Residential Care

  About 10,000 residential care facilities house more than 155,000 people, providing supervision and non-medical services.

Government does not pay directly for residential care, but it does impose a limit on what facilities may charge if the resident is an SSI/SSP recipient -- and, at about $23 a day, the limit means that facilities receive less than a motel that provides no service.

Rigid licensing distinctions make it difficult for facilities to offer services that would allow residents to age in place.

While eager to avoid the complicated oversight system that skilled nursing facilities operate under, residential care facilities want clear guidelines with consistent interpretations.






Residential Care

Finding 4: Regulatory changes have not kept pace with the changing role of residential care facilities.

Residential Care Facilities for the Elderly (RCFEs) are a consumer-favored option for long-term care because of the home-like setting, lower cost and individual freedom provided. Although conceived as a non-medical approach to long-term care, their function has grown increasingly complex as residents have been given the right to remain in place with greater and greater need for care. While new regulatory categories have been added piecemeal to broaden the role of RCFEs, no comprehensive re-examination of where this service fits in the long-term care continuum has occurred. But as a key service that can keep people from premature institutionalization and foster at least partial independence, RCFEs deserve attention and reform that will support expanded availability to people with long-term care needs.

California has 5,234 licensed RCFEs with a capacity of 116,082. Another 4,691 facilities house adults between the ages of 18 and 64, with a capacity of 39,259, and 23 facilities provide residential care for up to 272 people with chronic life-threatening illnesses (largely AIDS). Thus there are almost 10,000 facilities that house more than 155,000 people. These facilities range in size from under six beds to more than 100 and in appearance from homes tucked away on residential streets to apartment-like complexes on bustling streets. Nine or 10 is the average bed size, but 70 percent are six beds or fewer.(94)

Residential care facilities provide a range of services that stop just short of medical care. Services include providing meals, shelter, laundering, transportation, supervision of medications and limited assistance with the activities of daily living (dressing, grooming, eating, bathing, toileting and walking). Residents cannot be bedridden nor can they require 24-hour nursing care. The facilities are responsible for the safety of residents, but residents are free to come and go as they desire.

Among the issues raised regarding RCFEs during this study were:

Going Rates

Unlike skilled nursing facilities, the State is not a direct purchaser of services in Residential Care Facilities. But that has not stopped the State from intervening in the pricing structure for RCFEs.

RCFEs may charge whatever the market will bear -- but if the resident is an SSI/SSP recipient, then the facility may only charge that person the SSI/SSP benefit rate minus about $90 for personal spending. (Supplemental Security Income is a federal program of cash assistance to the aged, blind and disabled who have limited income and resources. The companion State Supplementary Program puts state funds into the mix.)

At current rates that means somewhat less than $700 per month -- or about $23 a day (as one Commission advisory committee member commented, not even as much as a hotel charges). This compares to monthly rates for non-SSI/SSP recipients that range from $1,300 to $2,000 statewide, with a median rate of $1,512 (the median is slightly higher in Northern California's urban counties -- $1,850).(95)

The result of the disparity between the artificially limited $700 rate and the $1,500 median rate is that facilities limit the number of SSI/SSP recipients that they will accept -- if any -- and then subsidize care with higher private-pay rates than would otherwise be necessary. SSI/SSP recipients, who make up about 30 percent of all RCFE residents, are used as "fillers" in facilities with empty beds. Or they cannot find space at all in some Northern California counties, according to consumer advocacy groups.

The state policy has had several unintended consequences. Families of SSI/SSP recipients, until recently, were not allowed to voluntarily supplement their relative's ability to pay as a means of procuring a better level of care or environment. This set them apart from people who could afford to pay much higher rates and consigned them to finding care in RCFEs that often would not have been their first choice. The State recently changed this policy, but now consumer advocates fear that the "voluntary" nature of supplementary payments may turn into mandatory "blackmail" -- or that discontinuance of such payments at any time might lead to evictions.

The policy of holding down rates for one group of people has also created a gap in who can afford RCFE service. People who collect Social Security or pensions that are above the SSI/SSP eligibility level but below the ability to fund private-pay rates -- roughly $750 to $1,400 per month -- have no choices.

Several options have been offered by various experts:

For many people, residential care facilities are a last stop before skilled nursing facility placement, the most costly service from the State's perspective and the most restrictive level of care from the consumer's viewpoint. Restructuring the way RCFEs are paid is one route to increasing their availability as a community care resource.

Licensing Categories

The people who operate RCFEs cite two factors with the potential for affecting their industry negatively: competition from other forms of housing that assist people but that do not have to obtain licensing, and complications from the Americans With Disabilities Act. Consumer advocates worry, as well, about unlicensed operations that may promise lots of care, fail to deliver when it is needed and then be accountable to no one since they are not within the purview of community care licensing. And policy makers are concerned about the licensing barriers that may prevent the expansion of living arrangements that are community-based and capable of keeping people from deteriorating to the point of needing skilled nursing care.

Care, supervision, case management -- these are the concepts that make a facility fall under the residential care facility licensing requirements. But some forms of independent living housing and congregate living facilities offer assistance with a variety of functions: meals, transportation, housekeeping and social activities. The key difference lies in whether a facility provides assessment, linkage to services and other actions designed to meet a resident's specific needs.(99)

A facility can be deemed an unlicensed RCFE if it accepts or retains residents who demonstrate the need for care or supervision. To become licensed, a facility would need to meet standards that include a pre-admission appraisal, prohibiting residence by people who are bedridden or who cannot self-administer medications, providing an admission agreement outlining specific services and meeting increased building and fire safety requirements.

Because meeting these requirements can be expensive, assisted living facilities may try to avoid crossing the line by providing too much service. This, in turn, may mean that people cannot remain in their present living arrangements when their condition requires more assistance. A Senate Office of Research report in 1993 cited the confusion over when community care licensing standards kick in as a deterrent to the development of more community-based assisted living arrangements.

In addition to these concerns, the RCFE industry sees a legal conflict between state regulations that require them to reject some people as residents -- those with excessive medical needs -- when the Americans With Disabilities Act requires no discrimination and "reasonable accommodations" for people with needs that are not met by normal operations. Industry advocates cited this as an area that may move into the courts in the future, especially if family members vigorously oppose the removal of a resident whom the State has deemed unsuitable for RCFE care.

As long-term care options develop and providers move to arrangements that offer integrated care, the lines between licensed and unlicensed care may blur. While expansion of options is a top priority, protection for consumers remains a concern. These two goals may require a fresh assessment of how licensing standards are applied in community-based settings.

A Matter of Size

Regulating facilities that range in size from under six beds to more than 100 presents the State with challenges. The State's top goal is to oversee quality of care for residents, not to protect the industry or nurture struggling businesses. But because of the growing numbers of citizens who need out-of-home assistance, the State does have a legitimate interest in maintaining and expanding accessibility to this type of care.

RCFE operators and other care providers who served on the Commission's advisory committee said that small facilities have difficulty complying with regulations that are often written with much larger facilities in mind. Few regulations make a distinction between what is required of various sizes of facilities.

Advisory committee members from the industry also complained that the Department of Social Services performance in overseeing RCFEs is erratic. Policies may be interpreted differently by different regional offices and the attitudes and actions by individual analysts assigned to an RCFE are not always consistent. They also noted that they have far fewer due process safeguards than do skilled nursing facility operators who are overseen by the Department of Health Services. And they were particularly critical of the lack of assistance available to a facility that wants to comply with regulations but has difficulty understanding the State's requirements.

The Department of Social Services, however, is recovering from several years of deep personnel cuts and has embarked on a course of standardizing policies and providing intensive training for the people who inspect RCFEs. The Department also has an interdisciplinary team that reviews appeals of inspection findings. In addition, policy makers recently provided the funding for the Department to double its tiny staff of technical assistance personnel -- the unit that can provide help to RCFEs in understanding what actions must be taken to comply with state regulations.

While the State does not need to take on the responsibility of incubator to develop high-quality RCFEs, it can play an important role in improving the quality of care in an industry that is disproportionately made up of small businesses with few resources. The Department of Social Services was undergoing a review of regulations to streamline processes and eliminate unnecessary rules as this report was being written. Many of the people who participated in this study believe a positive outcome of that effort would include treating small RCFEs separately with due consideration for their size.

Other Issues

Other issues raised during the course of the Commission's study included medications, the eviction process and the lack of solid information about RCFEs.

  • Medications: RCFEs can assist with medications, but not administer them. For instance, an RCFE may remind a resident that it is time to take their medication and have a safe, locked area where medications can be stored and tracked. But it is up to the resident to actually take the medication, measure it out if that is necessary and in other ways control the process.

    Several RCFE operators complained that the restriction against RCFEs helping with medication is so broad that aspirin and over-the-counter cough medicines cannot be provided without specific, event-by-event doctor's authorization. This may make a middle-of-the-night cough or headache difficult to cope with.

    Consumer advocates expressed concern that RCFEs not slip into a category that might allow them to influence whether chemical restraints -- psychotropic drugs -- are administered, an area that has been a problem in skilled nursing facilities and that has led to strong informed-consent provisions for residents. Recent studies indicate that RCFE residents take a large number of drugs. More than one-third use at least one psychotropic drug and 10.5 percent take two to four different psychotropic drugs.(100)

    Many academic studies have shown that the elderly are particularly prone to misuse of drugs and unmonitored combinations of drugs that may threaten their health. But loosening regulations regarding limited types of over-the-counter medications made sense to many people on the Commission's advisory committee.

  • Evictions: Consumer advocates say that tenants have more protection from their landlord's evicting them than RCFE residents do from a facility forcing them to relocate. They pushed for legislation in 1996 that would have applied standards similar to those that are used in skilled nursing facilities: that a resident only be evicted for failure to pay or if his stay is a danger to health and safety. The measure also would have required facilities to inform residents of their right to contest evictions.

    RCFE operators argue, however, it is to their advantage to keep a facility full so business pressures keep unnecessary evictions from occurring. They say that state regulations give them very little protection from residents who damage facilities or who persist in disruptive behavior.

    This is a particularly sensitive area for small RCFEs. Since small facilities offer a home-like environment, it is important for a resident to be a good "match" for the operator and the other residents. Operators said it is sometimes difficult to tell upon admission whether someone will fit in. But usually within a few weeks, problems will surface if they are going to.

    Based on anecdotal evidence, it appears that regulations in this area are neither strong enough nor clear enough to protect both the consumer and the provider.

  • Information: Academics who study gerontology issues and try to provide accurate data to policy makers say there is a lack of information about long-term care for the elderly in general and Residential Care Facilities specifically. In skilled nursing facilities, residents' condition and attributes are recorded in the federally required Minimum Data Set (although at this point the data is not routinely turned over to the State where it can be shared with researchers). Nothing similar is required of RCFEs, although regulations do require them to make a pre-admission assessment of each resident.

    Filling in this gap of knowledge could be accomplished in several ways:

    Summary

    Residential care facilities are a critical component of the community-based efforts to keep people with long-term care needs in home-like environments. But these types of facilities receive far fewer resources, state attention and encouragement to deliver services in creative ways than is necessary to ensure that their potential is maximized. Policy makers can take several steps in the area of rates, licensing and operations to enable RCFEs to make a larger contribution to providing long-term care options.

    Recommendations

    Recommendation 4-A: The Governor and the Legislature should restructure state policies regarding RCFE rates.

    With market forces driving prices for 70 percent of the residents in RCFEs, state policies to artificially suppress rates for SSI/SSP recipients have had counterproductive affects, including lack of access. In addition, many people who are not poor enough for SSI/SSP benefits but too poor to pay $1,500 a month are left with no options for out-of-home care other than expensive skilled nursing facilities. Policy makers should take several steps:

    Recommendation 4-B: The Governor and the Legislature should revamp the regulatory structure for RCFEs.

    An earlier recommendation calls for the complete restructuring of licensing to allow more flexibility and integration of long-term care services. This is particularly true for RCFEs, which would benefit from regulations that are size-specific and that more easily accommodate add-on services to a core package of basic care.

    Recommendation 4-C: The Governor and the Legislature should encourage more clarity and consistency in enforcement efforts by dedicating more resources to staff training and enhanced technical support services.

    Fairly enforcing regulations that avoid micromanagement and encourage innovative approaches requires state staff who are trained and kept abreast of state-of-the-art developments in long-term care. And the potential for high quality of care is enhanced by sharing with facilities the State's expertise on best methods and practices for complying with regulations.

    Recommendation 4-D: The Governor and the Legislature should revise restrictions on RCFE medication practices while at the same time safeguarding consumer protections.

    The elderly are a population that is already at risk for over-medication and incorrect usage of medication. But a system that requires event-by-event phone calls to physicians for permission to provide residents with over-the-counter cough medicine and aspirin seems to serve no one's best interests.

    Recommendation 4-E: The Governor and the Legislature should couple a strengthened process for protecting residents from unwarranted evictions with the creation of a limited probation period when a resident can be asked to move without cause.

    While residents should be protected from summarily being forced from a facility, RCFEs also should have tools at their disposal to ensure that residents can live together comfortably.

    Recommendation 4-F: The Governor and the Legislature should request that the federal government restructure its health information collection process to include specific data on residential care facility residents.

    The federal government should be encouraged to use the Census process to collect data on people who live in different types of out-of-home arrangements. In addition, the federal government's American Housing Survey suffers from the problem of lumping together everyone who lives with more than five unrelated people (including college dorms and half-way houses) rather than examining information by specific categories.






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