In this new podcast, Barry Plunkett, Healthcare Operations Consultant, Horne, LLP, interviews Gabriela Sanchez, Co-Chair of the Senior Living & Long Term Care Team, Lane Powell, about her presentation at AHLA’s Long Term Care and the Law conference held March 2-4, 2020 in San Antonio, TX on regulatory and legislative developments in assisted living. The podcast discusses how assisted living facilities are responding to the coronavirus, including restricting and screening of visitors. The speakers also talk about quality measures and issues surrounding emotional support and service animals. Sponsored by Horne LLP.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
In this new podcast, Barry Plunkett, Healthcare Operations Consultant, Horne, LLP, interviews Gabriela Sanchez, Co-Chair of the Senior Living & Long Term Care Team, Lane Powell, about her presentation at AHLA’s Long Term Care and the Law conference held March 2-4, 2020 in San Antonio, TX on regulatory and legislative developments in assisted living. The podcast discusses how assisted living facilities are responding to the coronavirus, including restricting and screening of visitors. The speakers also talk about quality measures and issues surrounding emotional support and service animals. Sponsored by Horne LLP.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
Support for A H L A. And the following message comes from Horn, a different kind of accounting and advisory firm whose clients trust for industry focus, insights, street talk and collaboration. Horns healthcare team is composed of financial professionals, former healthcare executives, and IT experts, 100% dedicated to healthcare. For more information, visit horn l l p.com.
Speaker 2:Hello, I'm Barry Plunkett and Jackson, Mississippi. I am a healthcare consultant with Horn. Horn is a CPA and business advisory group, and with me is Gabby Sanchez. And Gabby,
Speaker 3:Uh, hi. Good, good morning. So I, I'll introduce myself as well. Um, my name is Gabby Sanchez as, uh, Barry mentioned, and I am the co-chair of the senior living and Long-term care group at Lane Powell. We're a, um, law firm based out of the Pacific Northwest, but we have, um, a national presence with respect to this space as we represent many operators, um, both assisted living and long-term care across the nation. And it's my real pleasure to be here this morning with you.
Speaker 2:Thank you. I had the pleasure of sitting in on your session with ALA's long-term care conference two weeks ago in San Antonio, and from that came up with thoughts that I had never had before and challenges in the legal aspect of assisted living specifically. So I wanted to ask you a few questions that you could share with the group and, uh, probably offer them some insights they have not had before. And I think it may be helpful for those who are not familiar with all aspects of long-term care for you to define for us what you mean when you say assisted living.
Speaker 3:Yeah, thank you for that. And that's actually kind of a hard question to really answer because it really depends on what state you're in, because there's such a wide variety of services that are offered under the umbrella of assisted living, um, across the country that it's, it's kind of part of define it, um, as just one thing. However, uh, generally I would say it's, um, residential care or housing with services that help you meet your, uh, ADL needs or activities of dating, living. So everything from providing you services in your home, um, for bathing, grooming, eating, um, and typically they provide the services or a assisted living community will provide an offer and coordinate these services over a 24-hour basis. Um, and essentially, you know, the goal is to provide an environment for residents to have a, a safe place to live, and they can receive these services. Uh, typically they're, um, unlike a, like a nursing home, um, they're really, you don't have 24-hour nursing care. It's just intermittent nursing care. And most of the services are provided by unlicensed caregivers. So, and, and, and in assisted living, one of the challenges, especially right now with this COVID 19 issue that we're having, um, is that they're all regulated differently by the different states. They're not, they're not regulated necessarily by the federal government like a nursing home would. So, you know, every, every state has sort of different standards and regulations around what you provide in an assisted living community or facility.
Speaker 2:So it could be anything from activities of daily living assistance in your own home to a true separate facility, um, freestanding or attached to a nursing facility or a retirement facility. Right.
Speaker 3:Um, yes. Um, so typically with an assisted living, you are in, um, typically in a, like a building. Um, and, and it's typically their apartment or units where the resident lives, and then the caregivers can go into those units to provide the ADL assistance. Um, but as you mentioned, assisted living can also be attached or part of a larger campus, which we, uh, like a retirement, like a C C R C for instance, or a life plan community. And in those instances, uh, typically you have all, uh, the, the, the sort of the continuum of care where you have independent living seniors housing, that's, that's truly just seniors housing assisted living is the next step up where people might need a little more assistance with care and then, um, and then they can also get skilled nursing care, which is the 24-hour nursing care. So yes, they can be attached in some cases, for instance, in Washington, um, independent living, um, and assisted living, they can be mixed in together because there are licenses that allow you to turn in an independent living room into an assisted, uh, living, uh, licensed bed. So it, it's all over the place.
Speaker 2:Okay. So cause of that diversity of arrangement, I'm sure it's a little more difficult to figure out how an assisted living facility demonstrates quality. Um, how, how, what will you look for if you were saying, I wanna find a really high quality assisted living arrangement? What says quality to you? An assisted living?
Speaker 3:Yeah, that's a great question. Um, again, it really, you know, I think if, when you think about it generally, um, because there aren't really any national standards for assisted living like you do in a nursing home, you know, generally when I think about quality, it's some, it's, it's an organization or a, or a, um, a, uh, assisted living community that's providing, um, you know, great care. They have a low incidence of falls or, um, you know, other, other adverse events. There's a low incidence of state citations, especially around abuse and neglect. And, um, and there's a minimal number of family complaints. That's typically what, what I would consider good quality care now because, um, you know, there is some states regulate assisted living more than others. I will tell you, Oregon is, um, a pioneer has always been a pioneer in this field for assisted living. In fact, we were the very first, I'm from Oregon, I practiced a lot out of Oregon. Uh, we were the first state really to offer assisted living anywhere in the nation, uh, back when this started. But, um, in fact, in 2017, Oregon has, uh, implemented a quality metrics report, um, where, um, it was passed by law where essentially there is a, um, we're gonna start measuring certain, certain quality metrics to ensure that assisted living, uh, communities are providing that quality of care and, and what they're gonna be measuring. And they've already started doing that in 2020, but what their idea for quality, like how do you determine whether something is good quality in assisted living? They're looking at retention of direct care staff, they're looking at compliance with staff training requirements, uh, the number of resident falls that result in injury, the incidence of use of antipsychotic medications for non-standard purposes, and then the results of an annual resident satisfaction survey that is being conducted by an independent entity. And these, these factors were identified and developed by a quality, uh, measurement council that was appointed by the governor. Um, and it includes industry, uh, providers and all sorts of other leaders in the field to help determine what those factors are. So what's gonna be really interesting to see, um, what we come up here with Oregon, and, and one of the, one of the reasons that we wanted to do this here is because we have so much negative publicity around assisted living, and we're terrible and we're dropping people and we don't provide good care, and they don't ever see the good story. Right? And then, and you may have a bad apple here or there, but the majority of of assisted living communities are really wonderful. And by putting these quality metrics in place, we can start showing them, um, using objective criteria.
Speaker 2:Gabby, is that quality measurement readily available for the public to look at?
Speaker 3:Yes. In fact, that's exactly why it's being one of the reasons it's being developed. Or one of the, one of the primary reasons there will be an annual report that the Department of Human Services here in Oregon, uh, will compile all of this information and they're gonna publish this annual report, which essentially describes statewide patterns and trends of what they're seeing based on those quality measures. And that report will be available online n not only to be used by the communities themselves for quality assurance and quality improvement, but it'll also be available to the general public to evaluate and compare facilities. So it's a little bit like, uh, modeled a little bit like nursing home compare right now. Um, and so, you know, I think it's gonna be a great report and it'll be very useful I think in our business and maybe others will adopt the same.
Speaker 2:Uh, I'm sure a lot of people will be going over that website.
Speaker 3:Yep.
Speaker 2:There were some interesting aspects that, uh, and I've been involved with a C C R C in its development in Mississippi and the things that we have not had to think about in the past that you guys discussed when we were in San Antonio. And, uh, just want you to talk a little bit about them. Things like emotional support and service animals. How do you make a judgment call on the use of those and a allowing them to be part of your, your life in assisted living?
Speaker 3:Yeah, great question. Um, that is actually one of the tougher questions that most of our clients face. Um, and it's hard, um, because, so let, let me just back up a little bit and explain to you what a service animal is and an emotional support animal because they are two different categories and they're protected a little bit differently. So a service animal is protected under the A d a American with Disabilities Act, and that's anybody with a disability gets protection under that and a disability's widely defined. Um, but essentially a service animal, um, under the ADA that gets protection under the ADA are dogs. And now they're, they've been expanding it to many horses, but essentially it's, um, a dog that has been specifically trained to help a person with a disability, um, an a system with a specific disability. So they do have to have particular training. Now, an emotional support animal is not protected under the ada, but it is protected under the Fair Housing Act, which is an, uh, something that, uh, CRCs absolutely have to comply with as well as assisted living. Um, and those, um, emotional support animals are essentially companion animals that provide either some kind of therapeutic benefit for the person or somehow assist them, um, with their disability. So under fair housing, it's a much broader protection because it includes protection for, you know, emotional support animals, and they can be anything from snakes to goats to dogs monkeys. It can be anything. And it also protects the Fair Housing Act also protects the service animals under the ada. So both service animals and, and companion animals are protected under the fair housing. So it's very expansive. And then the ADA only protects service animal. And one of the, the issues that a lot of our clients and, and CRCs assisted living communities face is, you know, trying to figure out when do we give somebody a reasonable accommodation to allow, um, a an emotional support or a service animal into our community? And, you know, the, the easier answers are people that have like a seeing eye dog, right? Um, that's pretty easy. And that's a, that's an easy one to assess and evaluate and allow that. The harder one is when someone has, um, you know, an emotional support snake and is that really an animal that is providing some sort of, um, therapeutic benefit to the person? It's, it's, you know, and the answer is yeah, well, it, it may be, it might depend. And so essentially what the communities have to do is they have to sit there and, um, determine whether or not this is a reasonable accommodation. And they typically, you know, uh, will require or request information from a physician that will allow them to help make that decision. But it is not an easy decision, and there's a lot of litigation and complaints around this space.
Speaker 2:Does it become more complicated if the resident decides they need this type of animal after they are a resident as opposed to having the animal prior to becoming a resident?
Speaker 3:Um, yes and no. Um, because, you know, there's a lot of concern that people that you're like, if they're applying to come in as a resident to a community, that they just don't want to pay that pet fee. Yeah. And so they're, you know, it's really, they wanna try to make it an emotional support animal. And, and there may be some truth to that. And so that is a difficult thing because you cannot deny someone admission on the basis of them having an emotional or a service animal. Um, and then when, when they're already in the community, the same concepts apply too, right? So you would still, um, you would still have to evaluate whether this animal is truly an emotional support animal, or these people are just trying to bring in a pet and not have to pay for the pet fees and, and follow all the pet rules. So the analysis is the same, um, because one with the admissions, you can't res you can't deny them admission with the people that are already there. Um, it's, you can't, uh, necessarily take adverse action against them because they wanna bring in a companion or service animal. So the analysis is similar and the issues are similar.
Speaker 2:Very good. Another topic you talked about, which was fascinating and does get a little complicated, and that's the topic of granny cams, um, privacy and confidentiality. When are they acceptable?
Speaker 3:Oh my goodness. Um, well, like all good lawyers, I'm gonna say it depends. Um, it, it really depends on your state laws and regulations if you have them. Um, and this is, this is a complex area because not only does it involve state regulatory laws that, that, you know, sometimes a lot more states are moving towards having regulations and laws around the use of these electronic monitoring devices, but not all of them do. Um, and so not only do you have to look at that, but you also have to look at other state privacy laws around, you know, uh, permission for recording somebody. Um, like for instance, in Oregon here, we're a, um, one person consent state, and we don't have any regulations around assisted, uh, use of, uh, of electronic devices in assisted living. So, um, and only one person is required to, to consent, if you will, to being recorded at least, um, orally. So it, it, it, it gets a little bit confusing and, and difficult to, to kind of figure out what you're gonna do or if you're gonna allow these cameras. But in most states, the trend has been moving towards having, um, al camera monitoring legislation or assisted living camera monitoring legislation. And essentially, um, providers should be looking at what are their states saying about this. Generally speaking, um, most community, most states are allowing residents to have these cameras, but they have to be out in the open and they cannot be, uh, like secret cameras or like hidden somewhere. They're supposed to be out in the open where everybody knows about it. And there has to be consent obtained from any kind of roommate, and there has to be postings outside. And this is what we also recommend to our clients postings outside notifying and warning people that they are being recorded. So, uh, you know, I, that's, it really just depends on, on the state you're in.
Speaker 2:And these are usually installed by family members.
Speaker 3:Um, yes. So there's, so there's a split, right? Because, um, there are communities that wanna record for quality assurance and safety purposes, and those are typically a lot more restricted by the Department of Human Services across the state. Generally speaking, they're not allowed to do that, or they have to do it in very public spaces like, uh, dining room or, and, and maybe even not them, uh, but like maybe at the entrance because there's a concern about privacy and resident rights because this is their home. Um, so communities are restricted from doing a lot of recording, depending on the state. And then the other side of the coin are residents, and this is where we're getting a lot of requests where the residents want to record in their room and have a recording. And frankly, a lot of it is driven by family members. It's not necessarily residents per se, but it's family members that wanna keep an eye on their loved one. So that brings up a whole host of privacy and resident right issues as well.
Speaker 2:Nothing's easy, is
Speaker 3:It? Uh, no. This business is rife with risk and, um, you know, there's, it's very complex situations cuz you're dealing with, you know, um, elderly people that may or may not have capacity or have diminished capacity or, or maybe fully c you know, have full capacity. And then you're dealing with family members that are struggling with aging loved ones. Um, yeah, no, it's, it's a tough, it's, it's tough sometimes to be a, an operator of an assisted living community.
Speaker 2:Well, speaking of risk, we would be remiss if we did not talk about what's going on in the world today with the Coronavirus pandemic. And what, uh, are your feelings on screening visitors and family members when they come to visit? Uh, a loved one in assisted living.
Speaker 3:Yeah. Thank you for bringing this up. This is, wow, I, I gotta tell you, we're living, we're living in some very unusual times right now. Um, it's, it's, I I was talking to my husband about that actually last night, and I was telling him, it's incredible to me, um, the, the, what we're doing in this industry because, uh, resident rights are tantamount to, I mean, they're just super important, right? Residents have the right to visit with whomever they want. I mean, this, this is their home and we should not be restricting visitors. I mean, that has always been the mantra in this business. Resident rights residents have the right to visit with whomever they want, whenever they want to, at whatever time they want to. And in fact, there was some legislation introduced through the, um, H C B S rights, um, a couple of years ago or about a year or so ago that specifically is geared toward not limiting visitation rights in, in community-based care like assisted living. Um, but we're living in some unusual times, as you mentioned. And, um, there are a lot of state agencies including, um, Oregon, New York, um, you know, Indiana, I mean, across the nation that are, um, are, are really scrambling to address this, this, this pandemic. And they are, the state agencies are specifically, um, giving guidance and in some cases directives to assisted living communities to restrict visitors and restrict them to only essential visitors. So e essentially c, d c lo, local public health officials, the state appointed ombudsman, not the volunteers and, uh, caregivers and staff that are necessary to run these communities. And they are allowing some, um, for compassionate, um, reasons like people end of life, uh, visitors there, but very restricted. Um, and then anybody that comes in has to be screened so that they don't show any signs of or symptoms of this virus. And, uh, frankly that's extraordinary given resident rights and the rights of residents to visit with whomever they want. And we're, we're, we're dealing with some very unprecedented, uh, ground right now, and it's just been amazing me to see, for me to see this on a personal level, I think they're doing the right thing, frankly, um, given how, um, how contagious and dangerous this virus is to our population. And we are caring for the most vulnerable people in assisted living and in long-term care. And I think it's necessary to do these things in order to protect our, not just our, our, our, our residents, but our staff as well who need to be healthy to care for these people. So, um, well it's, um, it's incredible, um, limitations that we're having right now. I think that they are necessary. With that said, however many states and many of our clients are also taking steps to ensure that visitors do have access, even if it's electronic or, or virtually to their family. So they are setting up cameras and Skype and FaceTime so they can visit with their loved ones so that they're not fully ostracized. But yes, it's, it's, it's incredible times right now. But I, I think these measures are called for
Speaker 2:When a visitor comes to visit and they are screened. Is that primarily a verbal questionnaire or temperature check, or what usually does that entail?
Speaker 3:Yeah, great question. Um, I've actually done the survey across 28 states. We have a client that has several communities across 28 states. So I've looked at a lot of what is happening. My, sometimes it's, it's, it's a tremendous amount of information, but yes, what most people are doing, and most people are being required to do is have a questionnaire. And, um, and you know, the logistics are, are people are still trying to figure that out. But a lot of our clients are having people either email or call that they wanna come visit. That's for ca that's for communities that are not fully restricted. Cause not all of'em are. Um, and they have them answer a questionnaire around, you know, um, have you been sick? Do you, do you have any symptoms of covid 19? Um, have you been out of the country in the last 14 days? Have you been around other people that are sick or have been exposed to covid 19? You have a temperature. And if the person answers, you know, no, essentially that they haven't been exposed, then they, uh, will, they, they may be allowed to the community, but once they come into the community, they, some, some of our clients are actually scanning people's forehead or temperature. And if the person shows any elevated temperature, they're turned away. And if they're not and they seem safe, then um, they're provided to the extent they have'em available. Cause there's shortages, um, uh, masks and gloves and are being instructed to go directly to the residence room and they are not allowed to leave that residence room.
Speaker 2:Wow. It is a different world today.
Speaker 3:It, it really, I honestly, I, when we were sitting at a H L A, uh, which would've been, you know, a little bit over a week ago, it's, it's ex extraordinary how much our lives have changed.
Speaker 2:It is amazing. Well, what's also amazing is that assisted living is such an important part of this circle of life that we all go through and we, um, are learning how it changes and grows every day.
Speaker 3:Absolutely.
Speaker 2:Gabby, I thank you. We have almost spent our time up and you have given us great things to think about and some answers to questions. I'm sure a lot of people had enjoyed chatting with you.
Speaker 3:Yeah, thank you so much. It's been a real pleasure.
Speaker 2:And this concludes our podcast. And thank you guys for tuning in and listening.