BOARD AND CARE


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OFFICE OF INSPECTOR GENERAL 

OFFICE OF EVALUATION AND INSPECTIONS 

MARCH 1990 
BOARD AND CARE


Richard P. Kuserow 

INSPECTOR GENERAL 

OEI-02-89-0186 MARCH 1990

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TABLE OF CONTENTS 

EXECUTIVE SUMMARY 

NTRO DU CTIO N .... ................................................. .................................8............8..... 1


PU R P~S E ............. .................................................................................................... 1


B AC KGROUND ................................................................................................. .."8... 1


M ETHO DOLOG Y ......................... ...8................................ ..................."..................... 3


FI N DI NGS. ................ .... ..... ......................................................... 4


Although State Standards Adequately Address Certain Basic Safety


and Service Requirements, Weaknesses Exist in


Other Important Areas ...11.... ......... 4


While States Conduct Basic Enforcement Activities,


Serious Weaknesses Exist .......................................................................11.... 10


The DHHS Plays a Limited Role in Board and Care........................... 


R ECOM MEN DATION II...... II. .11..... 17


Co mments ..... ...... II......... ..11............ ..... ...... .......... ....... .11.............................. ..11.... 


APPENDIX A: 818 LIOG RAPHY ................................ .... A -


APPENDIX B: COMMENTS ON THE DRAFT REPORT ........................... B - 1


APPENDIX C: CHARTS................... .................................... ................. ........ ...... C - 1

EXECUTIVE SUMMARY 

PURPOSE 

The purose of ths inspection is to assess existig State board and care reguations and 

enforcement activity. 

BACKGROUND 

Board and car refers to nonmedcal community-based living argements providig shelter 

foo, and protective oversight to a dependent elderly and disabled population. Over one 

milon elderly and disabled individuals reside in boar and care facilties nationwide, and 

their numbers ar increasing. 

As an outgrowth of abuses in board and car facilties, the Congrss enacted the Keys 

Amendment (Section 1616 (e) of the Social Securty Act) in 1976. It requis States to set 

stadads that assur that Supplementa Securty Income (SSI) recipients do not reside in 

substadad facilties. The Offce of Human Development Servces (OHDS) has the Federa 

responsibilty for adminsterig the Keys Amendment and assurg that States have these 

stadads in place. 

The American Bar Association (ABA) developed "A Model Act Reguatig Board and Car 

Homes: Guidelies for States" under an OHDS grt to help States develop standads to 

improve conditions in the homes. 

METHODOLOGY 

Ths inspection included the followig activities: intervews with Federa offcials involved 

with board and car; discussions with 70 State offcials in 50 States and the Distrct of 

Columbia (DC) representig 72 State progrs involved with licensing and/or certg 

board and car facilties; analysis of curent stadads for each of the 72 progrs; and onsite 

visits to seven locations involvig intervews with 26 providers, 15 provider or resident 

advocates and several State offcials. 

FINDINGS 

Although Stale Standards Adequately Address Certin Basic Safety And Servce 

Requirements, Weaknesses Exist In Other Importnt Areas. 

Alost al State stadas addrss personal car servces, fIre safety, physical strctue, 

sanitation and licensing. Only limited attntion is given to level of care needs of residents, 

tring, dealing with unlicensed facilties, complaits and coordnation among responsible 

agencies, providers and consumers. 
Alost th-quarers of State respondents and more than the-quarers (80 percent) of 

providers and advocates recommend a common set of national minimum standas. These 

should include basic safety and servce requirments, ways to deal with unlicensed facilties, 

sta trg, reuirments for dierent levels of care and coordination among responsible 

agencies, providers and consumers. They feel that such stadads would create greater 

unonnity and effectiveness in reguation and enforcement 

While States Conduct Basic Enforcement Activities, Serious Weaknsses Exist. 

Alost al States conduct inspections and issue con-ective action plans. Only about one-third 

of State stadas provide intennediate sanctions such as assessing civi moneta penalties 

and prohibitig adssion of new residents to homes under citation. According to some 

respondents, the absence of these sanctions restrcts States ' enforcement capacity. 

Whe most States have the abilty to revoke or deny licenses, less than hal actually did so in 

1988. Mor than one-thd of State stada provide for closing homes and removing 

residents, but only 11 States actualy tok these actions or imposed any penalties or sanctions. 

There ar a number of enforcement concerns which exist with regard to board and car. 

Unlicensed homes ar one such enforcement concern. Ambivalence exists as to how these 

homes should be penalzed Over the-quarers of State respondents cite consttnts to 

effective enforcement. These include liited sta, a lengty legal process, insuffcient 

fmancial resources, the absence of legal authority for sanctions and the lack of alternative 

placement Close to hal felt their States assigned board and car a low priority. A majority 

felt the Keys Amendment could not be enforced 

The DHHS Plays A Limited Role In Board And Care And Limited Coordinatin Exists. 

Activities afectig boar and care facilties and residents ar liited with HHS. The Offce 

of Human Development Servces is responsible for adinisterig the Keys Amendment. The 

States must noti the Social Securty Administration (SSA) of violations of the Keys 

Amendment and SSA provides inonnation to States to assist in identig unlicensed homes. 

The Adminstrtion of Developmenta Disabilties (ADD) and the National Institute of Menta 

Health (NI) both have protection and advocacy progrs administered by State agencies 

or organations which may include residents of boar and car facilties. The Administrtion 

on Agig (AoA) has an Ombudsman Progr which advocates the rights of the 

institutional elderly includig residents in board and car facilties. The Health Care 

Financing Admstrtion (HCFA) has a home and communty based waiver progr which 

gives States the option to broaden the definition of "medcal assistace" under Medcaid if 

States cert compliance with Keys Amendment reuirements. These waivers may include 

servces to board and care residents. The Assistat Sectar for Planning and Evaluation 

(ASPE) has severa board and car initiatives curntly underway. 
There is limited contact between these varous agencies within IlS involved with board and 

care; each unit functions independently and has litte awareness of relevant activities occunng 

elsewhere in the Deparent 

RECOMMENDATIONS 

States should 

Re-evaluate their board and care standas especially in the areas of level of care, 

traiing, coordination and unlicensed facilties. 

Improve their abilty to identiy and deal with unlicensed facilties and provide 

incentives for facilties to become licensed. 

Use such sanctions as civil moneta penalties, restrctions on new admssions and 

closing of homes. 

Assure that existing procedurs for resolvig complaits are sufficiently publicized 

so that complaits ar brought to the attention of the proper authorities. 

To support Stats' efforts in implementing the above recommendations, OHDS should 

designate a unit for board and care which will 

Dissemiate information on such matters as operational efficiencies, effective 

enforcement techniques, researh and States ' best practices. 

Prmote more effective use of the Model Act 

Prvide technical assistance to States, parcularly to support the standads and 

enforcement concerns highlighted in ths report 

Coordinate deparental activities relative to board and care. 

COMMENTS 

Comments on the draf report were received from HCFA, ASPE, AoA, PHS, SSA and OHDS 

and were generaly supportve of our findings and recommendations. While support was 

expressed for our recommendation that there be a Deparental coordinating unit, the 

question of fundig was raised by OHDS (See Appendi B). We continue to believe the


problems addrssed in this report are suffciently important to wart the relatively small


expenditu necessar to support a coordinating u it.

INTRODUCTION


PURPOSE 

The purose of this inspection is to assess existig State board and care regulations and 

enforcement activity. 

BACKGROUND 

History 

Board and car refers to nonmedical community-based living argements providig shelter, 

food and protective oversight to a dependent population of elderly and disabled. These 

facilties var widely in defInition, size, resident populations, fundig sources and servces 

provided. The termnology for board and car facilities encompasses a broad range of titles 

such as residential car, personal care, adult foster care, sheltered car, domicilar care, 

famy homes, adult homes, group homes and assisted living. Board and care residents have a 

wide range of demographic characteristics and needs; they include the elderly, 

developmentay disabled and mentay impaid. 

All States have regulations relatig to board and care. However, States use a varety 

defInitions and a wide rage of size crteria to identiy these homes for licensing. The 

defmition is usually based on the services provided rather than the anticipated needs of the 

residents. A board and care home may be defined by a State as "a publicly or privately 

operated residence that provides meals, lodgig and personal assistace to two or more adults 

who ar unrlated to the licensee or admistrator. " In contrast, a nursing home provides 

24- hour medcal care. 

State regulations requir that al facilities which fit their definition of a board and car home 

be licensed or certed. The license is issued to a specific licensee for a specifc facility and 

cannot be trsfen-ed to a different licensee or facilty. The licensee is the person(s) who holds 

the license to operate the facilty and is responsible for seeing that the licensing requirements 

for the facilty ar met The licensee may operate and maintain the home or delegate those 

functions to an admnistrator or manager. 

Oversight and enforcement also var. Within some States more than one agency has 

responsibilty for board and care, differig usually with the tye of resident, size of the facility 

and kids of services provided to the residents. The most prevalent agencies involved are the 

Deparent of Social Servces, Deparent of Public Health and Deparent of Mental 

Health and Retardation. 

According to the House Subcommttee on Health and Long-tenn Car report, over one millon 

elderly and disabled individuals reside in board and car facilties nationwide. Their numbers 

are increasing due primarly to thre factors. The first is the deinstitutionalization of the 
mentaly il in the 1960s which resulted in many of these people being placed in board and 

care homes because they continued to require a sheltered environment. Second, the enactment 

of the Supplementa Securty Income (SSI) progr in 1972 created a guarantee of payment 

for owners and operators of these facilties. Lastly, a shortge of nursing home beds and other 

long-term car services has resulted in more admssions to board and care homes. 

Legislative Highlights 

The Keys Amendment was enacted in 1976 (Section 1616 (e) of the Social Securty Act) as an 

outgrowth of abuses in board and care facilties in the mid- 1970' s. It requires States to 

establish, maitai and insur the enforcement of standads" for residences where " 

significant number" of SSI recipients reside or are liely to reside. It also has a penalty 

provision which reduces a reipient s SSI payments if he or she resides in a facilty not 

meetig State standards. This reuction is applied to that porton of the payment that is a 

State supplement and only by the amount of the supplement that is used for medical or 

remedial care. The legislative history reflects the concern of Congress that Federal SSI 

benefits not be used to support substadad living facilities. 

The Omnbus Budget Reconcilation Act of 1987 is likely to impact on board and care. 

elinates (by October 1 , 1990) the Medicaid distiction between skilled nursing facilities 

(SNFs) and intermediate car facilties (ICFs) and combines them into a single level, called 

nursing facilty," under Medicaid. Some ICFs that cannot meet the more sttngent 

requirements for nuring facilties wil be downgrded to a lower level such as board and care. 

As a result, residents presently in ICFs may no longer be eligible for nuring facilty car and 

may become board and care residents. 

HHS Role 

A number of HHS components have responsibilty for board and car homes or their residents. 

The Offce of Huma Development Services (OHDS) has the Federal responsibilty for 

managing the Keys Amendment and seeing that it is implemented at the State level. The 

Admnisttation on Developmental Disabilties (ADD), the Admnistrtion on Aging (AoA) 

and the National Institute of Mental Health (NIM) each provide grts to States to operate 

an Ombudsman or a protection and advocacy program for their respective client groups. To 

help States locate board and car facilties, the Social Securty Admistrtion (SSA) provides 

State Data Exchange (SDX) tapes which identiy addresses where th or more SSI recipients 

reside. The Health Care Financing Admnistrtion (HCFA) issues waivers to broaden the 

defmition of "medical assistance" under the Medicaid progr if the Keys statute and 

regulations ar met. 

Prior Activities 

Concerns about the quality and services in board and care homes were highlighted in a prior 

Offce of Inspector General (OIG) study (1982) and, more recently, in both a General 
Accountig Offce (GAO) study and a report issued by the House Select Commttee on 

Aging s Subcommttee on Health and Long-term Care (March 1989). 

The American Bar Association (ABA) developed "A Model Act Regulating Board and Care 

Homes: Guidelies for States" under an OHDS grant in 1984. This was intended as a 

resoure document to help States develop and revise standads to improve conditions in the 

homes. Fire and safety gudelies were also developed by an HHS interagency task force and 

shared with the States. These guidelines were the result of a ten year effort and have been 

incorporated in the Life Safety Code by the National Fire Protection Association. Curently, 

there is a large evaluation being conducted of this system which is being jointly funded by six 

Federa agencies. 

METHODOLOGY 

This inspection was conducted in thee par. Firt, Federa offcials with some responsibility 

for board and care were intervewed to determe the level of activity within HHS. 

Second, 70 discussions with State offcials were conducted in 50 States and the Distrct of 

Columbia (DC). They represented 72 State program involved with licensing and/or 

certyig board and care facilties (one person in 33 States, two each in 15 States and thre 

each in 3 States; in 2 States one respondent spoke for two program). An effort was made to 

identiy al agencies in each State with responsibilty for this function. Information was 

obtaied regarding licensing, certfication and enforcement activities, and perceptions were 

gathered regarding board and car regulations and their enforcement. Copies of curent 

standads and licensing requirements for each of the 50 States and DC were obtaied and 

analyzed agaist the Model Act, each other and exemplar State standads for commonalties 

and varations.


Durg the th par, on site visits were made to seven locations (California, DC, Georgia, 

Michigan, Missour, New Jersey, and New York) selected on the basis of geographical 

distrbution, recommendations from State and industr respondents and prior analyses. 

Members of the team included a physical therapist and a registered nurse. Interviews were 

held at 26 homes selected for severa reasons, including whether they cared for SSI recipients 

or parcipated in demonstration program. The 26 homes represent a mix of diferent sizes, 

services and types of residents served. Also interviewed were 15 advocates of providers or 

residents and severa State officials involved with board and care. The interviews included 

discussions of State standads, enforcement and problems in the industr. 
............................................................................ 

FINDINGS


ALTHOUGH STATE STANDARDS ADEQUATELY ADDRESS CERTAIN BASIC 

SAFETY AND SERVICE REQUIREMENTS, WEAKNESSES EXIST IN OTHER 

IMPORTANT AREAS.


States have made progress in carng out their responsibilties in board and care facilties 

over the past few year. Alost all State stadads include basic safety and service 

requiements such as personal car services, fIre safety, physical strctue, sanitation and 

licensing. However, only lited attention is given to the level of care needs of residents; 

trning; dealg with uncensed facilties; a complaints procedur requirement; and 

coordiation among responsible agencies, providers and consumers. State standads were 

compar to the Model Act to determe States' conformty to key areas in the Act (Figue I). 

See a State by State comparson to the Model Act in Appendi A. 

FIGURE I


State Conformance With Model Act Provisions


11 

88" 100"80" .88ft 

88" 88" 82"

88". 

.7ft........................... 

A - Definition of Board & Care H - Residents' Rights 

B - Physical Structure I - Size Criteria 

C - Admissions Criteria J - Training Requirements for Staff


D - Administrator /Staff Qualifications K - Variance and Waivers


E - Licensing Requirements L - Complaints Procedures


F - Enforcement Programs M - Board & Care Plan


G - Sanctions N - Unlicsed Facilties

percent) include personal care services, fire safety, Almost all State standads (over 95 

physical strcture, sanitation and licensing. 

Vinally all State stadas presently reuire the provision of minimal personal 

car servces. Most commonly, these include assistance with daily living activities 

(94 percent), help with medications (96 percent), diet (96 percent), and supportive 

servces (86 percent). All the standads addss sanitation, including foo 

handling, laundr, water and sewerage. Alost all address the physical strctue 

of the buildig, includig the architectual plans and fie safety. Most also deal 

with residents' rights (85 percent) and record- keeping (92 percent), although 

usually in a lited way. 

State standards do not adquately adress residnts' needs. 

According to almost half of the respondents, standads do not clearly distinguish 

the level of care needed. They cited this problem most frequently. Respondents 

report that while the original "Mom and Pop" facilities served a fairly 

self-sufficient population, the medical and health needs of many residents are 

increasing. One respondent stated, "The standards are not responsive to the change 

in residents ' needs. " Another said, "We need to be more realistic with regard to 

who lives in the homes. Homes with SSI and developmentaly disabled residents 

ar very dierent than those with private-pay elderly." While most respondents 

cited this need for increased level of car, many mentioned diffculty in providing 

these addtional servces due to the limited financial resources of board and care 

residents who have only SSI benefits as income. 

State standads do not meet the needs of the changing population in board and care 

homes. Most stadads (68 percent) restrct the adssion of residents to homes if 

they are physically or mentaly unable to evacuate the premises independently. 

However, respondents report that some curnt residents do not meet this criterion. 

Additionally, team onsite visits to homes showed residents who were wheelchair-or 

bed-bound and others who cognitively would not be able to leave the home 

independently. Also, alost hal of the State stadads do not restrct admitting 

residents to homes without adequate resources to car for them. Thus, residents 

with grater car needs may potentially be placed in facilties where their needs 

cannot be met 

Almost two-thirds of the State standads do not specifcally mention a board and 

car plan, although thee-quarers require physician certcation upon admssion. 

Such a plan is one way of planning and providing for different levels of car. Of 

those standads which do addrss car plans, the great majority do not specify how 

often the plan should be updated. 
Simiarly, case management (someone monitoring the needs of each resident) is 

noted in only 38 percent of the stadads, generaly with the developmentally 

disabled and mentaly impaied as opposed to the aged. The Model Act provides 

that each resident should have a board and care plan which is reviewed quarerly 

and which describes the abilty of residents to fuction in the home. One provider 

stated: "We need regulations which watch for the changing condition of the 

elderly patients and not just nitpickig of easy envionmenta issues. 

Over one-thd of State stadads do not addrss nursing services. Of those that do, 

over hal prohibit them. One respondent, representig a view often heard, said, 

There is no flexibilty for residents that requir acute car to remain in the home. 

In contrt, some felt that nursing servces were inappropriate for this level of car. 

One State is instituting a demonstration project that will enable residents who 

requi ongoing nursing car, such as catheter and colostomy car or insulin 

therapy, to live in board and car facilties. 

Resident level of car nees are rarly specifed in State definitions. A board and 

car facilty is usualy defmed based on the servces provided rather than the 

anticipated needs of the residents. Some State officials suggested that the 

defmition should include both the nees of the resident and the servces provided.

Limited attention is given to staff training. 

Accordig to State respondents, staf trainig is the second most frequently cited 

problem. Both State and provider respondents often mentioned the changing needs 

of residents as a reason traiing is essential. Accordig to one State respondent, 

the lack of control of sta tring is a "vuerable area." Many also noted that 

limited resoures and insufficient staff at the State level often constrain 

implementing existing trainig requirements. 

One-thd of State stada do not addrss traig. The Model Act provides for 

specifc areas of traig for both admnistrtors and staf and suggests that the 

operator have training before being issued a license (which the States curently 

require). It also suggests that if a facilty is found to be out of compliance, the 

operator and staf should be given traiing in the areas where violations exist. 

Of the two-thirds of State stadards which do addess trning, thee-quarers do 

not specify the tye or hour of trning reuired. Generally, traiing requirments 

ar specified as being "in-servce" or "on-the-job." Much of the trning is limited 

to first aid coures, genera orientation, fi safety and foo handlng. 

Although most States give limited attention to training, six States reported 

innovative training programs. These include medication aide training, special 
progrs for working with the mentally retaded, seminars in different aspects of 

care by experts in relevant fields, and special training prior to being issued a 

license. One State uses the money derived from licensing to hold traiing 

progrs. 

Alost al States (93 percent) addrss qualcations and requirments of the 

adnistrator and staf. However, the requirements for both are extrmely limited 

and were cited as a problem area by numerous respondents. In many cases, the 

operator is required to be at least 18 years of age, have a high school diploma and 

be of "goo mora character." A few States, however, are begining to require a 

bachelor s degree for the admnistrator and nurse s aide traiing for staff. Many 

say it is difficult to requir adequate qualfications for board and care staff since the 

pay is low and it is diffcult to recrit and keep employees. 

State standards do not usually adess unlicensed/acilites and complants. 

Seventy-four percent of State stadads do not mention unlicensed facilties so they 

do not include a penalty provision for failure to comply with licensing 

requirements. Some respondents volunteered faiur to addrss these homes as a 

problem with their standads. 

Only 51 percent of State stadads require a complaints proedur, although almost 

al States report having such a procedure in place. 

(The above two areas are discussed in more detail in the enforcement section of this report. 

Coordinaton rarely occurs. 

Accordig to State respondents, coordnation was the thd most frequently cited 

problem area. Although almost two-thds of State respondents felt coordination 

between State agencies was adequate, only one-third of providers agred. Some 

providers said duplication of effort often occurs, with several agencies doing the 

same thing, such as investigatig complaints. One provider said, "People 

comig in al the tie." Both State and provider respondents recommended the 

establishing coordnation units and strngthening communication. 

No State standads address coordation among responsible agencies, providers 

and consumers. The Model Act suggests a coordnating council, to include 

advocates, residents and providers, as a mechanism to assur coordination among 

the multiple State agencies responsible for regulating facilties and providing 

services to residents of these facilties. An analysis of State regulations conducted 

by Boston University in 1980 identified 77 agencies nationally that were 

monitorig board and care facilties. Our study revealed 72 agencies; 10 States had 
reuced their number of agencies and two States are combining two monitorig 

agencies into one. Five States have added agencies. 

A majority of States, providers and advocates felt coordination between States and 

the Federa government was lackig. Most stated that coordination did not exist. 

Most respondents advocate a common set of minimum standards for every State. 

Accordig to alost the-quarers (72 percent) of State respondents, a common set 

of miimum stadads should be federay mandated. Some felt that since some 

States were less active in board and car than others, minimum standards would 

crate grater uniformty in regulation and enforcement. Others mentioned that

mium stadads would alow for common expectations of safety and care in the 

boar and care industr. One respondent said that "every disabled and frail elderly 

person in this countr has a right to minimum standads, despite where they live. 

Numerous respondents, includig those in favor of minimum standads, said that 

were mium stadads to be developed, States should be given the flexibilty to 

adapt and add to the standads to meet their parcular needs. 

Twenty-eight percent of State respondents did not favor a mandatory set of

mium stadads for States. Most felt that States should be alowed to establish 

their own regulations to alow for regional and local differences. One argued that 

since most State stada have aleady been tred and found to work, only 

gudelies and suggestions concerng possible new topics and ideas should be 

provided. Some felt that mium stadards would only add another level of 

unnecessar governent buraucracy to the board and care industr; one stated 

that "people are monitored enough without someone else coming in." Another felt 

that minimum standads would not assure quality of care in these homes any more 

than State stadads would. 

Eighty percent of providers and advocates agreed that minimum standards should 

be mandated for every State for many of the same reasons given by State offcials. 

They mentioned that national standads might serve to professionalize the industr 

and provide helpful guidelines to operators when settig up homes. A number 

expressed concern that minimum standas might become maximum standads in 

that States might choose not to elaborate upon them. Minimum standards might 

thus "give permssion" to States to do only the minimum requird. 

The majority of all respondents also felt that common definitions should be used in 

every State. Many believed it would be an impottt prerequisite to the 

development of minimum stadads. 
................................................... ...

.................. ...................... ................................................... . . . . . . . . . . . . . . . . . . . . . . 

Respondents generay agree on key areas where miimum standas should be 

developed. These include basic safety and service areas and some aras not 

presently addressed, such as unlicensed facilties, trning and board and care plans 

(Figu II). However, the maner in which they are addressed vares from State to 

State. Supportg ths was the respondents ' frequently cited concern about faiure 

to adess cert key aras in greater depth and with more clarty. 

FIGURE II


THREE KEY AREAS NOT SUFFICIENTLY ADDRESSED ARE RECOMMENDED


FOR INCLUSION IN NATIONAL MINIMUM STANDARDS


Board and Care Plan	 Training 

109 	 109 81S..' . . . . ........................ Hi. 


89 ....................... .88". . . . . . . . . . . . . . . . 	 89 ......................


89.''''''''.'.''''''''''
 80.. ......................


79 ......................
 80.. ....
 811 ......................


ISO" ....
 ISO" ......................


411 .... 

S9 .... 

29 .... 20.. ....


19 ....	 19 .... 

Standards State Providerl Standars State Providerl 

Recommendations Advocte Recommendations Advocate 

Recmmendations Recommendations 

Unlicensed Facilities 

109 

8I ........................................ ' 88""". 

89 ....................................... 

70.. .......................................


89 .......................................


1S9.""'.'."'"''''''''


49 ......................


29 ....


19 ....


Standars State Providerl 

Recommendations Advocate 

Recommendations 

. Percentage of current State standards which address each area. 
Model Act discusses key areas not adressed in State standards. 

The Model Act provides alternatives to States in those areas which respondents 

identify as being a problem with their standards, such as level of car, training, 

uncensed facilties and coordination. 

A majority of State respondents (51 percent) were unawar of the Model Act. A 

few respondents expressed keen interest when informed of it and asked where to 

obta a copy. 

Of those who heard of the Model Act, 35 percent used portons of it as a guide 

when preparg or updatig their individual State standads; 24 percent continue to 

use it as a reference tool. 

WHILE STATES CONDUCT BASIC ENFORCEMENT ACTIVITIES, SERIOUS 

WEAKNESSES EXIST. 

Almost al State standas address inspections and corrctive action plans and States are 

implementing these standads. However, problems exist in enforcement, both with unlicensed 

facilties and facilties found out of compliance. 

Almost all State standards adress inspections (94 percent) and corrective action plans (82

percent). 

As par of their licensing process, thee-quarrs of States inspect al homes at least 

once a year, some even more frquently. The frquency is often determned by the 

avaiabilty of sta and resources. 

A majority of States report at least some unanounced inspections. In hal these 

States all inspections are unannounced, whie in others they are conducted only 

when deemed necessar. However, just over hal requir that licensing inspections 

be unannounced. Many ar doing more than their stadards mandate, thus 

indicating that they perceive unanounced inspections as an effective enforcement 

tool. Most States (80 percent) also use spot checks as par of their enforcement 

activity. An analysis showed that unannounced inspections were conducted by 

States that have both strngths and weakesses in enforcement. 

Alost al States with standads for corrective action plans actually requird such 

plans for the majority of their licensed homes in 1988. Many reported that few 

homes were ever without any deficiency. In most cases, the operators came into 

compliance after successfully implementing the plan. The violations ranged from 

the minimal, such as improperly storing a head of lettuce or missing a light bulb, 

to the more serious, such as lacking a sprier system. However, the deficiencies 
noted in most of the corrective action plans were primarly non-life-thatening. In 

a few States, deficiencies are grded for their degree of seriousness, thus 

faciltating close monitorig of homes with more significant problems. 

Almost all States report havig a complaints proedur in effect, although State 

stadads do not always address the requirement for such a procedure. In most 

cases the licensing agency itself receives complaints; only one-quarer of States 

report that the Ombudsman also receives them. Most States conduct onsite 

investigations in response to complaits; they investigate the more serious 

allegations alost imediately. As par of their proedures for resolving 

complaints, almost one-hal (47 percent) report having a resident hotline. The 

range, from poor foo and an unsanitar physical tyes of complaits cover a wide 


envinment to inadequate care and abuse or neglect. A number of providers 

asserted that their State s complaint procedure was always biased in favor of the 

consumer and offered the operators no recourse for their own grevances against 

residents. 

Enforcement activity is limited. 

Respondents cited th major factors to explain why constrints to enforcement 

exist. Firt, lack of State resources inhibit the States' abilty to actively enforce 

their curnt stadads. Second, no statutory authority exists in many States to 

impose both intermedate and severe sanctions. Finally, the lack of alternative 

placement for boar and car residents makes it difficult to close homes and 

penalize unlcensed homes even when those sanctions ar avaiable. 

While most States (86 percent) are able to revoke or deny licenses, under half 

actualy did so in 1988. The average number of revocations or denials was 20. 

The problem was seen as not being with the avaiabilty of the sanction but with its 

use; one provider voiced a common concern that "States are reluctant to use what is 

available. 

Fort percent of States imposed no penalties or sanctions on board and car homes 

in 1988. Of those which did, 15 imposed fines, 7 issued provisional licenses, 4 

issued citations, 4 limited or suspended admssion to homes, 2 used receiverships, 

1 initiated crmial charges against a provider and 1 cancelled a service contract. 

Closing homes and removing residents, the most severe penalty, was reported by 

only 11 States. One of these States with a separate enforcement unit reported 

closing 53 homes. However, the remaining 10 States closed from one to eight. 

number of respondents mentioned that they were often complacent in their 

enforcement activities and would wait for a situation to significantly deteriorate 

before takng action. 
.................................................................... 

... .............................. ...... . ...... . .................................................................................... ................................................................................ . ... ..... .... .... ... ........ .. .... .... .................................................. ... . .... . ......................, ..... . ....... .... ......... .... .......... ..

Enforcement options are limited. 

Slightly more than one-third of State standards alow for the intermediate sanction 

of civil monetar penalties, whie less than one-third prohibit admtting new 

residents to homes under citation. Just over one-thd of State standads allow for 

the more severe sanction of closing homes and removing residents (Figue III). 

Most States which do allow civil moneta penalties consider them very 

instrmental in minimzig substadard facilties and essential to the success of 

their enforcement efforts. Fines usualy go into the genera treasur, although 

few States use them for board and car activities. 

FIGURE III


ENFORCEMENT OPTIONS ARE LIMITED


100 

.. GO,' 
 ................ 37


1 O 

Civil Closing Homes Restrictng Addresing 

Monetar & Removing Admission of Unlicensed 

Penalties Residents New Residents Facilities 

Many respondents stated that the legal process required to revoke licenses was 

often lengty and cumbersome. Thus, the absence of intermediate sanctions such 

as civil moneta penalties was seen as restrcting the enforcement capabilties of 

some States. Some respondents believed that prohibiting the admssion of new 

residents into homes while the legal proess is occurng would prevent placing 

more individuals into homes where conditions ar questionable. Only 17 percent 

of State stadads requir a criminal check for providers as par of their licensing 

procedure; even fewer require such a check for staff members. 
Over th-quarers of State respondents felt that constraints limited effective 

enforcement. Most frequently cited were limited staf, insufficient financial 

resources, a lengty legal process, and the absence of legal authority for 

intermediate sanctions. Since in most States board and care is not a separate 

budget item, it is not possible to determne the level of resources devoted to 

enforcement Two States report having separte enforcement units. Drastic 

measurs ar rarely used because inadequate funds frequently preclude expensive 

actions. A number of respondents mentioned that enforcement efforts were often 

hampered by political considerations. For example, local judges and law 

enforcement offcers might be reluctat to act against neighborhoo providers. 

Respondents did not agr on the most effective enforcement techniques. 

Recommendations included imposing civi monetar penalties, increasing State 

resources, improvig the strength of legal options and categorizing diferent levels 

of violations. Some see fmes as a deterrnt to non-compliance; others see them as 

a means of tang funds away frm where they ar most needed-to improve the 

home. Some provider responses reflect this dilemm. One stated, "it hurt when 

the pocketbook is hit" Others complained that fines were too excessive for minor 

problems which caused no dict har to the resident. When a license is revoked 

in some States, the home is allowed to continue operating as a boarding home and 

the residents may remai in the facilty. In other States, the home is closed and the 

residents always removed to other licensed locations. However, the lack of 

alternative facilties for placement is a problem as there is sometimes no other 

avaiable licensed home for residents to move to. Respondents mention residents 

rights as a consideration: residents may wish to stay in the home, even if it is 

determned to be unsafe and becomes unlicensed. 

Unlicensed homes are a key enforcement concern. 

State efforts to deal with unlicensed facilties are restrcted by lack of resources and 

diculty in locating the homes. Most State offcials felt that their resources were 

not sufficient to deal with unlicensed as well as licensed homes. Respondents also 

had difficulty in estimating the number of unlicensed facilties in their States which 

should be licensed accordig to their definition of a board and car home. 

Ambivalence exists among respondents as to whether and how unlicensed facilties 

should be penalzed. Some States feel they should be immediately penalized while 

others feel the operators of these homes should first be given the opportnity to 

acquir a license. However, a majority of providers and advocates favored 

penalizing these operators. Some States ar reluctant to take action against 

unlicensed facilties because of a lack of alternative placement for the residents in 

these homes. 
Avaiable SSA tapes are seldom used and ar not found useful. Only 41 percent of 

State respondents knew of the tapes, and very few (17 percent) reported using them 

to locate unlicensed facilties. Respondents generally felt that the tapes were of 

lited use and did not wart additional allocation of staff and resources. 

An analysis of existig enforcement techniques and how they are implemented 

showed no diect corrlation between the enforcement technique and the presence 

or absence of unlcensed facilties. 

Concerns were expressed about the adequacy of enforcement. 

Two-thirds of providers and advocates felt that some problem with enforcement 

existed in their State. The majority felt enforcement was slow, inadequate, 

inconsistent and ignored. One provider, expressing a prevaiing view, said he 

would "like to see more emphasis on education and less on mechanical 

enforcement of stadads--ducation should be used in addition to fines." A 

number felt their State was not strgent enough with unlicensed facilties and that 

operators of these facilties should always be fmed. Some providers and advocates 

complaied that the lengty proess for penalizing providers could potentially put 

residents at risk. Most agrd, neverteless, that such a process was essential. 

Half of the providers and advocates felt that the inspection process does not 

adequately ensure that standads are maitaed. They often caled it a paper 

proess in which evaluation was limited to checking off items on a list. A few 

State respondents mentioned a recent requirement for a resident interview during 

the inspection. However, one provider said that in practice this means that 

residents are asked over a loudspeaker to come and speak to the inspector if they 

want to. Many providers and advocates voiced concern about the inconsistency of 

how different inspectors interpreted regulations. State respondents also mentioned 

this as being a problem when inspections were delegated to county authorities. 

Close to hal of the State respondents felt that their States assign board and care a 

low priority in tenns of overal health care. An even greater number of providers 

and advocates (two-thirds) agred. Most argued that other progrs in the 

long-tenn care continuum, such as nursing homes, were regarded as more 

important As a result, resources allocated were not always adequate. 

A majority of State respondents felt the Keys Amendment could not be enforced. 

Only 17 percent clai to have reported substandard facilties to the Federal 

government as the Keys Amendment requires. Most felt that the penalty clause 

which reduces the benefits of SSI recipients was unenforceable. Some suggestions 

included: "Junk it and sta over again, penalize the owners-not the residents, 
and "(requi) mandatory registrtion of SSI recipients residing in board and care 

facilties. " 

THE DHHS CURRENTLY PLAYS A LIMITED ROLE IN BOARD AND CARE AND 

LITTLE COORDINATION EXISTS. 

Activities afectig boar and care facilties and residents ar limted within llS in OHDS, 

SSA, AoA NI and HCFA, with litte coordation among these agencies. 

Board and care activites are limited within HHS components. 

Within OHDS only one person is responsible for managing the Keys Amendment 

and collectig the requied inonnation from the States. A yearly OHDS 

memorandum remids States that they must certy annually that they comply with 

the Keys Amendment and includes inonnation on the Model Act and SSNSDX 

tapes. Approximtely 30 States responded in 1988 with brief letters saying, in 

effect: "Ths is to inonn you that (State s name) is in compliance with the Keys 

Amendment. "


No SSA procedurs are in place to implement the penalty provision of the Keys 

Amendment. While the Keys Amendment has a penalty provision which reduces a 

recipient s SSI payments if he or she resides in a substadard facilty, the 

prevailing opinion among people in the field is that deductig money from the SSI 

recipient s payment does not assure that conditions wil improve in the facilty. 

Due to lack of resources, the Admnistrtion on Developmental Disabilties (ADD) 

does not systematically monitor al developmentay disabled individuals who 

reside in board and car homes. However, ADD does have a protection and 

advocacy program for the developmentay disabled which may extend in pan to 

residents of board and care homes. 

Although board and car is now included in the AoA Ombudsman Program, no 

additional funds have been appropriated for this addtional responsibility. The 

extent to which local and State Ombudsmen become involved in board and care 

vares from State to State. The AoA has been diected to study the impact of the 

Ombudsman Program on residents of boar and car facilities, to develop 

recommendations for expanding and improving Ombudsman servces, and to study 

the effectiveness of recruiting, supervsing and retaiing volunteer Ombudsmen. 

This report wil be available by December 31 , 1989. 

The major pan of the NI protection and advocacy program is to advocate for 

residents of public 24-hour care facilties. In 1988 only 6 percent of the program 
clients were in facilties outside of public institutions. Some of these were board 

and care homes. 

Few States have taen advantage of the available SSA State data exchange tapes 

and many were not even aware that such tapes existed. A number of respondents 

requested informtion on how to obta these tapes after learng about them. 

As of August 1989, HCFA had approved 125 waiver programs in 47 States. 

HCFA is unable to identify how many of these waivers include servces for board 

and care residents. However, they do clai to ensur that each progr which 

indicates that it serves such recipients makes explicit provision for the welfar of 

these clients. HCFA also reports to have investigated and taken necessar action 

where there has been any indication brought to their attention that health and 

welfare has been compromised. 

On the positive side The Assistat Secretar for Planing and Evaluation (ASPE) 

is curently fudig a study entitled "Analysis and Comparson of State Board and 

Car Reguations and Their Effect on the Qualty of Care in Board and Care 

Homes." Ths study wi attempt to determne the extent to which care in 

unlicensed homes difers from the care provided in licensed homes. They also 

anticipate doing a boar and care census in the futu. 

Little coordination exits within HHS among the agencies involved with board and care. 

There appears to be lited contact between the varous agencies within HHS 

involved with boar and car; each unit fuctions independently and has little 

awareness of relevant activities occurg elsewhere in the Deparent. 

While the Keys Amendment specifies that the State must notify the SSA of any 

violations in board and car homes, it is not requird that OHDS be so notied, and 

the SSA does not share any such information with OHDS. 

No unit is designated within HHS for coordnating the activities of different 

agencies and disseminating information between them. Such a unit previously 

existed in the Deparent but has since been disbanded. 

Some coordiation does exist, however, between the different agencies involved 

with protection and advocacy programs for the mentally il, developmentally 

disabled and aged residig in board and car homes. These agencies will be 

meeting regularly to inform each other of their activities and to coordinate their 

efforts. 
RECOMMENDATIONS 

States should 

Re-evaluate their board and care standads (using the Model Act as a reference) to 

assure they include and adequately address 

level of car,


traing,


coordination, and


unlcensed facilties.


Improve their abilty to deal with unlcensed facilties such as 

tagetig ways to identify them and


providig incentives for facilties to become licensed.


Use such sanctions as 

civi moneta penalties,


restrctions on new admssions, and


closing of homes.


Assure that existing proedurs for resolvig complaints are sufficiently publicized 

so that complaints ar brought to the attention of the proper authorities. 

To support States' efforts in implementing the above recommendations, OHDS should 

designate a unit for board and care which will 

Disseminate information on such matters as 

operational effciencies


effective enforcement techniques 

research and


States ' best practices.


Promote more effective use of the Model Act 
Provide technical assistace to States, parcularly to support the concerns relating 

to the stadads and enforcement highlighted in this report. This might include 

convening a workgroup of States and other pares to discuss developing minimum 

stadads. 

Coordiate deparental activities relative to board and care. 

COMMENTS 

Comments of the drt report were received from HCFA, ASPE, AOA, PHS, SSA and OHDS 

and were generay supportve of our fidigs and recommendations. While support was 

expressed for our recommendation that there be a Deparenta coordinating unit, the 

question of fundig was raised by OHDS. (See Appendix B). We continue to believe the 

problems addrssed in this report are suffciently importt to wart the relatively small 

expenditu necessar to support a coordinating unit. 
APPENDIX A 

BIBLIOGRAPHY 

American Association of Retied Persons (AARP). Selected papers from the conference on 

board and car. December, 1978. 

Boston University, School of Social Work. Preliminary Analysis of Title XX Plans and State

Regulations for 574 Residential Facilities in 50 States and the District of Columbia.

Februar, 1980.


Commssion on Calorna State Governent Organization and Economy. Community 

Residential Care in California: Community Care As A Long Term Care Service. December, 

1983. 

Commssion on Calorn State Governent Organization and Economy. The Little Hoover 

Commission s Report on Community Residential Care For the Elderly. Januar, 1989 

General Accounting Offce (GAO). Board and Care: Insuffcient Assurances that Residents

Needs are Identified and Met. Februar, 1989


Institute for Health and Agig. Residential Care Facilities: Understanding Their Role and 

Improving Their Effectiveness. 1988. 

Offce of Inspector General (OIG), Deparnt of Health and Human Servces (DHHS). 

Board and Care Homes: A Stu of Federal and State Actions to Safeguard the Health and 

Safety of Board and Care Residents. Apri, 1982.

Service Delivery Assessment, Deparent of Health, Education and Welfare. Boarding 

Homes Assessment. June, 1979. 

Subcommttee on Health and Long-term Car, Report to the House Select Commttee on 

Agig. Board and Care Homes in America: A National Tragedy. Marh, 1989. 

The American Bar Association, Commssion on Legal Problems of The Elderly and 

Commssion on the Mentaly Disabled. 
 A Model Act Regulating Board and Care Homes

Guidelinesfor States. October, 1982.

...

APPENDIX B


COMMENTS ON THE DRAFT REPORT 

Comments received from HCFA, ASPE, AoA, PHS, SSA and OHDS were generally 

supportve of our fidigs and recommendations. Suggestions for changes in the wording and 

clarfications in the text have for the most par been incorporated into the fmal report. 

Among the comments that were supportve of our recommendation that a Deparental 

coordiatig unit for board and care be designated were the following: The Assistant 

Secretar for Health noted that: ''Tugh technical assistace and dissemiation activities, 

ths unit would have the potential to greatly improve the qualty of care and lie of individuals 

" Simarly, the Assistat Secta for Human Development Servces stated "that the 

functions might be tiely, appropriate, and supportve of State actions given the real advances 

in State performce over the past severa year and the Federal government s new federasm 

relationship with States." The OHDS adde that "such a unit might help meet Congrssional 

concern that the Deparent addss identied abuses. 

The ASPE specifcaly recommended that OHDS be designated as the Deparenta 

coordiating unt for boar and care activities. We concur and have moded our report by 

specifically addressing our reommendation to OHDS. 

While as noted above OHDS expressed concerns about inadequate CUIent stang and 

fundig, OHDS supports the idea of a coordiatig unit. We recognize that a coordiatig 

unit would requir realocation of very scarce resources. However, in view of the importance 

of this area we feel that such reallocation is necessar. 

In addition, OHDS note that the Deparent fuds very litte researh, has little information 

to dissemiate and possesses no parcular expertse to offer technical assistace to the States. 

We might offer, in response, that ths coordatig unit would be expected to disseminate not 

only the Deparent s researh but also research conducted by other soures; would gather 

and shar ideas and best practices frm the States; and would hopefully utiize the knowledge 

of expert in the field in offering technical assistace. 

The OHDS had some question about the substace of the proposed coordination role. Our 

vision is that ths unit would be the focal point for board and car activities within the 

Deparent. In doing so, it would serve as a refeITal source for outside requests, periodcaly 

evaluate the effectiveness of Deparenta progrs and make recommendations to improve 

them. 

In conclusion, we strongly encourage having a Deparental coordinating unit as essential to 

supportg and encouraging the States' efforts to assure the safety and well- being of the board 

and car population. We believe OHDS should be given this role. 

The actual comments received ar on the following pages. 
&. 

Office of


DEPARTME T OF HEALTH Ht:MA SER\"ICES	 Human Development Services 

Assistant Secretary 

Washington DC 20201 

FEB I 199 

::0 :	 Richard P. Kusserow 

Inspector General 

FROM: Assistant Secretary 

for Human Development Services 

SUBJ ECT :	 Office of Inspector General Draft Report: - Bogrd and

Care, . OAI- 89-l860 

Thank you for the opportunity to review and comment on the 

draft Office of Inspector General (OIG) report on - Board and 

Care. Over ll, the report is timely, and we believe its 

findings will inform future discussion on this issue. It 

contains information that will be helpful to this office in 

carrying out its responsibilities under the Keys Amendment. 

addi tion, we appreciate the briefing and the addi tional views 

and information provided by OIG staff on January 4. However, 

we do have serious concerns regarding the recommendation that 

the Secretary designate a unit for board and care in the 

Department. We also have some general suggestions for

strengthening the report. 

Addi tional contextual information should be added to the 

report 

We suggest that the report incl ude the posi t i 

observations and other excellent points made by OIG staff 

at the January 4 briefing, e. g., that care being provided 

is much better than the pUblic s perception of such care 

and that states are trying and, for the most part, are 

succeeding in carrying out their responsibili ties in this 

area, particularly given the changing needs of the board

and care population. 

Also, as additional background, we suggest that a brief 

description of the range and types of homes and facilities 

included under the category of board and care be added, as 

well as a brief description of the various types of persons 

being served in these homes. We believe it is particularly 

important to emphasize that there is no common definition 

or description of a board and care facility and that board 

wide range of demographic


character istics and a wide range of needs.


and care residents have 

page 2 - Richard P. Kusserow


Recommendations for state action


Generally, we support the four recommendations for State


action. We believe OIG has identified areas that would


benefit board and care residents and allow for better State


oversight and enforcement.


Recommendation that the Secretary should designate a uni t


in the Department for board and care


out We agree that the functions recommended to be carried

by a designated board and care uni t might be timely, real appropriate, and supportive of state actions given the 

advances in State performance over the past several years 

and the Federal government' s new federalism relationship 

wi th states. Also, such a uni t might help meet 

congressional concern that the Department address identified abuses. However, it is unclear how the specific 

recommendations for Federal research, technical assistance, 

and other acti vi ties could be implemented gi ven the cur rent 

lack of staff and funding for such activities in the


Department. Our specific comments are as follows: 

a. The report stated that one function of the unit would be


to disseminate information on matters such as


operational efficiencies, effective enforcement
 techniques, research, and States ' best practices. 

fact, the Department funds very little research and has 

almost no information to disseminate on the other objectives. 

b. A second function of the board and care uni t would be to 

promote more effective use of the Model Act. Although 

the report used the Model Act exclusively against which 

to measure state standards, there are other model 

standards and regulations which could or should be

considered by States, e. g., model regulations developed 

by Boston Uni versi ty and a Model Act on Zoning for board 

and care residences developed by the Administration on 

Developmental Disabilities. 

c. A thi rd function of the board and care unit" would be 

As noted provide technical assistance to States.


earlier, the Department has no particular expertise in


this area and the Office of Human Development Services


(HDS), for example, would need additional staff and


fund ing to car ry out such acti vi ties. 
Page 3 - Richard P. Kusserow


c. The fourth function of the board and care uni t would be 

to coordinate Departmental board and care acti vi ties. 

In reali ty, however, the Department carries out few


meaningful activities in this area. Three agenci s make 

grants to States to carry out advocacy and ombudsman 

services on behalf of board and care residents and others. The Social Security Administration is rarely 

involved as states chose to deal with facilities that do 

not meet standards by enforcement methods other than
 reduction of an individual' s Supplemental Securi 

Income (SSI) payment. The Health Care Financing 

Administration, by statute, must verify that Keys 

Amendment and other standards are met in order to grant 

state 8 communi ty based wai verso We administer 

compliance with Section 16l6(e) of the Social Security Act. The Office of the Assistant Secretary for Planning 

and Evaluation has been involved in various long term 

care research and evaluation efforts and recently has 

funded a project to further study board and care
 issues. It is unclear what the substance of the


coordination is or should be.


Finally, we agree it is important for the Department to


respond to congressional concern on the board and care


issue. As opposed to recommendations that would require


additional staff and funding resources, we suggest that


the OIG consider exi sting mechanisms, such as cur rent 

Departmental long term care and health promotion work


groups, as a way to carry out sOme of these functions. 

Other points of clarification


In addition to the marked-up copy (attached), we have the


follo ing suggestions:


a. Clarify that the report uses the term 8 unlicensed I s standard for refer to homes that fall under a state 


licensure, not those that are exempt. (See page' 13. 

b. clarify that, while respondents recommended 8 national 

minimum standards, 8 they also recommended State 

flexibility in meeting or developing such standards. 

(See page 8. 

8 A 

c. It is stated tha
 majori ty felt the Keys Amendment

could not be enforced. 
8 It would be preferable to say

that standards developed under the Keys Amendment could
 not be enforced. (See page ii.

Page 4 - Richard P. Kusserow


d. It is stated that . state regulations require that all 

board and care homes be licensed or certified. This is 

ncor rect. (See page 1. 

e. Clarify that although the Keys Amendment also included 

statutory amendments to the Social Security and SSI 

programs, historical usage and this report refer to 

Section l6l6(e) of the Social Security Act as the Keys

Amendment. 

f. It is stated that . Fire and safety guidelines were also


developed by an HHS interagency task force and shared 

wi th the States. This needs further explanation. The 

fire and safety guidelines were the result of a ten year 

effort. A . Fire-Safety Evaluation System for Board and 

Care Homes . was incorporated in the Life Safety Code by 

the National Fire Protection Association. It represents 

a major development in the technology of providing board 

and care services. Cur rently, there is a large 

evaluation being conducted of this system which is being 

jointly funded by six Federal agencies. (See page 3. 

We believe the marginal notes and edits on the attached copy of 

the draft report are pelf explanatory. If you have any 

questions, please call Janet Hartnett on 245-70 7. 

Attachment 
) .\ :... .. . . .:,

VIC" //Ib ..,l DEPARTMENT OF HEALTH 8L HUMAN SERVICES Office of the Secretary /I ;.,z; 

It '1 ; . Washington, D.C. 20201 

E l:;' ­

...., DIG 


AIG. rgSD 0. I' ". v "


JlMORAUK AIGAIG. 

Richard P. Kusserow ADM 

Inspector General OGC/IG 

DATE SENT FROM Arnold R. To ns I I EX SEC 

Acting Assi tary for Planning and Evaluation 

SUBJECT: OIG Draft Report: "Board and Care" , OAI-02-89-01860 

We have reviewed the above report and conditionally concur based 

on consideration of the following observations: 

Al though ASPE worked closely with the OIG during this study, 

no mention is made of the board and care initiatives 

currently underway in ASPE. The report should cite the ASPE 

board and care initiatives which include the current quality 

of care study and the design work for a board and care

census. These activities demonstrate that the Department is 

more than just a passive observer of board and care issues. 

The report points out, and rightly so, that very little


coordination exists within HHS among the agencies involved


wi th board and care. However, as a result of the ASPE 

initiatives cited above, information sharing and 

coordination among agencies has improved. 

The tone of the report implies that all Unlicensed board and 

care homes are operating outside of the law and that if 

licensing was required of them, the system would somehow be 

much better. First, it should be made clear that not all 

unlicensed homes are operating illegally (some States have

very limited licensing requirements). Second, although the 

quality of care provided in some unlicensed homes is


suspect, there are many unlicensed homes that provide care 

equal too or better than that found in licensed homes. In 

some communities, unlicensed homes are an important part of 

the community-based care system. The issue is to determine 

the extent to which care in unlicensed homes differs from 

the care provided in licensed homes. The ASPE quality study 

will attempt to address this issue. 

References to the Keys Amendment of the Social Security Act 

should be clarified to explain that reductions to an S5I

recipient I s payment can only be applied to that portion of 

the payment that is a State supplement and only by the 

amount of the supplement that is used for medical or 

remedial care. This adds to the intractable nature of 

employing the penalty provision of Keys. 
Page 2 - Richard P. Kusserow


Several references are made to the' SDX tapes and the 

feasibility of having states use them to locate unlicensed homes. These references need to be placed in a context that 

informs the casual reader of what the SDX tapes are, what 

their potential is for addressing the unlicensed homes issue 

and what problems are associated with use of the tapes. 

Again, the ASPE quality of care study will test the 

feasibility of using the tapes to locate unlicensed homes. 

One of the maj or recommendations of the study is that the


Secretary designate a unit .for board and care. We concur 

with this recommendation. The next step, if others also


concur, is to choose the location of such a unit. It occurs 

to us that SSA' s invol vement is essentially as a check


writing agency, HCFA' s interest is centered around the 2176


Waivers, and ASPE is not a program office. On the other


hand, OHDS includes AoA, which has responsibility for the


ombudsman program and the aged constituency, which makes up


the bulk of board and care residents, and ADD which


administers programs for the developmentally disabled.


Hence, our initial reaction is that the unit be located in


OHDS. We would be interested in exploring this issue
 furter. 

Historv , it is 

implied that all state regulations require the licensing of board and care homes. This is not true. 

On page 1, in the third paragraph under 


On page 2, under HHS Role The first sentence should be 

modified by adding "or their residents" to the end of the 

sentence. 

On page 15, the ADD means the Administration 2R


Developmental Disabilities.

.. . .. . //.. 

: ... j) :!.. .. ;.?\..

'b -'7L 

YmO,k./,t4 bel-­

/ OficetO th Seetary


(1­

DEPARTMENT OF HEALTH II HUMAN SERVICES 

Wasington. D.C. 20201 

Administration on Aging	 8-. "'" I.... l ;. vL' 

1 . ;

. ,. L.. 


1990 JAN I 0 


JAN	 1r 2: 25 8 19 


TO:	 Richard P. Kusserow


Inspector Gener 


FROM: Acting Commissioner on Aging 

Board 

SUBJECT:	 Comments on Draft Inspection Report Entitled " 

and Care 

8, 198 memorandum to Mary
 This is in response to your December Buman Development Services,
 Sheila Gall. Assistant Secretary for draft inspection report
 requesting review and comment on the
 entitled "Board and Care. 

We have reviewed 
 he draft report and concur with its findings


and recommendations. We suggest only the following changes and


additions: 

p. ii , 7th line from the bottom , should be changed to 

read Ombudsman Program w ch advocates the rights 

institutionalized elderly including.... (The of the 


Older Amer cans Act requires the State Office of the
 or on


ombudsman to investigate complaints made by
 facilities, not
 behalf of residents of long term care 


all elderly.


page 2, line 5 under BBS Role , should be changed to


administered by
 read NIMH ) have programs 	 (Neither, tio which.... State agencies or organiz


ADD, AoA, nor NIMH dIrectly operate their respective
 protectio and advocacy programs. 

funded. by the 

The report should mention a study (ASPE) Assistant Secretary for Planning and Evaluation entitled "Analysis and Comparison of State Board and 

Care Regulations and Their Effect on the Quality of " which is currently
 Care in Board and Care Bomes.


being conduct d by Research Tr iangle Institute. This 

is a major Department initiative involving board and 

care regulation. ASPE should be mentioned on page 15


DIG


AIG­


AIG-AI


AIG­


ADM


. OGCIIG 
Page 2 - Richard P. Kusserow


and elsewhere, and reference to the study should be 

made at appropriate places in the report. 

on the draft We appreciate the opportunity to review and comment


report. 
.

Health Ca'


DEPART;\E T OF HEALTH &. Ht..\\AS SERVICES FinanCing Ac"" " , 

"."410 Memorandum

Date 

From ::S 2 :S i i

Acting Admini


Subject OIG Draft Report - Board and Care, OAI-02-89-01860 

The Inspector General


Office of the Secretary


Thank you for the opportunity to review your draft report


which assesses existing State board and care regulations and


enforcement activities.


The report states that HCFA is unable to identify how many 

of the approved waiver programs include services for board and 

care residents. While this is true, HCFA does ensure that each 

program which indicates that it serves such recipients makes 

explicit provision for the welfare of these clients. HCFA has 

also investigated and taken necessary action where there has 

been any indication that health and welfare has been 

compromised. We want to ensure that OIG is aware of the 

following HCFA initiatives that help accomplish these aims. 

Since the inception of the waiver program in 1981, 

States have been required to provide assurances that


the health and welfare of clients will be protected
 during their participation in the program. The States 

are also required to back up these assurances with 

copies of written provider standards and anual reports 

on the satisfaction of these requirements. 

In our 1985 final regulations, we specifically required


that states providing waiver services to individuals


who were residents of board and care facilities ensure


compliance with section 1616(e) of the Social Security


Act (Keys Amendment) and supply a copy of the required 

standards to us for review. In addition, our 

regulations authorized the withholding of Federal


matching funds for wai r services during periods of


noncompliance with the Keys Amendment or other he l th 

and safety standards. 
Page 2 - The Inspector General


HCPA has conducted intensive regional office investigations 

of several programs in which allegations were made that 

recipient health and welfare were being compromised while residential waiver providers. In West Virginia, HCFA used 

the results of this inquiry to deny the state' s application 

for renewal of its waiver program. In Pennsylvania and 

Oregon, corrective action was promptly initiated by the

states. 

I would also note that on page 2 of the report, "nurs ing facili ty. applies only to Medicaid, not Medicare. 

Than you for the opportunity to review the above draft

report. 
:::::: ,...

.....: ,... , 

aAW	 (,1\ 

N tJ.. 


DEPARTMENT OF HEALTH Sa HUMAN SERVICES	 Public Health Service 7z/7 Memorandum 

Date JA 2 2 199 

From	 Assistant Secretary for Health 

and Acting Surgeon General 

Subject	 OIG Analysis and Inspections Draft Report " Board and Care 

OAI -0 2-89-01860 

Inspector General, OS


We are in agreement with the overall content of the subject


OIG draft report and concur with the report s recommendation


that the Secretary, RUS, should designate a board and care


unit to support the States ' efforts in implementing the


recommended improvements. Through technical assistance and


dissemination activities, this unit would have the potential


uality of care and life of individuals


residing at boarding homes.


to greatly improve the 


Jame . Mason, M. D., Dr. 

DIG 

AIG-A 

AlG-AI "':1 

AIG-l 

ADM 

OGCIIG 

EX SEC 


DATE SENT 
. 

&. (:) ..., ., .:

U1b uV ')d

UUJART.'\UNT 01. HEALTH 	 "?I HlIMAN SERVICES 
 Social Security Administration

4-'	 Refer to Memorandum 

Date: 

From: 

Subject:	 ff ce of Inspector General Draft Report, " Board and Care 

OA -02-89-01860) --INFORMTION 

To: Mr. Richard P. 	 usserow 

Inspector General


If we can be of
 Attached is our response to the draft report.


further assistance, please let us know.


Attachment: 

Tab I - SSA response


IG v =
 PDIG 

DIG-AS =- V 

DIG-EI 


DIG-OI 


AIG.	 r''l . c-J ' OG/IG 

NT 
How to use these separators 

Look for your reference letter. The far left column designated "TAB" will indicate 

proper tab position for that number or letter. Cut off and discard all tabs except the one 

you wish to retain. Example: Position number " 10" would be found behind the fourth 

tab. Position letter "C" would be found behind the third tab. 

TAB (CHOOSE YOUR TAB) 

FIRST


SECOND


THIRD


FOURTH


FIFTH


SIXTH


r-­

SEVENTH 

TAB (CHOOSE YOUR TAB) 

FI RST 98 91 84 77 70 63 56 49 42 35 28 21 

SECOND 99 92 85 78 71 64 57 50 43 36 29 22 15 

THIRD 100 93 86 79 72 65 58 51 44 37 30 23 

FOURTH 94 87 80 73 66 59 52 45 38 31 24 17 

FIFTH 95 88 81 74 67 60 53 46 39 32 25 18 11 

SIXTH 96 89 82 75 68 61 54 47 40 33 26 19 12 

SEVENTH 97 90 83 76 69 62 55 48 41 34 27 20 13 

TABBED SEPARATOR SHEET 

Form SSA-69 (10- 791 
COMMENTS OF THE SOCIAL SECURITY ADMINISTRATION ON THE OFFICE OF 

INSPECTOR GENERAL DRAFT REPORT, " BOARD AND CARE" OAI-02-8901860 

In this inspection, the Office of Inspector General (OIG) 

assessed existing State board and care regulations and 

enforcement activities. The inspectors found serious weaknesses 

in existing State standards and enforcement practices and found 

support for the establishment of national minimum standards. 

They also found that the Department of Health and Human Services


plays a limited role in board and care.

OIG' s recommendations were directed to the States and to the Secretary. Among those for the States were: that States 

reevaluate their board and care standards, and improve their 

ability to identify and deal with unlicensed facilities. The 

inspectors recommended that the Secretary should designate a 

uni t for board and care which will disseminate information and 

provide technical assistance. to .States, promote more effective 

use of the Model Act for Regulating Board and Care Homes and 

are. coordinate Departmenta1 activities relative to board and 


Al though none of OIG' s recommendations are directed toward the 

Social Security Admnistration (SSA), we appreciate the 

opportunity to revie the report. 

Technical Comments


We have the following general comments to offer concerning


certain sections of the report dealing with Social Security:


First, on Page 15 of th report OIG notes that " No SSA


procedures are in place to implement the Keys Amendment"


This statement is inaccurate since procedures have been


he Keys Amendment and may be found 

in our Program Operations Manual System, GN 00502. 120. These 

procedures provide that substandard facilities be reported


to SSA' s Regional Offices. The Regional Offices are


responsible for disseminating the lists of substandard


facilities to SSA field offices to be screened as part of the 

representative payee selection process to ensure benefits are 

not inappropriately directed to these facilities. 

promulgated to implement 


We assume that the statement in the report that SSA has no


procedures to implement the Keys Amendment is related to the


lack of SSA procedures to implement the penalty provision of


the Keys Amendment, contained in section 1616 (e) (4) of the


Social Security Act. This is true, primarily because the


penal ty provision is basically inoperable because of a flaw


in its construction. The law states that when a Supplemental


Security Income (SSI) recipient resides in a substandard


facility the individual' s title XVI payments should be

reduced by an amount equal to the amount of any State 

supplementary payment or other State or local payment which 

is made for or on account of any medical or remedial care 

provided by the facility. States do not include money for 

medical. or remedial care in their supplementary payments or, 

as we understand it, in other payments. In addition, board 

and care homes ordinarily are not involved in the provision 

of the type of care specified in section 1616 (e) (4). Thus, 

it seems fair to say that 
 it is virtually impossible to


implement this sanction. 

Furthermore, the provision is not workable because it hurts 

the recipient directly and the operator only indirectly at best. Conceivably, if SSA reduced the SSI benefit, the 

operator could get less, or could evict the recipient and get 

a new resident. Chances are it would do the latter. 

is a minor technical point found on


Page 1 of the executive summary. Paragraph 2, line 3 under


Background" should read . Supplemental Security Income


Our second observation 


( SS I) . . . R . 

Other miscellaneous technical comments and observations have


been made on a mark-up copy of the report and provided to OIG


staff under separate cover.

APPENDIX C


CHARTS


C - 1

. FORCE TI 


STATE CORRECTIVE INSPECTED REVOKE/DENY CIVIL CLOSE RESTRICT UNLICENSED CRIMINAL 

ACTION HOMES LICENSE MONETARY HOMES ADMISSION HOMES CHECK 

PENALTY ADDRESSED 

Alabama/1 

Alabama1 Alaska 

Arizona Arkansas 

California Colorado/1 Colorado/2 Connecicut 

Delaware 

District of Columbia Florida 

Georgia 

Hawaii 

Idaho Ilinois Indianal1 Indiana1 

lowa/1 lowa/2 lowa/3 

Kansas/1 

Kansasl2 Kentuckv/1 Kentuckvl2 Louisiana 

Maine Marvland/1 Marvland/2 

Marvland/3 

Massachusetts Michiaan/1 

Michiganl2 

Minnesota 

S. IN STANDARDS y- YES 

E. ENFORCED 
Enforcement Options 

STATE CORRECTIVE INSPECTED REVOKE/DENY CIVIL CLOSE RESTRICT UNLICENSED CRIMINAL 

ACTION HOMES LICENSE MONETARY HOMES ADMISSION HOMES CHECK 

PENALTY ADDRESSED 

Mississicci Missouri 

Montana Nebraska Nevada New Hamcshire 

New Jersev/1 New Jersevl2 

New Mexico New York North Carolina 

North Dakota 

Ohio/1 Ohio/2 Oklahoma 

Oreaon/1 Oreaonl2 

Pennsvlvania 

Rhode Island South Carolina South Dakotal1


South Dakota1 

T ennessee/1 Tennesseel2 

Texas 

Utah/1 

Utah/2 Utah/3 Vermont/1 Vermontl2 Virginial1 Virginia1 

Washinaton/1 

Washinatonl2 West Virginial1 West Virainia1 Wisconsin 

Wvomina 

. The above information is based on analyzing existing State standards & discussions with State offcials. States may have other statutory authority to take. 
tate onf lanc ith el ct . tan ards 

State Definition Size Bord & Admission Resident Quti Strcture Health Fire Training Ucnsing Unlicensed Varance Inspectons Complaints Sacts 

Care Plan Riahts Homes 

Alabamal1 Alabamal2 Alaska 

Arizona Arkansas 

California 

Coloradol1 Coloradol2 

Connecticut 

Delaware 

Florida Georaia 

Hawaii Idaho Ilinois 

Indianal1 Indianal2 

lowal1 lowal2 lowal3 

Kansas/1 Kansas/2 Kentuckv/1 

Kentuckv/2 Louisiana 

Maine Marvlandl1 Marvlandl2 Marylandl3 Matt 

Michiaanl1 Michiaanl2 Minnesota 

. = yes


empty box = no 
State Definition Size 

MississiDoi Missouri 

. Montana . Nebraska 

Nevada New Hamosil New Jersey/1 

New Jersey/2 

New Mexico New York 

Nort Carlina


Nort Dakota 

Ohiol1 Ohiol2 Oklahoma 

Oreaon/1 Oreaon/2 

Pennsvlvania Rhode Island 

So Carina s. Dakotal1


S. Dakotal2 Tennesseel1 Tennesseel2 

Texas 

Utah1 Utah2 Utah3 VermonV1 VermonV2 

Virainial1 Virainial2 

Washinaton/1 

Washinaton1 W. Virainial1 W. Virainial2
Wiscnsin
Wyomina 

= yes 

empty box = no 

State Agency Conformance with Model Act Standards 

Board & AdmissionE Resident Quifiti Strcture Health Fire Training Licensing Unlicensed Variance Inspections Complaints Sanctions Care Plan Riahts Homes 
::::::::::::::::::::;:: .........:::::: ,., ....... ...., ::::......... ::::: :::::::::::::::;;:::::::::::::::: 

:::: ... .;:::;:::::: ;:::::::::: ::::::: ::;:::::::::;;::: :::::::::::::::;:;:::::::::::::::::::::::::::::::::;:::::::::$:::::::::::::::::::::::::::::::::;::::::;::::::::::::::::::::::: :;::::::::. .:. ::::::: ..:.;.: :::::: 

1 1J l H 

KEY OF MULTIPLE LICENSING AGENCIES u aUHH


Alabama/1 

Alabama/2 

Colorado/1 

Colorado/2 

Indiana/1 

Indiana/2 

lowa/1 

lowa/2

lowa/ 

Kansas/1 

Kansas/2 

Kentucky/1 

Kentucky/2 

Maryland/1 

Maryland/2 

Maryland/3 

Michigan/1 

Michigan/2 

New Jersey/1 

New Jersey/2 

Ohio/1 

Ohio/2 

Oregon/1 

Oregon/2 

Tennessee/1 

Tennessee/2 

Utah/1 

Utah/2 

Utah/3 

Vermont/1 

Vermont/2 

Virginia/1 

Virginia/2 

Washington/1 

Washington/2 

West Virginia/1 

West Virginia/2 

::::::::;::::X:::::;::::: 

Dept. of Health 

Dept. of Menta Retardation ilil 

Dept. of Health 

Dept. of Social Services II1I

Dept. of Health 

Dept. of Menta Health 1111 

Dept. of Human Services 

Dept. of Human Services 1111 

Dept. of Inspections and Appeals 

Dept. of Health and Environment ilf!l 

Dept. of Social Services and Rehabiltation 

Cabinet for Human Resources 

Cabinet for Human Resources 

Dept. of Human Resources 

Ofice on Aging


Dept. of Health 

Dept. of Social Services 

Dept. of Public Health 

Dept. of Community Affairs 

Dept. of Health 

Dept. of Human Services 

Dept. of Housing iii 

Dept. of Human Resources, Senior Services Div. 

Dept. of Human Resources, Mental Health Div. 

Dept. of Menta Health and Mental Retardation 

Dept. of Health and Environment 

Dept. of Social Services 

Dept. of Social Services, Div. of Aging & Adult Servo 

Dept. of Health 

Dept. of Health 

Dept. of Human Services 

Dept. of Social Services, 4 or more Residents 

Dept. of Social Services, 1-3 Residents 

Dept. of Social and Health Services 

Dept. of Health iil 

Dept. of Social Services 

Dept. of Health IIII 

::::::x: x;::";:.:x*:*:.:;x