The Critical Need for State Regulation of Assisted Living Facilities: Defining “Critical Incidents,” Implementing Staff Training, and Requiring Disclosure of Facility Data

By Lexi Pitz. Full Text. 

Assisted living facilities are wildly popular among elderly Americans. This trend is expected to persist due to increasing life expectancy, an aging baby boomer population, and the growing preference for assisted living facilities over nursing homes. Despite their growing popularity, the assisted living industry remains alarmingly underregulated at both the federal and state levels.

The under-regulation of assisted living facilities has a significant impact on elderly health and well-being. In 2018, the U.S. Government Accountability Office shed light on the glaring inadequacies of Centers for Medicare and Medicaid Services (CMS) oversight of assisted living facilities. Essentially, the problem is that CMS regulatory requirements are vague, which allows state Medicaid agencies to vary significantly on important regulations surrounding “critical incidents” (a term used to refer to events that cause or have potential to cause harm to assisted living facility residents). This includes regulatory variation surrounding the tracking, reporting, prevention, and public disclosure of such critical incidents.

This Note proposes a three-part solution for state legislatures to abandon their reliance on the CMS oversight structure and, instead, enact legislation and designate responsible agencies to combat elderly abuse and neglect within assisted living facilities. Namely, this Note suggests states should: (1) adopt comprehensive and tiered definitions of “critical incidents,” (2) mandate staff training on abuse and neglect, and (3) mandate accessible public disclosure of facility data relating to critical incidents and safety. Ultimately, if implemented at the state level, these changes will allow states to tailor regulations to their unique populations and improve assisted living facility resident health and well-being.