kind of discharge, there are always consumer rights and resident rights policies in every State that I know of that allows them 

to question that discharge. 

Ms. DENTZER. Okay. Robert. 

Mr. JENKENS. Susan, I would say that I think there are some 

very good examples of States that do have discharge controls and 

reviews. I think Oregon is one of them. Not all States do, and I 

would say there is a great deal of actual I would term it ‘‘tragedy’’ 

involved with some of the discharges that I have seen and heard 

about for people who either run out of funds or where providers decide that the Medicaid program is no longer sufficient to cover 

those costs. 

I would say that discharge to me is one of the single-greatest 

issues facing assisted living and that for us to honor the values 

that assisted living was founded on—of home, of creating community, of integration in community, and aging in place—unless we 

address discharge issues and concerns, we won’t get to what assisted living promised. 

37 

Ms. BACON. Can I just respond? There is one situation where one 

company very notoriously decided they were withdrawing from the 

Medicaid program, and New Jersey was kind of the epicenter of 

that. We understand that. I have seen all of the horror stories and 

the things that have gone on there. 

The State of New Jersey has taken very aggressive action 

against that company, and I know of no other company in the assisted living industry that supports what happened there. 

Ms. DENTZER. Larry and Martha, I want to ask you if this has 

perked up on your radar screen as well. But let us go to Larry first, 

and then we will—— 

Mr. POLIVKA. One of the reasons we created the license in Florida in 1990 to allow people to age in place was that 4,000 people 

a year were leaving assisted living against their wishes and going 

into nursing homes, most of them Medicaid placements. 

You know, this is an inherently difficult issue. I think you have 

to give assisted living facilities the ability to make a decision about 

who can stay there, given the level of services that they can provide. And that sometimes is going to result in some really difficult, 

unfortunate decisions. 

But if you can expand your Medicaid program to cover, to really 

accelerate the growth of it, you are going to be able to allow assisted living facilities to allow people to age in place under more, 

a wider range of circumstances than can now. But regulating discharge criteria is a really difficult issue. I think you really have to 

err on the sides of giving these facilities considerable autonomy in 

determining that as long as there are disclosure provisions that 

really do reflect the kinds of decisions that are made. 

Ms. DENTZER. Robert, and then we will come over here to Josh, 

and then to Martha. 

Mr. JENKENS. So I think Larry brings up a very important point. 

I think you want to set a minimum standard of what assisted living will attempt to provide, and then you want to create a great 

deal of flexibility for that provision of service either to be delivered 

or brought in safely and affordably. 

But I do think there is a role for the State to challenge providers 

because many of the providers’ business models don’t involve people with high levels of need. 

Mr. POLIVKA. Right. 

Mr. JENKENS. As a matter of fact, they see that as a marketing 

issue or a cost issue. 

I want to also say that it is not just providers, however. So, in 

my experience, regulators and regulations often are an equal impediment to people staying in place and expressing their choices 

and assuming some risks associated with staying in a lower level 

of care. 

So I think there is an equally important piece of this that is really around what do regulations allow as far as civil rights, as far 

as people expressing their preferences and taking on some of those 

risks. And I know we will get to the issue of negotiated risk agreements later. That is one tool potentially for that, but there are 

many others. 

Ms. DENTZER. Okay. Great. Josh. 

38 

Mr. JOSH ALLEN. You know, this topic has me chomping at the 

bit because nurses are often at the center of the conversation about 

whether or not someone needs to be discharged. And I think we 

should start with the term ‘‘discharge.’’ I think it is highly inappropriate for the setting, given that we are encouraging it to be a 

home and home-like. You don’t discharge out from your home. You 

move out of your home. 

But Robert, I think, touched on a key point, which is, in my experience, it is actually not often the provider who is the challenge in 

this situation. It is the regulations that in some States are quite 

prescriptive in what can and cannot be done in assisted living. 

I have had the opportunity to work in a number of different 

States as an assisted living nurse. One of them, my great home 

State of California, has a literal laundry list of seven or eight 

things that simply are not allowed in assisted living. You know, 

case closed. 

You compare and contrast that to a State I have worked in, in 

Oregon, under the nurse delegation model that was brought up earlier. It is a good thing these mikes had off buttons, or we could 

have talked about delegation for hours. 

Under that type of model, there is much greater flexibility. 

Whether it is using negotiated risk or a service plan or whatever 

system you want to use, there is a much greater flexibility for a 

healthcare provider—a nurse, probably a physician being involved 

as well—to sit down with that resident and their family and the 

provider and make some decisions about what is appropriate for 

this individual and how can we meet their needs. 

So instead of just simply saying that if you have in the California 

example, if you have a G-tube, a gastrostomy tube, you cannot live 

in an assisted living community. Well, that is ridiculous. There are 

many individuals living with gastrostomy tubes in their homes, 

their true residential homes all the time. 

So to say that simply because you are in this licensed building 

it is inappropriate is, I think, largely just a sign of how old California’s regulations are. Whereas, under a model where we could say 

what is unique about this individual? Are they receiving food and 

fluids through that G-tube? Are they receiving medications through 

that G-tube? 

Well, in some cases, the answer is no. So, for that individual, it 

could be perfectly appropriate for them to remain in that assisted 

living setting. In a State like Oregon and others that utilize nurse 

delegation, allow that professional nurse to use their judgment of 

how and when to train staff to provide assistance. I think these 

issues, they touch on everything we have been talking about today. 

When you guys are getting into financing and banks, as a nurse, 

my eyes kind of glaze over a little bit. It is not my area. But the 

way that assisted living has really innovated over the last 20 years 

is, in many ways, what makes it affordable. 

One of the reasons it is so expensive to live in a nursing home 

is because an overwhelming majority of the functions being provided for that resident have to be provided by a nurse. Medication 

management would be the classic and best example. 

Why spend all that money to have a bunch of nurses running 

around passing pills when study after study has shown it can be 

39 

done very effectively by medication aides and medication technicians who have been trained or perhaps delegated to? 

There is a tremendous amount of innovation out there regarding 

the actual provision of services to residents. And I think if more 

States would take the time to learn from one another rather than 

sort of working in silos and trying to figure it out for themselves, 

but see what has been done, what has been done effectively, it 

touches on everything we have been getting into—from access to affordability to discharge to quality of care. 

At the end of the day, it goes back to the services being provided, 

and how can we provide them in a flexible way that can be tailored 

to the individual? Because if you want the opposite of that flexibility, quite frankly, you have a nursing home. 

Mr. JENKENS. Josh, can I throw in lenders really hate it when 

you violate those regulations? 

Mr. JOSH ALLEN. Yes. Larry, I actually didn’t catch your question. I don’t know if you were being rhetorical? 

Mr. POLIVKA. Well, sort of, half and half. But they only inspect 

every 5 years in California. So who knows? 

Mr. JOSH ALLEN. Well, the practical reality is—and I will speak 

from, I am obviously not a California regulator, but I do a lot of 

work in California. From a practical reality, they are in buildings 

much more than every 5 years. That is the minimum standard for 

regulatory inspections. 

They are also in the buildings for complaints, new licensure, 90 

days after licensure, and a host of other reasons. But nevertheless, 

any provider, I would hope, tries to practice to the letter what 

those regulations say. And unfortunately, in that example, there is 

a very prescriptive list of what is and isn’t allowed. 

Ms. DENTZER. Martha, I want to give you a chance to weigh in 

on this. 

Ms. ROHERTY. I think we had an all-State call a couple of weeks 

ago on assisted living, and one of the things that came out is, if 

the States have an up-front disclosure that is really robust, it really can help out the consumer. 

And so, we were kind of looking through what are some of the 

models for really a robust up-front disclosure? It would include like 

the preadmission process, the admissions process, what is going to 

trigger a discharge or a transfer, the plan of care, meaning the 

whole aging in place model and a consumer-directed vision for the 

consumer. 

The staff training, the orientation of the staff, the CPR, if they 

have volunteers, that they are trained, what the physical environment looks like. The staffing patterns, the shift times, and then the 

residents’ rights and who they can contact if there is a concern. 

But on top of that, the States were talking about the need to 

really disclose the cost up front because a lot of the people, like one 

of the States said that some consumers go into a facility that is a 

Cadillac, and they can really only afford a Chevy. 

Now who gets the burden of that transfer when that occurs? The 

State falls victim in a lot of cases because they are the bad guys 

that are not able to pay for the Cadillac, and the assisted living 

community is giving up that person’s home. So if they knew more 

in advance what is included in the base rate and in the extra fees 

40 

and everything right up front, I think we would have some more 

informed consumers, too. 

Ms. DENTZER. Eric, I want to bring you into this conversation. 

What is your perspective on this? 

Mr. CARLSON. First, I would like to say that it is important to 

keep disclosure in perspective. It is a good thing, but not if it is 

in lieu of some solid base of standards. Not that everything needs 

to be standardized, obviously. 

I think that there is a false choice that suggests that, by extending any kind of standards, you are turning an assisted living facility into a nursing facility or something that can’t be saved. There 

is a middle ground here, and to the extent that we rely on disclosure, I think we have an unrealistic expectation of how that works 

in practice. 

You are a consumer. There was a discussion here about a lot of 

these decisions being made in traumatic circumstances. You get a 

big stack of papers that describe how this facility is completely different from some other facility. Consumers aren’t in a position to 

really process it. 

They should be able to process and can be expected to process 

some differences around the edges, but not at the core. I think that 

consumers legitimately expect that there are some similarities between assisted living facilities, that they share some concepts. And 

when you buy into an assisted living facility, you know what that 

means at some basic level. 

There may be differences. So I think that, myself and my constituents, the people I work with, really worry that there is too 

much of a focus on disclosure if we are ignoring standards because 

of that. 

And then as applied to a couple of these issues—requiring that 

Medicaid be accepted, for example. In some States it is beyond disclosure that Medicaid, when a person becomes Medicaid eligible— 

and again, I am not from these States, but looking at the regs and 

the policy—Illinois, New Hampshire, Oregon, I believe. No, Illinois, 

New Hampshire in any case require that Medicaid be accepted. 

What I see in Oregon is a statement saying that every bed has 

to be certified. I want to say that is an incredibly important thing 

for a consumer. That if you are in an assisted living facility, you 

enter as a private-pay individual, you spend your life’s savings 

down to Medicaid eligibility, the facility is Medicaid eligible. You 

entered that facility knowing that it was Medicaid eligible, and 

then the facility says, ‘‘I am sorry. We don’t want Medicaid from 

you.’’ Just look at that from that person’s perspective. 

That is a hard, hard thing. And it strikes us as inappropriate to 

have a person pay their life’s savings in such a way and then be 

told that they have to leave. There is something a little cold about 

that that I think is inappropriate from a policy perspective, from 

a human perspective. 

And then the level of care issue as well, I think it is important 

to—I would suggest here that I think that facilities and consumers 

benefit from a little more specificity as to the level of care that the 

facility can and cannot provide. Because when the continuum is so 

broad that you have got some facilities that provide very little and 

41 

some that provide something close to a nursing facility level, it is 

difficult for consumers. 

And when they are told that they have to leave, it seems much 

more like an ad hoc decision that a facility is saying to them we 

are deciding in your case we don’t want to provide care anymore. 

And I agree with the statement that all the States say that a facility has grounds to discharge when the facility can no longer meet 

the person’s needs. 

But depending on what State you are in, it feels like an ad hoc 

decision because the facility in many of those States has the ability 

to provide care if it wanted to. The licensure standards allow for 

it, but the facility has self-defined itself as only providing a limited 

level of care. 

And I will also mention that the difficulty for the provider at 

that point of view is that it really does raise some ADA and fair 

housing issues because, if it is the State that is setting those levels, 

it is the State that is at risk for violating the ADA. It is the State 

that is not making a reasonable accommodation to allow people to 

stay. 

But if the State says we don’t have any problem with you providing this level of care and the facility is saying we choose not to 

meet your needs—and I think it was mentioned earlier, there is a 

financial calculation about all of this and the type of level of care 

that you want to provide—the facility really has some issues. 

And then as far as the process is concerned, there is a tiny, tiny 

minority of States that allow an administrative appeal in these circumstances. I agree that there may be regulations. And so, there 

are resident rights. There is probably in the vast majority of 

States, there is a listing of justifications for transfer and discharge, 

but they tend to be loose. They may refer to the contracts and if 

the contract-authorized discharge is okay, or it may allow discharge 

if the facility can no longer meet the person’s needs. 

So there is a lot of wiggle room there, and then there really is 

no administrative process. And it puts a consumer in a difficult position. California is one of those States. And in my experience, 

when consumers get a notice that says you have to leave, and there 

is no particular explanation of how it might be appealed—the law 

has changed in the last year or so—but they tend to just fold up 

their tent and say, ‘‘Well, I have been told what the situation is. 

That is it.’’ 

Ms. DENTZER. So I would like to hear from some of the State 

folks here and get a sense is this an issue in your State? Is there 

a mass movement among facilities to discharge individuals? Is 

there not? Is it a nonissue? And where along this spectrum do all 

of you fall? 

Julie, maybe you could start by clarifying what is the situation 

in Oregon? 

Ms. STRAUSS. So, in Oregon, we do have rules specifically around 

involuntary transfers, as we call them, or involuntary move-outs. 

And in our State, we have voluntary Medicaid participation. If you 

sign a Medicaid contract, you have agreed that Medicaid is a payer 

source. In our rules, you can ask someone to leave for nonpayment. 

42 

What we have said is, if Medicaid is a payer source and you have 

a Medicaid contract, you can’t ask someone to leave if they become 

Medicaid eligible. 

Ms. DENTZER. You cannot? 

Ms. STRAUSS. You cannot. That is not a legitimate reason if you 

have a Medicaid contract. Of course, our uniform disclosures and 

our agreements require that you say up front, ‘‘Do you have a Medicaid contract?’’ 

We have been very, very fortunate for providers who have decided that they no longer want to participate in Medicaid. They 

have gone through what we call a ‘‘gradual withdrawal contract.’’ 

So they have said anyone who currently is living in our facility, we 

will go ahead and extend to them the courtesy if they spend down 

that they can continue to be in our facility and we will continue 

to accept Medicaid as a payer source until they leave. 

What we are finding in the transfer rolls, quite honestly, what 

we are hearing, we don’t see a lot of involuntary move-out notices 

going for level of care. We probably see much more having to do 

with behavior associated with a safety issue, either to themselves 

or to others, because we don’t require the level of staffing in a lot 

of those facilities. A risk agreement is great when you are talking 

about negotiating with a family and an individual about their risk. 

It is another thing when there are other residents or staff being 

placed at risk by that individual. 

And so, we are seeing a much higher occurrence of involuntary 

move-out notices for behavior rather than actually for medical service need, which seems to be the dominant topic here with regard 

to service level of need is more the behavior service than the medical service. 

Ms. DENTZER. Irene. 

Ms. COLLINS. Susan, in Alabama, again, we don’t have Medicaid 

as a payee, or payer source. But we do have our bill of rights for 

our residents, and our ombudsmen are the voice out there for them 

if an issue does arise. And in addition, with the bill of rights, it is 

the same thing that Julie just said. In there, we are seeing more 

about behavior than we are about discharge for care. Same kind of 

thing. 

Ms. DENTZER. Krista and Kevin, what is the situation? 

Mr. COUGHLIN. In Wisconsin, two of our models, they are a little 

bit different. One model does allow for an appeal of a discharge, 

but that nonpayment issue is problematic sometimes because the 

person spent down, and then they don’t—a facility doesn’t have a 

contract for Medicaid. 

And in our State, we have Family Care is the Medicaid program, 

which is working very well. Right now, it does reach about 80 percent of the population as an entitlement. So, in those places when 

we have spend-down, many times they are then eligible, and then 

they can remain. 

We used to have a lot more discharges because of nonpayment 

because people had to go on a waiting list. So they went to nursing 

homes prematurely. But there is this issue does come up on occasion. I think disclosure is very important so people know ahead of 

time. But it is, when that happens, it is a very difficult situation. 

43 

When somebody does get an involuntary discharge because—for 

whatever reason. 

I think what is nice about our regulations is we do have some 

flexibility. So, usually, if there is a barrier to the regulations, many 

times we can issue a variance, add some extra protection so that 

the person can stay so we don’t have that move because transfer 

trauma can be very debilitating to an individual. 

And I don’t see it as—we do have some cases of that occurring, 

but I don’t see it as a huge concern. I think communities, when 

they can, want to retain those people as long as possible. 

Ms. DENTZER. And Krista. 

Ms. HUGHES. In Arkansas, the Office of Long-Term Care, as I 

said, regulates and licenses the facilities. The ones that enroll in 

the Medicaid waiver enroll through my office with the Division of 

Aging and Adult Services. And actually, we don’t even know how 

many units each facility—we don’t ask them—we had not previously. We are now. We had not previously asked them to stipulate. So, really, you wouldn’t know, even the long-term care surveyors would not know, going into a facility, which units were designated as Medicaid waiver units versus private-pay units. 

The State does not get involved with if a particular previous resident was a Medicaid waiver client and discharged for whatever 

reason. They would not even be required to put another Medicaid 

waiver client into that particular unit. It is just not ever seen to 

that degree. 

Ms. DENTZER. Okay. Let us move to the area of negotiated risk 

agreements. And Robert, I think you were starting to weigh in 

there? 

Mr. JENKENS. Sure. I think that—— 

Ms. DENTZER. First of all, just so we are all on the same page, 

what are those? 

Mr. JENKENS. Sure. So negotiated risk agreements mean different things to different people. But, in essence, the concept of a 

negotiated risk agreement is to allow an individual to assert that 

they are willing to take on some risk because either the provider 

doesn’t offer a service that they may be judged to need or the setting itself may offer less protection in the way of life safety, in the 

way of services, or regulation than some might judge them to need 

as well. 

So it is really a way to let a competent individual or the family 

make decisions the same way you or I do in our own home about 

what is good for us and what the balance is. So I don’t know how 

many of you in this room have gone skydiving? Most nurses would 

not allow you to go skydiving if they were asked to weigh in on 

that. So it is really in that context. 

I would say that, in this sort of three-party structure of good, 

strong, minimum regulations, additional flexibility allowed on top 

of those through good disclosure, and I would like to put in a plug 

for AHRQ’s disclosure collaborative that is producing what I think 

will be a model of disclosure standards. And then consumer choice 

in the form of some way for the consumer, whether it is negotiated 

risk agreements or something else, to really be able to assert some 

piece, their piece in the conversation between providers and regulators. 

44 

And currently, in my opinion, consumers of assisted living don’t 

have much of a voice in that conversation. So there is a paper funded by ASPE, of which I was an author, looking at negotiated risk 

agreements. This was about 5 years ago. The state of negotiated 

risk agreements, and then the pros and the cons around that. 

Ms. DENTZER. Josh. 

Mr. JOSH ALLEN. I think one of the practical realities of negotiated risk is often the question of who are you negotiating with? 

The resident, at the end of the day, is the person you are responsible for, and they are the consumer. But virtually every assisted 

living resident I have ever talked to has had a family member involved in some shape or form or another. 

Sometimes it is a very clear legal relationship, you know, a 

power of attorney, for example, conservatorship. More often than 

not, I think it isn’t. It is simply a relative who has helped mom or 

grandpa or whoever it is make their way into that assisted living 

community. 

And I am speaking from many, many examples of personal experience where we know what the direction is for a resident, but we 

have conflicting direction from a family member. An example that 

sticks out in my mind I will never forget was in an assisted living 

community in Los Angeles I worked with where we had a resident 

who was to be receiving Aricept related to Alzheimer’s disease, 

medication. 

The family member who was the responsible party didn’t have 

any real legal authority. But took it upon themselves to stop making the co-pays for that Aricept, and now as a provider we were 

sort of stuck in the middle of we know this resident needs it. The 

family, who is controlling the money—probably not entirely legally—doesn’t want to pay for it. 

And those sorts of examples happen time and again. Issues related to driving, issues related to wandering, issues related to following physician-prescribed diets. There are dozens of very practical examples where negotiated risk could perhaps play a role. But 

one of the practical realities, one of the challenges is it is not always as simple as the provider, the resident, and the regulations. 

It is usually a much more complex relationship with family members and perhaps legal representation for the resident. 

That, at the end of the day, the care provider is stuck sort of 

wading through that somewhat tricky mess of figuring out at the 

end of the day who really should be making decisions for this resident. And this becomes even more tricky when we get into something we haven’t talked about a lot today, but Julie started to bring 

it up, and that is the issue of memory care. 

Persons with dementia, Alzheimer’s disease, without question 

one of the fastest-growing segments of the population that are in 

need of assisted living services. Who is making the decisions for 

that person? 

They rarely come to us with any sort of conservatorship. At most, 

there might be a financial power of attorney. And there are a number of logistical challenges to really successfully implementing anything that I would say resembles negotiated risk. 

And then one last comment. I think what is important to take 

away from the ideas behind negotiated risk is the concept of comVerDate Nov 24 2008 11:13 Sep 14, 2011 Jkt 067530 PO 00000 Frm 00048 Fmt 6633 Sfmt 6633 C:\DOCS\67530.TXT SHAUN PsN: DPROCT
45 

munication. Every State has different legal realities regarding negotiated risk. 

In California, for example, we cannot use negotiated risk. In 

other States, they require you to have negotiated risk. And again, 

that is, I think, appropriate based on what fits the needs of the 

consumers in each State. But the running theme with negotiated 

risk is that it encourages communication. 

Someone earlier brought up the service planning or the care 

planning process. That is really what needs to be happening is the 

provider, the resident, whoever else is involved in making these decisions, they need to sit down and they need to talk. It really is no 

more complicated than that. 

You know, we could spend hours going in circles about the details, but it really is that simple. If all those interested parties sit 

down and have a conversation about what is needed, what is allowed, what is not allowed, how are we going to figure this out, in 

virtually every instance, you can come to some resolution. 

And again, that starts to feed back into the discharge question. 

It starts to feed back into the level of care question. It is a very 

umbrella type of issue. When I worked in the corporate office for 

an assisted living provider as a nurse, one of my responsibilities 

was to get involved any time we were considering an eviction notice, an involuntary discharge, involuntary relocation. 

And I can tell you, in 99.9 percent of cases, we were able to avoid 

ever writing that eviction notice. We didn’t have to get the attorney 

on the phone to write a letter because we could sit down and we 

could talk. And sometimes the end of that conversation was the 

resident stayed, and we figured out a way to make that work, as 

in the case of the Aricept resident. 

Other times the decision amongst all of the parties was, you 

know what, dad is wandering. We have found dad outside a few 

times in the last couple of weeks, and there are some very real 

safety concerns. And as painful as that decision is to move out, everyone, at the end of the day, was in agreement. It was the right 

decision. 

Now it wasn’t under the heading of negotiated risk, but I think 

the concept was there. To get people to sit down and talk and get 

all of the parties at the table. And you said what could we come 

to consensus to? I would certainly hope this group could come to 

consensus on that. 

Mr. JENKENS. Susan, just a quick comment on Josh. I think he 

summarized the findings, actually, of our study quite beautifully, 

which really is the conversation that is important. And I think 

what we need, again, whether it is a negotiated risk agreement or 

some other framework, is the requirement that the conversation 

take place. 

And I think in States that require a negotiated risk agreement, 

that provokes the conversation that says who should be included, 

including the consumer? I think in States where we don’t have language around that, too often we get the eviction notice with no explanation, and the person is just, as we say, gives up and moves 

on. 

46 

Ms. DENTZER. So can you give us a sense how many States are 

like California—if I understood you, Josh—don’t allow negotiated 

risk agreements at all? How many allow them? 

Mr. JOSH ALLEN. For point of clarification, what California does 

have, though, are very clear standards regarding the development 

of a service plan, which I would argue—I am a nurse, not an attorney. I am sure there are lots of them in the room. There is a legal 

difference between disclose and a service plan, but I think the concept is very similar. 

Mr. JENKENS. I am guessing Eric knows the number because I 

have forgotten. 

Ms. DENTZER. True? You know? 

Mr. CARLSON. Yes, 16 or 17 States have something in their regulations that look something like negotiated risk. They may call it 

something different. It may be managed risk. It may be informed 

consent. So I think it is confusing to say that, say, 16 States authorize it, and that is shown by this conversation. I think Robert 

started by saying, well, it is hard to say what negotiated risk is. 

And this conversation illustrates it because we started talking 

about a waiver of liability, and we ended up talking about a conversation. And those are very different. And I can say I think the 

conversation is great. That is obviously important. I would hope 

that we could come to consensus on that. 

But that is just light-years away from a consumer signing an 

agreement that says you, the service provider, will not be liable if 

certain bad things happen. It is hard to imagine any of us signing 

that in any other context—in a school context, in a service context. 

And again, we know how this happened. I would suggest that in 

the long-term care setting, it is usually the providers that present 

these agreements, and the consumers are not in a position to negotiate practically. 

I have written a Law Review article on this in the Journal of 

Health Care Law and Policy that lists all the states. But I just 

want to mention from a legal perspective, if it is a waiver of liability, legally, it is unenforceable. The only, only arena in which from 

a consumer’s perspective you can have a waiver of liability like this 

is in skydiving or bungee cord jumping or anything like skiing, 

downhill skiing. 

But going to an assisted living facility is not like jumping out of 

an airplane. It can’t be, and it isn’t legally—there was a case in 

Delaware that the facility had what I think we would recognize as 

a negotiated risk agreement that stated that the agreement absolved the facility from ‘‘personal injuries or damages, even if resulting from negligence,’’ and the contract said that this was in return for the resident having ‘‘independence, control, and choice’’ 

and ‘‘a higher quality of life.’’ 

This was negotiated risk, and the resident in this setting suffered a fall, had irreversible brain damage. In its defense, the facility put forward this agreement and said, well, these guys made a 

choice. They made a contract with us at the front end and said in 

return for living in this more home-like environment with a less institutional setting, they have released us from liability for these 

bad outcomes. And the trial court in this case said it would be unVerDate Nov 24 2008 11:13 Sep 14, 2011 Jkt 067530 PO 00000 Frm 00050 Fmt 6633 Sfmt 6633 C:\DOCS\67530.TXT SHAUN PsN: DPROCT
47 

conscionable to enforce this type of waiver of liability in a consumer 

setting. 

And so, my suggestion on negotiated risk is there needs to be 

some real clarity. I think all these States are playing a little fast 

and loose by putting these terms out there and being a little 

squishy about exactly what they mean. We need some real clarity. 

And if we are talking about a conversation, we should talk about 

a conversation. And if we are talking about a waiver of liability, 

we should talk about a waiver of liability. But we shouldn’t talk 

about them both simultaneously without extricating them from 

each other. 

Mr. POLIVKA. Eric, I thought it was decided over 10 years ago 

that there was no waiver of liability? I thought, my assumption has 

been all along that you are talking about a continuing care planning instrument. You are not talking about a waiver of liability 

with a negotiated risk. 

I mean, I thought that was decided long ago. 

Mr. CARLSON. Well, I would like people to be clear about that. 

Because what I heard, I think Robert stated it accurately, which 

is that classically that is what these negotiated risk agreements 

contain. The Law Review article that I have written cites multiple 

statements by provider attorneys and by insurance companies and 

provider magazines recommending negotiated risk agreements for 

exactly this purpose. 

And I agree in the public policy discussion when it comes up. I 

think people, in defending negotiated risk, say, well, it has nothing 

to do with waiver of liability. It is about negotiation and service 

planning, and that is why we have this confusion. We are talking 

about things without defining them adequately enough. 

If everybody in this room agrees that there shouldn’t be any liability waivers, I think we should write a document and say no liability waivers, and that would be tremendous. 

Mr. POLIVKA. Well, it has never been found to hold in any litigation. 

Mr. CARLSON. Pardon me? 

Mr. JENKENS. I think where we are with this right now is I think 

there is a role for, as Eric points out, additional clarity, some 

standards, and a definition of what is in it and what is out. So Eric 

cited a pretty egregious case. I think we can probably find those 

cases for almost any subject we would choose to discuss. 

I don’t think that means that the concept of negotiating around 

risks from a consumer perspective so that they can make choices 

about what they are willing to risk or not risk is a bad one. I think 

we haven’t found perhaps the right vehicle or at least the right 

middle ground in that vehicle to do that. It is a good area, I think, 

for further development. 

Ms. DENTZER. Well, just on that point, as we have about 8 minutes left here, I gather there would be some consensus on having 

a conversation go forward on this topic in particular, whether it is 

a question of clarification at the Federal level, whether it is model 

legislation for the States. Something like that to do more to standardize these definitions or—— 

Mr. JENKENS. Well, I think—you know, I think the first question 

is, is this important enough? Is there enough of this going on in 

48 

the world to actually have that conversation? Eric and I could talk 

about this for the rest of our lives. We find it endlessly interesting. 

Ms. DENTZER. Or might there someday be enough of this going 

on in the world? 

Mr. POLIVKA. I think there are many other higher priorities. 

Mr. JENKENS. That is what I was going to say. I am not sure this 

is a priority among affordable financing, regulatory issues, et 

cetera. 

Ms. DENTZER. Okay. So in the interest of time, let me jump back 

then to the whole discharge area. Any sense of what this or another group like it could contribute there, or is that another one 

that is lower down on the list than, say, the financing or some of 

the other issues we talked about? Charley. 

Mr. REED. Yes. One of the things that was touched on quite a 

bit, I think it begins with the admission criteria and how it is disclosed. I think that is the up-front place to start. 

But the other thing we haven’t touched on very much is the responsibility that State Medicaid programs and long-term care programs have in helping out with this. If people really do spend down 

and become Medicaid eligible, the State has a responsibility for 

that person to help them understand what their options are and to 

help them get to those options. 

And so, it is no question that the assisted living facility has a responsibility, but so does the State. I think a lot of States haven’t 

stepped up to that responsibility yet—that there is an obligation 

that States have to help people understand what their options are 

and how to actually take advantage of those options. 

Ms. DENTZER. Okay. Well, moving on, let us jump back to our 

conversation about financing, sources of Federal funding. There 

seemed to be some consensus around having more discussions on 

bringing more people, more entities to the table, whether it is the 

States, whether it is the Feds, et cetera, to get a better sense of 

the sources of financing that could be tapped and how they can be 

best utilized. 

Fair enough? Is that a fair summation of what there was clear 

agreement on? So that would be, if anything, a point of consensus 

this group, I think, would put forward. 

Moving to the first part of our conversation, which was around 

the whole question of what is assisted living anyway? What are essential services? What is the core philosophy? We, in that context, 

began to talk a bit about the notion of a Federal floor or ceiling. 

I didn’t detect necessarily any consensus points there on discussing 

that going forward. But if there were, that is another recommendation that probably is worth putting forward. 

Any feedback there? Robert. 

Mr. JENKENS. I think there is a lot of value in discussing what 

a floor should be for the Medicaid-funded programs and then 

whether or not there should be a ceiling. And I think there has 

been a lot of discussion around that over the years, the assisted living workgroup initiated by the Special Committee on Aging, and 

then the CO has continued that. 

So I do think it is worth sorting out what is worth paying for and 

what truly brings the values of control and dignity and privacy to 

49 

someone who is receiving Medicaid funding. I would be a strong 

supporter of that. 

Ms. DENTZER. Anyone violently opposed? Larry. 

Mr. POLIVKA. I am sort of two minds about this. I think that 

what CMS has laid out has been functional. It has worked well for 

a long time for those States that are willing to pursue expanded 

funding through their waiver programs for assisted living. 

The problem is, as I see it, and I may be overreacting, but in 

looking at long-term care trends, which I do fairly routinely now, 

it strikes me that States are really going to be moving towards 

managed long-term care designs because of the fiscal crisis and because the experience of States like Arizona and Wisconsin in developing their managed long-term care models. They seem to be cost 

effective. Some work better than others. I think Family Care is better than ALTCS. 

But what you are going to get with that movement is what has 

happened in those States, including Florida to a lesser, but substantial extent, and that is massive use of assisted living. That is 

where the expansion is going to occur with managed long-term care 

development, I think, based on the experience of the States that 

have already done it in the last 10 years. 

As that happens, I think there will be increasing pressure on 

State and Federal officials, legislators, and CMS people, and everybody else to begin to look at the issue of floors and ceilings from 

a different perspective than we have since 1990. And I have been 

a pretty laissez-faire, had taken a pretty laissez-faire approach to 

this for the last 20 years. I think it has worked well. 

But that may be on the cusp of changing, as we see qualitative 

change in the design of long-term care systems and financing over 

the next 10 years. 

Ms. DENTZER. Josh. 

Mr. JOSH ALLEN. I would just sort of repeat what I commented 

earlier that I think you have to be very careful on the services side 

when you start talking about ceilings. Again, these sort of magical 

lists or criteria that say, no, this person is no longer appropriate, 

I think that flies in the face of the concept of consumer-directed 

and autonomy and choice and decision-making. 

So I would just throw out a word of caution about the concept 

of putting a ceiling on what that setting may be for each person. 

Ms. DENTZER. And you are the person who wouldn’t let anybody 

go skydiving, right? 

Mr. JOSH ALLEN. I would let Robert go skydiving. 

[Laughter.] 

Mr. POLIVKA. But the problem with that is that you are going to 

have a lot of pressure to move people out of nursing homes en 

masse, and then you run the risk of losing the thing that really distinguishes assisted living from nursing home care. You are going 

to blur the boundaries, and you are going to lose the quality of life 

focus that really defines and justifies the assisted living model. 

So ceilings may not be the right way to talk about it, Josh. But 

you need to be concerned about at some point with these massive 

changes as they occur, what happens to the kinds of places where 

people live? 

50 

Mr. JOSH ALLEN. Well, but I would argue that many of the same 

types of nursing services and quality of nursing services are, in 

fact, provided in assisted living that just a short 10 years ago or 

20 years ago would have thought to have been only appropriate in 

a nursing home. So I don’t know that the sign outside the door necessarily dictates whether or not services can be provided. 

I think what is different is the model on which they are provided. 

And the very simple example is you walk into typically any nursing 

home in the country, one of the first things you will see is a very 

large and expansive nurses station with hundreds and thousands 

of pieces of paper and people in nursing uniforms. 

Most large assisted living communities have those same nurses 

stations. They are just not there for you to see. They are hidden 

behind a wall in a way that is much more comfortable for the consumer and feels more like a home. So the same services, many of 

the same services are being provided. 

I don’t think saying that just because assisted living would start 

to provide those services would make it no longer assisted living. 

I think it is how they are provided. 

Mr. JENKENS. I think the line is already blurred, and I think the 

Green House Project is a good example of that. In skilled nursing, 

we learned from assisted living and we brought it back into skilled 

nursing. And I think that is a good model, and I think we should 

blur the lines as much as possible to give people choices. 

Ms. DENTZER. And as we bring on remote monitoring and other 

technologies, things will change even further. 

Irene, a quick last comment because we are at 4:00 p.m. 

Ms. COLLINS. I was going to simply say that we have to remember the whole discussion is centered around the individual and personal choices. 

Ms. DENTZER. An excellent note to end on, lest we think this is 

about something else. 

Anyway, I want to thank all of you for a terrific discussion. I believe it is the case that this will not be the last of the roundtables 

or square tables the committee holds as it works its way through 

these issues. 

But thank you very much. It has been a very good and vigorous 

discussion, a candid one. And I am sorry we have to end it here, 

but we hope to continue going forward, and we will look forward 

engaging you all in the future. 

Thank you very much. 

[Whereupon, at 4:00 p.m., the roundtable was concluded.] 

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Æ 


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