Category: Mike’s Column

Half of assisted living providers are operating at a loss, and 64% say they will not be able to sustain operations for another year, according to survey results released in August by the National Center for Assisted Living. In the poll, assisted living providers shared they are facing a financial crisis like that experienced by nursing homes as their COVID-19 response has significantly increased costs while also affecting revenue streams.

One of our students said he would be better off if minimum wage had not taken effect in July 2020 for Los Angeles County, which increased to $15.00/hour for employers with 26 or more employees and to $14.25/hour for employers with 25 or less employees (a full $1/hour increase from 2019).

Unlike nursing homes, assisted living providers have not received any direct federal funding while incurring significant cost increases for personal protective equipment, staff “hero pay,” cleaning supplies and testing. Nursing homes are also facing fines up to $8000 if employees are not tested for Covid-19. This does not yet apply to assisted living. Assisted living operators have not received federal support in the form of PPE and testing, which many providers are paying for out of pocket. Only 15% of assisted living providers received some funding from the Coronavirus Aid, Relief, and Economic Security (CARES) Act Provider Relief Fund for all Medicaid providers—of which less than half of assisted living operators are eligible. (It is possible those facilities in the Assisted Living Waiver Program could be eligible.)

Associations representing senior living and other long-term care providers have asked Congress for $100 billion to cover the COVID-19-related costs of testing, PPE, and staffing. No response yet as Congress is waiting until after the November elections.

Recently, the California Supreme Court ruled that the 1982 Long-Term Care, Health, Safety, and Security Act allowing residents to sue skilled nursing facilities does limit their compensation to $500 regardless of the total number of violations. Will its decision apply to RCFEs?

California Welfare and Institutions Code 9701 defines a long-term care facility as “any nursing or skilled nursing facility” and “any residential care facility for the elderly.” The Supreme Court decision only seems to cover skilled nursing facilities, but this decision may open the door for decreased judgments against all assisted living facilities.

The concept of assisted living predated the enactment of Medicare, but there were no laws or regulations addressing how to operate care homes. In The Gerontologist, Keren Brown Wilson, PhD said residential care and assisted living started evolving into a more formalized setting in 1979.

In 1973, California enacted the community care facilities act with the purpose of providing quality care in a homelike setting to mentally ill, and developmentally and physically disabled adults and children. Disabled elderly were being housed with those adults but the setting was not optimal. In 1985, the legislature enacted the RCFE Act to give the elderly a better option.

In 2020, the number of RCFEs may be rebounding after the horrific closure of over 1,000 between 2007-2009. Although the number of RCFEs only increased by one from July 2018 to June 2019, the apparent increase from July 2019 to June 2020 is estimated at 127. However, it also appears the number of “placed elderly” did not significantly increase in proportion to the increase in facilities.

What is your vision of California RCFEs after Covid-19? I think the industry will receive more oversight from the Department of Public Health Services (nursing home regulators) with stricter guidelines for compliance and more laws and regulations. If that happens, there will be more operators exiting the industry, more facilities going “underground,” more elders abused in horrible care homes, more caregivers financially abused (something we see now) and an attempt to return to days without government intervention.

The number of licensed RCFEs will go down, but more will open—illegally.

What is going on?

I bet you have asked yourself that question more than once in the past few months. Robin and I have talked to many of you, and because we are now marketing into Central and Northern California, we have met many new students in our live streaming courses. You have asked that question and many other questions which Robin and I have attempted to answer with clarity and honesty.

The truth: no one really knows what is going on with COVID-19, admissions, visitors, temperature taking, hospice and home health visits, trips to the ER, etc. I give DSS credit for attempting to keep administrators and vendors informed. It takes ferreting out info from DSS’ provider information notices (PINs, found on CDSS’ website), but the info is there.

In a recent PIN, facilities can admit clients AND can allow visitors. (See our COVID-19 plan of operation under Products and Services for a visitor screening.) DSS is recommending limiting entry to individuals who need entry, i.e. facility staff and service providers, such as home health or hospice, who keep the operations running and ensuring the needs of persons in care are met. My recommendation is nurses only, not CNAs or “bath aides” as facilities are required, by the admission contract, to bathe and provide care. If a county or state official needs to enter to inspect or assist you, DSS believes these individuals are necessary.

Facilities can allow immediate families or friends. To allow visitors, make sure the appropriate signage is posted regarding the risks associated with COVID-19 and the recommended precautions visitors will take. Establish specific visiting hours and use only ONE entry point. It may be best to allow visitors in when staffing levels are higher to monitor visitors’ handwashing and moving throughout the facility. To tour prospective residents, employ the wearing a facemasks, gowns, and gloves. (Facility is NOT required to provide these items but can, if available, keeping in mind future needs for staff must come first before visitors.)

It is OK to take persons to essential medical care such as dialysis, doctor visits, etc.

Facilities must require all staff and visitors to wash their hands upon entry at a handwashing and/or alcohol-based hand sanitizer stations immediately inside all entryways with signage reminding people to wash before entering. Ask each person who enters to immediately wash their hands or use the hand sanitizer before doing anything. Remind visitors and others to maintain social distancing. If possible, keep a distance of at least six (6) feet between yourself, the client, and staff. If someone is coughing, sneezing, or has a fever, do not allow them to enter.

Go to our Products and Services Page and download, free, our COVID-19 plan of operation. There is a visitor screening you can use when allowing persons into your facility.

In response to the COVID-19 precautions, DSS has authorized LIVE STREAMING courses to replace “live, in-person” classes. You will need a computer or laptop. We are not sure how a phone will work (download the Zoom APP). Active participation is required and is monitored; a camera in your device is required.

LIVE STREAMING will be over 4 days, with no more than 6 hours per day. It will only be 20 hours, then 20 hours can be done ONLINE per DDS’ guidelines. Go to Live Courses, RCFE Renewal, and pick a live streaming date or dates. Then go to Mike’s Online Classes and explore possibilities. Remember, you need at least 4 hours of laws and regs (first day of live streaming); 1 hour LGBT, (online); and 8 hours on dementia (days three and four of live streaming) as part of the 40 hours. Course materials will be emailed to you.

We are asking that you pray for an end to the spread of this virus!

We are very thankful to our students who trust us with their continuing education. We are glad more administrators are taking our courses for the first time. We get concerned when our “first-time students” tell us “the other vendor told us” or “my analyst said we had to…” or I got this “DSS memo.”

We understand some vendors teach “recommended practices” or “outdated regulations” which leads to confusion when we teach current state law. From our 20+ experience, we know Title 22 lags behind state laws. According to the Office of Administrative Law, a regulation may not be necessary when a law is clear in its intent. For instance, Health and Safety Code 1569.655, effective January 1, 2003, required RCFEs to provide residents a 60-days’ notice of a rate increase. That law was immediately enforceable even though it was not in Title 22, because the intent was specific: 60-days advance notice of rate increases.

Yet, Title 22 still had the obsolete regulation of a 30-days’ notice until an update in April 2017. The law created a new requirement enforceable over the outdated regulation. Licensees giving a 30 days’ notice from 2003 to 2017 were violating the law, but not the regulation. When new laws are enacted, old regulations are no longer enforceable if contradicting the new law. If the new law had just stated a licensee had to give “adequate notice” or “sufficient notice” then Title 22 would need to clarify that law and define what sufficient notice means.

If someone tells you there is a requirement, but it is not found in the laws and/or the regulations, it is not required even if an analyst said it was required. Without citing a current law or regulation, it may be wanted, but not required.

The New Year. I think everyone, optimists and pessimists alike, have an opinion about it, but really don’t have a clue what to expect. What we do know is, at least for RCFEs in California, there will be higher operating costs. Minimum wage increases in January to $12.00/hour for smaller employers, but in Los Angeles County, it will be $14.25/hour in July. (Employers with 26 or more always pay more.) San Diego city will pay $13.00. With higher wages, come increases in workers compensation and payroll taxes. We know Governor Newsom signed nearly 1,000 bills into law in 2019 most taking effect January 1. A quick review did not find any damaging provisions to the elder care industry, but there is that ridiculous law on centrally storing residents’ guns when brought into facilities.

What changes will DSS undergo? There have been promotions and new hires that have already had an impact on DSS and facilities—time alone will determine if these will have a positive impact. What new DSS regulations will be forthcoming in 2020?

Whatever the future brings, remember it is about caring for the most vulnerable, our elderly. It’s about treating them with love and respect. It’s about treating our staff fairly and affording them respect. Burnout among caregivers is increasing. (A resident was murdered a few weeks ago by a caregiver.)

Compliance is always mandated. Know the laws and obey those laws.