This memo briefly describes the legislative initiative designed to expand Kentucky’s assisted living (AL) social model to align more closely with the vast majority of states, allowing more services to be delivered to seniors. Once accomplished, KY assisted living providers will be able to choose whether to provide basic health services in an environment that allows and encourages meaningful aging in place.
The initiative involves the Coalition Partners, a task force created to develop consensus and a united industry front. The Coalition Partners are Kentucky Senior Living Association (KSLA), KY Assn. of Health Care Facilities (KAHCF)/KY Center for Assisted Living (KCAL), and LeadingAge Kentucky.
The KSLA members on the Coalition are:
Meetings have taken place with leadership of KY Cabinet for Health and Family Services (CHFS) including the Cabinet Secretary, the Inspector General (current and former), and the Commissioner of the Dept. for Aging and Independent Living (DAIL).
Other associations and industry leaders have been consulted and will continue to be.
The following describes the consensus changes to the current assisted living parameters agreed upon by the Coalition Partners:
a) Broadly defined Assisted Living license
i) Broadly defined AL would merge social and basic health services models. A provider could deliver the entire array of permitted services to a resident, from assistance with activities of daily living (ADLs) (current KY social model) up to and including the maximum care currently allowed in Personal Care (PC) without regard to physical location of apartment. A provider could elect to self-limit and only have residents who need social model-type services. Care plans would define services to be received, and physician orders would be required for delivery of health services.
b) + Optional Memory Care (MC) license
i) To have a Memory Care unit, obtaining a MC license and having a distinct part would be required. The building would be licensed as and referred to as “assisted living + memory care”.
c) This streamlined approach has much to recommend it, not the least of which is less confusion/more clarity for the public. It also fully embraces the concept of aging in place by being able to meet the changing needs of AL residents in their apartment without having to move unless necessitated by going to MC unit or exceeding basic health services limit. The approach still protects a provider’s ability to choose how much care to offer within the parameters of a broad definition of AL.
d) Social model services (assistance with ADLs akin to current AL regulations) and basic health services* would be delivered to a resident without regard to their apartment’s location. A resident could remain in his/her apartment as needs increase up to maximum care allowed (equivalent to KY PC maximum care) without having to change location. The care would be person-centric as defined by needs articulated in care plan, rather than licensing distinct parts of a building. The only exception is that MC would be delivered in a distinct part controlled-egress unit.
e) Physician orders would be required for the delivery of specific health services.
f) Consumer-driven landlord/resident relationship would be maintained with the goal to remain as non-institutional as possible.
g) Staffing must be sufficient in quantity and qualification to meet the needs of the residents. Should a provider choose to only serve low-acuity residents, staffing would be different (less, perhaps in both quantity and qualification) than what would be necessary if basic health services were being delivered.
h) No certificate of need (CON) requirement or inclusion in biennial state health plan for any level of AL.
i) This initiative is designed to update AL, not its payor source. Pursuing a Medicaid waiver would almost certainly be impossible now, given budget realities. KY AL remains a private-pay model pursuant to these proposed statutory changes.
j) All AL components would be regulated by the agency that is equipped to regulate delivery of health services, presumably Office of Inspector General (OIG). From a practical standpoint, CHFS will make this call. Historically, Department for Aging and Independent Living (DAIL) has regulated certified providers that do not deliver health services, while OIG has regulated licensed health care. Assisted living would be moving from the former category into the latter group upon statutory changes occurring that enable AL providers to deliver basic health services. Hence, it is likely that CHFS would see OIG as the agency of choice.
Critical to this undertaking is ensuring that the primary assisted living statute to be amended continues to be the repository of virtually all the substance, with regulations only providing clarification. Unlike an enabling statute with regulations having the substance, the original AL statute was drafted to incorporate all matters of import, making it much more difficult for the enforcement agency to make significant changes by regulation. That approach has served KY AL providers well for the last 20 years since passage of the initial AL statute. Since statutory language controls when there is any conflict with regulations or an attempt to over-reach by regulation, drafting these changes will be done in the same detailed manner. It will be essential for the associations to stay at the table after passage of the bill is achieved to work closely with CHFS to develop the clarifying regulations.
Efforts will be made to grandfather existing buildings regarding most, if not all, physical plant requirements.
A time period may be written into the statute to enable providers and the regulatory agency time within which to move from one regulatory environment to another, easing the transition.
Additional work includes refining details of the bill; working with the Legislative Research Commission to draft the bill; seeking support from additional key organizations; continuing to communicate with CHFS; advocating for passage of the bill; and following passage, working with CHFS to develop the clarifying regulations.
The goal is to pass the bill during the 2021 legislative session. Due to the impact that COVID-19 has had on all concerned, and the fact that 2021 has a short legislative session during which a one-year state budget will have to be passed, it is possible that achieving the goal could take longer.
*Basic health and health related services as defined in KY’s current PC regulations include supervision and monitoring of the resident to assure that the resident's health care needs are met; administration and supervision of self-administration of medications; storage and control of medications; and arranging for therapeutic services ordered by the resident's health care practitioner. Skilled nursing services are not included.