Regulation: The State of the States.

Assisted living regulations might differ from state to state, but at least two truisms are constant: The regulations are constantly changing, and they can significantly affect how an assisted living residence operates.

The current regulatory "big picture" is testament to how fast these changes can occur. At the end of February, there were 245 active bills pending before 39 different state legislatures that could affect assisted living providers. Six states were in the process of drafting assisted living regulations (IL, MS, MO, NH, TX and VT), and another seven were revising their existing regulations (AL, AK, DE, FL, MA, NY and SD). This flurry of regulatory activity--and the inherent cost to providers of these changes--is one reason the Assisted Living Federation of America (ALFA) and its 35 state affiliates have greatly stepped up their tracking of state and federal legislation in recent months. In all this activity, several notable trends can be observed among the bills currently being considered nationwide.

Defining terms. First, there's the ongoing trend of establishing assisted living as a distinct entity within the senior living continuum. By now, most industry stakeholders are familiar with ALFA's definition of assisted living--a special combination of housing, personalized supportive services and healthcare designed to meet the needs, both scheduled and unscheduled, of those who require help with activities of daily living. At the beginning of this year, 29 states had existing regulations that used the specific term "assisted living." Two more states, New York and Virginia, had pending legislation that also would use the term.

As with most trends, there also are a few exceptions. Recently, two states have moved in the opposite direction, attempting to move assisted living more into the realm of healthcare facilities. In Alabama, H.B. 433, introduced in early February, would expand the definition of hospitals to include assisted living. Another Alabama bill, H.B. 435, would define healthcare facilities to include assisted living, thus requiring a certificate of need for assisted living in that state. Meanwhile, in Mississippi, a draft of new personal care home regulations released last October would, if adopted, blur the regulatory line between assisted living and nursing homes. ALFA opposes all three initiatives, in keeping with its philosophy that assisted living is its own (residential) model and deserves a different regulatory approach, based on the way our paying customers created us to be (and about 86% of assisted living residents are private pay).

Affordability. In another national trend, many states are exploring ways to make assisted living more affordable to low-income residents. Thirty-eight states currently offer some form of Medicaid for assisted living or are initiating demonstration projects. Another five states are planning new Medicaid programs (LA, MS, OK, UT and VT). California and Ohio also are considering pilot projects.

ALFA's public policy goal is to make this cost-effective model more widely accessible to those who cannot afford it on their own. Currently, there are fewer third party payment or reimbursement opportunities than for other forms of long-term care. To support this endeavor, ALFA has created an action team of prominent industry leaders, called ALFACares, to develop and implement a strategy that promotes affordable assisted living.

Disclosure. In the wake of increased pressure from the federal government, at least one state is looking at how providers are disclosing admission and discharge criteria to prospective residents. Kentucky is moving legislation to require certification of assisted living providers. A major part of that program would specify how providers inform residents of policies related to discharges and the contracting of additional services. ALFA's affiliate, the Kentucky Assisted Living Facilities Association, supports the bill.

ALFA strongly believes in the need for full disclosure and offers many tools to help providers and consumers alike, to discuss services, fees and policies with prospective residents before move-in. These tools include a checklist, a free model resident agreement, a "consumer information statement" and a soon-to-be-released tool to help marketers better understand disclosure issues.

Medication administration. In another trend, several states are examining how medications are administered. In some states, only nurses may administer medications, while other states allow trained, supervised caregivers to assist. Under a new initiative in Washington State, registered nurses in community-based care centers would be allowed to delegate medication-related tasks to a nursing assistant under their supervision. A proposed exemption in New York would allow similar delegation to certified medical technicians.

ALFA supports delegation of medication administration to trained assistants in accordance with a licensed medical professional's instructions. ALFA University has created a medication management course that we encourage states and providers to utilize.

Keeping track. In such a busy legislative year, ALFA is developing several mechanisms to help providers keep track of pending initiatives. These include a weekly state legislative tracking system, a guide entitled Assisted Living Regulatory & Legislative Summary: A State by State Profile and a CD-ROM of assisted living regulations from all 50 states.

With change comes opportunity. ALFA and its state affiliates will be working together with consumers, providers and regulators to effect a future that all parties can not only live with, but also embrace. Only by understanding each stakeholder's perspective will we be able to ensure that residents and their preferences remain the focus and the engine of the assisted living experience.

Mark Melia is director of state affairs for the Assisted Living Federation of America (ALFA).