Caliber of (assisted) living

ANSI-accredited trade association causing turmoil

Nev's Health Law

Neville M. Bilimoria

Neville M. Bilimoria is a partner in the health law practice group, in the Chicago office of Duane Morris.
NMBilimoria@duanemorris.com

November 2019

Turmoil and controversy is surging currently in the assisted living provider community. On Sept. 23, one of the top four long-term care/senior living national trade associations, Argentum, formerly known as the Assisted Living Federation of America, gained approval from the renowned American National Standards Institute to become an accredited standards developer for senior living, including independent living, assisted living, memory care and continuing care communities.

This would allow Argentum, a private association, to develop standards recognized for the assisted living community nationwide.

The other three leading associations in the U.S., the American Seniors Housing Association, the American Health Care Association/National Centers for Assisted Living and LeadingAge, are objecting to the Argentum standards.

They believe the development of such private, volunteer standards by Argentum will lead to further plaintiffs’ lawsuits that utilize these standards and to federal regulation of assisted living facilities, something most providers fear.

In 2015, Argentum announced efforts were underway to develop standards for its independent living, assisted living and memory care community members to meet. These standards were designed to complement existing state laws and regulations governing the operation of senior living communities caring for our nation’s elderly population. According to Argentum, it launched its pilot program in 2015 with more than 2,000 senior living communities as participants.

This culminated in Argentum’s April 5 application to ANSI to seek accreditation as a standards developer for the entire business. The application gained the ire of the other three associations, who claimed they were not properly consulted in the development of those standards, despite meetings and requests to Argentum.

The controversy

On Sept. 23, to the surprise of the other trade associations, Argentum’s application was approved, paving the way for Argentum to implement and spread its standards with the backing of the institute’s name nationwide.

The controversy in the marketplace is the idea of increased risks being posed by these voluntary, unilateral trade-association standards.

For one, voluntary private standards can be used as a benchmark for quality and care by plaintiff’s attorneys seeking to sue providers for malpractice events, negligence or substandard care.

If you know anything about the assisted living industry, it is currently being plagued by a morass of plaintiff lawsuits against assisted living providers for negligence against residents within these facilities, akin to the same plaintiff activity and feeding frenzy against skilled nursing homes that ravaged the industry in the 1990s.

Non-Argentum trade associations believe the standards will create an artificial standard of care (one the other three trade associations do not want right now) which imposes higher standards of liability on providers, not to mention standards which some providers will not utilize because they will not adopt the ANSI-approved standards.

If there is one thing providers have relied upon over the years to deliver successful care to seniors, is its distinction in the industry as a provider that is not a skilled nursing home.

Not being a nursing home in today’s health-care environment meant not carrying the myriad rules and regulations that have plagued the industry and that have made it more difficult to deliver care, given the plethora of federal and state regulations. The Argentum/ANSI accreditation will only lead to further scrutiny and analysis by the government, which could lead to federal regulation, which is exactly what assisted living providers have touted as being the strength of the assisted living business: less regulations, because more regulations would bog down facilities and would prevent them from delivering quality care.

Associations like AHCA/NCAL point to quality award programs and existing state-assisted living laws which adequately protect and reward quality, obviating the need for any unilateral standards, much less federal regulation.

The associations also point out that past businesses that have developed their own private standards have experienced scary results, including increased liability from plaintiff lawsuits as a result of those standards and eventual further regulation, which could impede the assisted living community as a whole.

One would think that one trade association out of four would not have the power to achieve approval of generating an accreditation for national standards, but that’s exactly what happened. Many have explained that Argentum does not even have the buy-in of its own members, much less buy-in from the other associations, in the development of its self-imposed quality standards.

On the flip side, Argentum argues in its 2018 white paper, “A Collective Voice on Quality: Voluntary Industry Standards,” that development of voluntary standards provides “an opportunity to drive our own destiny, whereas inaction will defer the issue to other less informed or well-intentioned stakeholders,” i.e., federal regulators who may not understand the assisted living business.

In essence, Argentum believes it is creating its own destiny by jumping ahead in creating these standards before anyone does it for them.

Some would say that federal regulation is coming in the field and that providers need to deal with that fact. Argentum has embraced that view. Many argue that Argentum and its good intentions behind the standards will only backfire and lead to further liability and a morass of regulation.

The debate continues.