Assisted living facilities are the new nursing homes. Oversight falls short.

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In July 2022, a partially paralyzed and “nearly bedridden” 75-year-old man in a wheelchair fell in his bathroom at Albuquerque Uptown Assisted Living, fracturing his hip, according to court filings. 

But instead of staff immediately calling an ambulance for the man, who “required assistance in all aspects of his life,” he remained at the facility “in significant pain” for three weeks, his estate’s wrongful death lawsuit alleges.

Eventually, the lawsuit says, he was taken to Presbyterian Hospital, where the elderly man was diagnosed with blunt pelvic trauma and a broken hip. He subsequently developed severe bed sores and infections. He was taken home, where his obituary says he died on October 1, 2022, his wife of 35 years at his side. 

When the family’s attorney sought the man’s medical records, court documents claim, Uptown administrators said they did not have them. The man’s family could not be reached before publication of this story, and an Uptown official refused to answer New Mexico In Depth’s questions. 

If the man’s case prompted scrutiny from state regulators, their report doesn’t appear in the health department’s health facilities inspection reports database. According to that system, which a health department spokesperson said is incomplete, the last time the state inspected Uptown was in September 2020 via a virtual survey of COVID-19 infection control practices. 

Regardless of how the incident played out, an expert said the description of the man’s needs suggest he didn’t belong in an assisted living facility. 

“Assisted living generally provides help with more ancillary services, not the kind of nursing services that this person needed and that a nursing home typically provides,” said Richard Mollot, executive director of the nonprofit Long Term Care Community Coalition (LTCCC), a New York-based patient advocacy group. 

The experience described in the wrongful death lawsuit is not unique. Many assisted living centers across the state have fallen short of the mark on resident safety, and instances of neglect and delayed medical attention are prevalent, New Mexico In Depth found in a review of complaint investigations, inspection reports, and court filings for 215 facilities with nearly 6,000 beds.

Facilities are frequently cited for slipshod recordkeeping, delayed care, inadequate staff and staff training, failing to conduct criminal background checks for new employees or report staff to the state health care abuse registry. 

As older New Mexicans with greater needs than residents from previous eras populate assisted living facilities, federal and state oversight has not kept pace. 

The federal government requires regular inspections of nursing homes. It also requires nursing homes to report their daily staffing levels and critical incidents like fall injuries or unexpected deaths. 

But there are no such requirements for assisted living centers, despite repeated recommendations from the U.S. Government Accountability Office (GAO), a federal watchdog agency.

New Mexico has struggled to fill that gap, with regulations that miss important oversight components. 

The state is not alone. Nationwide, bare-bones staffing, poor training, and low pay have led to chaotic care at poorly regulated assisted living facilities. Medications are missed, falls and bed sores go untreated and unreported, and residents are frequently neglected or abused. Residents wander away from facilities unnoticed, sometimes dying lost and alone.

“Unfortunately, this is just all too common across the country,” said Hari Sharma, Ph.D., an assisted living researcher and assistant professor of Health Management and Policy at the University of Iowa. 

Cost of care leads people to assisted living over skilled nursing facilities

Assisted living facilities, sometimes called ALFs, were originally more like retirement villages than nursing homes. First created in the 1970s, they were meant to help active older adults and people with minor disabilities maintain their independence, providing privacy and security in a home-like setting with assistance as needed for day-to-day tasks, like preparing meals, managing drug prescriptions, or laundry and room cleaning. 

They did not offer the intensive, long-term care provided by skilled nursing homes for frail elderly people or those with profound disabilities. 

But decades later, that has changed. 

“There has been a broader shift in demographics of individuals residing in ALFs,” Sharma told New Mexico In Depth. “More and more folks with more care needs are going to ALFs when they would traditionally go for skilled nursing facilities.”

That may be due, in part, to the cost of care. The median cost in 2023 for assisted living residents in New Mexico will be an estimated $5,450 per month, compared to $10,007 per month for private rooms at skilled nursing homes, according to the widely cited Cost of Care Survey conducted by Genworth, a national long-term care insurance company.

Patients who, critics contend, should be at skilled nursing facilities are opting instead for assisted living. 

Today, many assisted living facilities care for the most vulnerable. At least 40% of assisted living residents nationwide have dementia or cognitive impairments, and at least half are 85 or older, compared to 42% of nursing home residents, Mollot testified this January before the Senate Special Committee on Aging, which held hearings about quality of care, patient safety, and the assisted living industry’s lack of accountability or federal regulatory oversight.  

While a handful of assisted living centers have skilled nursing wings, most do not. (New Mexico In Depth’s analysis of state investigations, inspection surveys and citations only included assisted living facilities and excluded any skilled nursing units.) Some also have memory care or dementia units, although the state does not know how many, according to health department spokesperson David Morgan.

Feds are “hands off” 

To be sure, not all assisted living facilities are problems. But they remain much less regulated than nursing homes. The federal government does not oversee them or require the daily reporting of staffing levels or payroll data that skilled nursing homes must provide, and state and federal health agencies do not collect assisted living facilities’ expense or profit data. Nor does the U.S. government inspect or monitor safety at assisted living facilities. 

Oversight falls to the states, but they, too, are less rigorous with assisted living centers than skilled nursing homes. “While nursing homes are required to have regular inspections every 12-15 months, most states do not have a regular inspection program for ALFs,” Sharma said. 

In 2018, the U.S. Government Accountability Office (GAO) called for better federal oversight of federally reimbursed assisted living facilities, reporting that state Medicaid agencies spent more than $10 billion a year on the industry but did not monitor patient safety and welfare, or critical incidents at these facilities. 

The GAO recommended the U.S. Centers for Medicare & Medicaid Services establish standard reporting requirements for states regarding situations endangering residents’ health, safety and welfare, or lives. More than six years later, that recommendation still has not been adopted.

“As seniors experience longer lifespans with chronic conditions, notably dementia, the susceptibility of this demographic has heightened,” Mollot testified before senators in January. “Despite the escalating needs and vulnerabilities, the federal government has consistently adopted a ‘hands-off’ stance, and state regulations are generally characterized by weakness and lax enforcement.”

State hasn’t filled regulation void

In New Mexico, 12 full-time staffers at the Department of Health’s Division of Health Improvement are tasked with inspections when a new facility applies for a license or when ownership changes hands, or to investigate complaints, Morgan said. The division also requires facilities to report critical incidents, which then spur investigations. 

But unlike their approach with skilled nursing homes, state inspectors do not conduct regularly scheduled onsite compliance inspections of assisted living centers. 

The federal government requires automatic reporting of data that shows daily staffing levels at nursing homes but not assisted living centers. The state does not track daily staffing levels for either. 

This prevents families from knowing if an assisted living facility routinely fails to maintain the required minimum staffing levels. Whereas, for nursing homes, a prospective patient could look at a federal online database or the LTCCC website for that information. 

The state not doing regular, annual inspections is an “unacceptable situation,” said Charlene Harrington, professor emeritus at the University of California San Francisco’s School of Nursing, a nationally recognized expert on long-term care facilities. “[I]t is the responsibility of the state to set minimum standards and carry out regular inspections, complaint investigations, and enforcement of the standards.”

The state maintains a database of inspections and investigations it does perform, for licensing or when it is alerted to problems.

New Mexico In Depth was not able to independently confirm the completeness of that database. Morgan, the health department spokesperson, acknowledged that updating the system “is a known area requiring focus” and a facility administrator told the news organization the database does not include their most recent inspection.

But taken at face value, the database that families depend on to understand the quality of assisted living facilities raises questions about state oversight. 

Aside from a flurry of mostly virtual COVID-19 related state inspections and interviews in 2020, 40% of the 215 assisted living facilities whose records New Mexico In Depth examined did not have reports in the database over the last four years. 

In state inspection reports about deficiencies that imperiled residents, there was frequently no follow-up documentation in the database showing inspectors confirmed problems were fixed. State regulations require corrective action plans to address deficiencies found at assisted living centers, but appear vague about whether inspectors are required to ensure those deficiencies are actually corrected.

Morgan did not directly answer New Mexico In Depth’s question about whether state regulations require inspectors to check that deficiencies are fixed. But he did say inspectors do follow up on deficiency findings, and that those inspections are supposed to be posted to the portal. 

“[I]f non-compliance is identified and cited as a deficiency, the facility must submit a Plan of Correction and a revisit survey is conducted in one of two ways: onsite or through offsite record review to verify compliance,” he explained in an email.

But for at least 77 assisted living facilities, a center’s most recent inspection report (many of which are now several years old) mentioned substantiated complaints or cited violations but no subsequent reports appear in the database. 

“It’s so troubling to think that the state is not going in on a regular basis to inspect these facilities,” Mollot said. “We don’t have the data, unfortunately, for assisted living. But we do for nursing homes — and what we’ve seen is that when there is less oversight, facilities tend to flaunt minimum standards even more.” 

Falling Short: Rebuilding elderly care in rural America Rural nursing homes across the country, already understaffed, face significant new federal staffing requirements. With on-the-ground reporting from INN’s Rural News Network and data analysis assistance from USA TODAY and Big Local News at Stanford University, eight newsrooms, including New Mexico In Depth, explore what the rule change would look like for residents in communities across America. Support from The National Institute for Health Care Management (NIHCM) Foundation made the project possible.

Feature illustration by Marjorie Childress for New Mexico In Depth

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