Assisted living communities would be required to report confirmed or suspected cases of COVID-19 to federal, state and local health officials, as well as to residents and their families — and would have one day to do it — under legislation announced Thursday by two U.S. senators and one congresswoman.

The report on which the bill is based, however, “falls short” and is “misleading,” according to one association representing operators.

The Assisted Living Facility Coronavirus Reporting Act, introduced by Sen. Elizabeth Warren (D-MA), a member of the Senate Health, Education, Labor, and Pensions and Aging committees; Sen. Edward J. Markey (D-MA); and Rep. Carolyn B. Maloney (D-NY), chairwoman of the House Committee on Oversight and Reform, also would subject assisted living communities to the same reporting requirements established for nursing homes by the U.S. Department of Health and Human Services “to the extent practicable.”

Additionally, the legislation, if passed, would require states to report to the Centers for Disease Control and Prevention historic and weekly COVID-19 data for every assisted living community and would require the U.S. Government Accountability Office to issue a report, within two years, with recommendations for improving COVID-19-related reporting for congregate care facilities.

‘First comprehensive survey of COVID-19 in assisted living’

The lawmakers introduced the bill after conducting what they said is “the first comprehensive survey of COVID-19 in assisted living facilities” after having requested in late April that the CEOs of 11 large senior living companies — Affinity Living Group, Atria Senior Living, Brookdale Senior Living, Capital Senior Living, Enlivant, Eclipse Senior Living, Five Star Senior Living, Gardant Management Solutions, LifeCare Services, Senior Lifestyle Corp. and Sunrise Senior Living — detail the extent of COVID-19 at their communities and the actions they were taking to prevent or mitigate the disease.

The responses, according to the members of Congress, indicate that:

  • 24% of the assisted living communities have had at least one case of COVID-19 among residents, and approximately 8% of the communities have had outbreaks of at least 10 cases.
  • 2.9% of the residents had tested positive for the disease as of May 31, a rate that is more than five times the overall national average.
  • 43% of the residents with COVID-19 were hospitalized.
  • 31% of the residents who tested positive died, a rate that is approximately six times the national average, is “comparable — or even higher than — the fatality rate for nursing home residents with COVID-19,” and suggests that more than 7,000 residents may have died from the disease as of May 31, representing one out of every 15 COVID-19 fatalities up to that point.

In a press release announcing the legislation, the lawmakers also cited inadequate sick leave policies for employees, lack of routine testing and inadequate testing protocols, and shortages of personal protective equipment in assisted living communities.

‘These facilities need more federal support’

The members of Congress called for more federal oversight of assisted living communities but also more support.

“The coronavirus pandemic has made painfully clear that the federal government must do more to protect residents of assisted living facilities,” Maloney said. “Our investigation has revealed that at the most basic level we need more transparency into the crisis playing out in these facilities — and that these facilities need more federal support to access the testing and PPE they need to keep residents safe.”

Warren, whose brother Donald recently died after contracting coronavirus at a rehabilitation facility, made similar remarks.

“Our investigation found assisted living centers are facing a COVID-19 crisis that is almost as bad as the crisis in nursing homes — but without being subject to the same regulations or oversight, and with no help from the federal government,” she said, calling for “strict data collection and reporting requirements” to enable policymakers, public health officials and assisted living residents and their families to “make the right choices about how to save lives during the COVID-19 pandemic.”

And Markey said: “This report confirms that, just like nursing homes, assisted living facilities present significant risks for coronavirus infection and outbreaks of COVID-19. The federal government needs to ensure that these facilities are actively monitored for potential outbreaks and are getting the test supplies and personal protective equipment they need to prevent outbreaks. We need to put in place stricter requirements on these facilities so that they are better prepared to protect our beloved family members.”

Associations hopeful for more resources

Associations representing the industry said they hoped the lawmakers’ report would help assisted living operators obtain the resources they need to fight the coronavirus.

The American Seniors Housing Association, however, said the report “falls short” by comparing COVID-19 cases in assisted living to those in the general population, even though assisted living residents “have much different rates of cognitive and functional impairment than the general population. In fact, the prevalence of certain chronic conditions among this population creates a higher risk for poor outcomes from COVID-19 compared to those in private housing in the community.”

Additionally, ASHA said, the report is “misleading” in suggesting that assisted living providers are deficient in reporting their COVID-related incidents just because there is no federal requirement to do so. “The reality is, however, that assisted living oversight takes place at the state level,” the association said. “Assisted living settings across the country are regularly reporting COVID-related incidents to their state and local health departments.”

Also, ASHA said, the report does not mention “numerous and significant steps” that operators have taken to mitigate the risk and spread of infection since the pandemic began. “[A]ssisted living operators halted or greatly curtailed new move-ins, initiated hero pay and other incentives to reward dedicated staff members for their commitment to provide necessary resident care and services, enhanced cleaning and infection control protocols, stopped outside visitation, delivered meals to residents in their apartments, and worked creatively to engage residents to avoid the harmful effects of isolation,” the association noted.

National Center for Assisted Living Executive Director Scott Tittle noted that caregivers have been “performing heroic work” since the pandemic began.

“But the fact of the matter is that assisted living communities have not received the same level of support as other facets of our healthcare system. That is why we have called on Congress and the Trump administration to dedicate specific funding for assisted living communities and provide other assistance such as personal protective equipment, testing and staffing support,” he said. “This is an unprecedented threat, and there is no cure all, but if we receive the support we need from all levels of the public health sector, we can better safeguard residents in our care.”

Argentum President and CEO James Balda also pointed out that the assisted living industry “still desperately needs financial assistance in the form of financial relief and added resources for PPE and testing.”

“Assisted living operators have leveraged innovation and partnerships in procuring and securing critical PPE to protect their residents and staff, saving countless lives,” he said. “But, in accordance with the report, we believe the federal government needs to take a more active role in providing these essential resources.”

Balda said Argentum would continue to encourage members to report COVID-19 data to the state governments where they operate.

“[W]e continue to believe that openness and transparency are critical to maintaining the valued trust of senior living residents, families, employees and the public,” he said.

A LeadingAge spokeswoman referred McKnight’s Senior Living to a May 5 letter that LeadingAge President and CEO Katie Smith Sloan had written to leaders of the Senate and House. In it, she said in part that “Congress must prioritize all [long-term services and supports] providers … for PPE, testing and other necessary infection control supplies to ensure safety.”

Many of the 11 operators who provided data for the lawmakers’ report, when contacted by McKnight’s Senior Living, either said they had no comment or referred to the statements from ASHA and/or Argentum.

A spokeswoman for LCS, however, said, “Through our prompt implementation of visitor restrictions, proactive resident education programs and staff training on new protocols aligned with CDC and local health officials’ recommendations, we are helping to reduce our communities’ risk of exposure to COVID-19.”

Read Warren, Markey and Maloney’s report here. Read the text of the bill here.

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