Birth of an Assisted Living Law

“There was, however, fundamental and philosophical agreement within this coalition of key legislators, AARP representatives, state agency personnel, KALFA leaders, other consumer groups, individual consumers, regulators and senior service providers on the central issues: Assisted living clients in Kentucky deserve a preferred residential housing and service arrangement that promotes independence, dignity and choice. And any recommended government oversight must be delicately balanced with consumer preferences.

“Fifteen months later, after a combined 60-plus meetings, testimonies and statewide forums, House Bill 148 (“An Act Relating to Assisted Living Communities”) was enacted into law during Kentucky’s 2000 General Assembly. In the interim, there were no lawsuits, no negative press conferences, no emergency board meetings and no defensive lobbying. The coalition remained intact because consumer choice and protections remained our guiding principles.

“For example, consider some of the terms used in Kentucky’s assisted living statutes:

‘Client, not patient;
‘Community, not facility;
‘Living unit, not bed;
‘Move-out, not discharge;
‘Lease agreement, not provider agreement; and
‘Certification, not licensure.

“The AARP, State Rep. Robert Damron and State Rep. Susan Westrom championed the legislation, and it was cosponsored by half of the House of Representatives.”

“Many of my colleagues in AARP Kentucky were discovering assisted living and shared my enthusiasm for the concept. It became clear to our state legislative committee that AARP Kentucky needed to assume a leadership role in securing the enactment of legislation that would protect both the consumer and assisted living provider. The public, hungry for alternatives, could otherwise be vulnerable to an operator who might seize on the name ‘assisted living,’ but fail to live up to the commitment. Of equal concern to us was that well-intended state regulators might slowly force assisted living into a ‘quality of care’ regulatory mode and lose sight of what the consumer values most: quality of life.

“In a very unusual move by a provider trade association, KALFA suggested we join forces and work for the passage of consumer-focused assisted living certification legislation. Some 15 months later, after intense work by many stakeholders and the cooperation of key members of the Kentucky General Assembly, such a law was passed by the 2000 legislature. One legislator described the guiding philosophy of the legislation as being, ‘Consumer satisfaction is our most important product.’
“The legislation revolved around three major issues:

‘Empowering the assisted living client to directly arrange or contract for a wide array of social and/or medical services as individual needs change;
‘Balancing safety with autonomy by permitting clients to participate in activities and lifestyle choices that might present some risks, just as we all do in our own homes; and
‘Ensuring each client’s privacy through a separate living unit with lockable door, bathroom and individual thermostat controls.

“By maintaining a focus on consumer choice and satisfaction, AARP Kentucky and KALFA have been privileged to witness the implementation of a mandatory assisted living certification program that is good for Kentuckians and good for the industry.”

Kentucky State Rep. Robert Damron: “HB 148-An Act Relating to Assisted Living Communities-was legislation that was long overdue. As a result, my colleagues in the Kentucky General Assembly strongly supported the legislation during the 2000 General Assembly. I believe there were three reasons the legislation was successful and so overwhelmingly supported by the members of the Kentucky legislature.

“First, the legislation was developed through numerous meetings of the key stakeholders (consumers, industry representatives and regulators) with a consensus being reached prior to introducing it. This process took months of hard work among the participants, but resulted in a better understanding of the issues and how we could best address them by working together.
“Second, prior to the legislation being introduced for consideration by the General Assembly, the stakeholders held statewide forums to discuss the specific proposal and accept feedback from all in-terested persons. These forums were also instrumental in developing solid grassroots support for the legislation.

“Third, the stakeholders supporting the legislation remained flexible and willing to accept additional ideas and changes as it moved through the legislative process. While remaining united, these stakeholders respected each other’s positions and presented a unified front in support of the legislation and any changes that were agreed to during the process. In other words, the stakeholders agreed to jointly support or jointly oppose proposed changes.

“As a result, there was a united front (consumers, industry and regulators) that did not allow any competing interest to divide and conquer. I think the willingness of all three groups to compromise for the end result was the key to our success. I give all the credit for our success to the leadership of AARP Kentucky, KALFA and the Kentucky Office of Aging Services.”

“In directing Kentucky’s Office of Aging Services to certify assisted living communities, the requirements clarify what the Office must consider when conducting certification reviews. Some of these factors include the physical design, services and staff training, as well as consumer independence, autonomy, dignity and decision making.

“We are required to perform a thorough review of the core lease agreement to be executed between the consumer and the assisted living community to ensure that the responsibilities of both are clearly described. The law further requires that both the assisted living community and the Office provide consumer literature that will assist a person in selecting an assisted living community. Therefore, it is clear that Kentucky’s new statutes and regulation require the certification reviews to focus on those provisions that promote consumer choice and consumer protection.”

Jenny Mateyoke, director of operations, Health Solutions, LLC: “To the question, ‘What about proposed new

statutes for Kentucky’s unregulated assisted living industry?’ we heard a loud ‘Oh, no!’ That was the initial response two years ago from many assisted living providers and state regulators.
“However, in retrospect, we are now able to ask the same question in more meaningful ways:

‘What about a process of developing statutory language that unites lawmakers, consumer groups, regulators and providers in a spirit of cooperation?
‘How about statutes that clearly define assisted living services for consumers and ensure full disclosure by providers?
‘What if we support legislation that protects client privacy, choice and dignity?

“Kentucky’s unprecedented development and enactment of consumer-driven assisted living statutes and regulation have resulted in lasting partnerships among consumer groups, lawmakers, regulators and providers. The Office of Aging Services was designated as the state agency to coordinate the certification review process. The Office’s cooperation reinforced open communication between consumer groups and providers, and has also stimulated consumer education on other issues facing seniors.

“The mandatory certification review process put providers on a level playing field. The consumer protection sections of the law prohibit providers from marketing ‘special’ services, such as dementia care, that are not supported by proof of specialized training and staffing. Furthermore, the law has clarified what services can be rendered to a client, such as assistance with self-administration of medications. It further offers clarification by way of definition so that providers have a better understanding of what is expected of them.
“The new requirements establish the framework for ensuring that Kentucky assisted living communities provide quality services for clients through staff in-services and orientation education on topics such as the aging process, assistance with self-administration of medications, and reporting alleged adult abuse and neglect. Furthermore, communities are required to conduct criminal record checks on employee applicants. KALFA has taken the process one step further by providing recommended ‘Best Practice’ guidelines to the industry, a number of which are far more stringent than the law.
“So, let’s ask again: New statutes for Kentucky’s assisted living industry? Oh, yes! Now we all know and appreciate why.” NH

John Underwood, the KALFA executive director who organized this colloquium, is also president of Consultants for Long Term Care, Inc. For further information, phone (502) 420-9850, fax (502) 420-9855 or e-mail: john@cltcinc.com.