Assisted living law stirs controversy in North Carolina

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North Carolina
North Carolina

Adult care home survey deficiency and penalty legislation signed by North Carolina Gov. Pat McCrory June 30 has upset some advocates for assisted living residents, but the leader of an association representing providers told McKnight's Senior Living that those who are unhappy misunderstand the law's effects and the history behind its changes.

The law, formerly known as H.B. 667, eliminates the Penalty Review Committee of the state's Division of Health Service Regulation, which had been meeting since the late 1980s to discuss proposed penalties and fines against assisted living facilities. The law also defines some terms that were included in a 2001 law.

Consumer advocates told the North Carolina Health News that doing away with the committee would reduce supervision of facilities as well as penalties and public access to information about facilities found to have violated rules. The president and CEO of the North Carolina Assisted Living Association, however, said that some people, including editorial writers for the News & Observer, do not seem to realize that the committee was never meant to be an oversight panel.

“The purpose originally was so that the providers could present their cases to the Penalty Review Committee. ...They were able to submit additional information that the surveyor might not have had that they would like the committee to consider as it was making a decision,” Frances Messer said. Providers affected by committee recommendations did not include nursing homes, as some local media outlets have reported, she added, although the committee did include a nursing home representative.

The committee would begin its work after the division's Adult Care Licensure Section imposed penalties on adult care facilities, Messer said. Members would meet to listen to facilities present additional facts and then would recommend to the section chief whether to keep the penalties proposed by the state survey agency and whether to eliminate, keep the same or increase or decrease the proposed fines.

“Or they could suggest training in lieu of the fine,” Messer said. “But this committee was only an advisory committee. It was not an oversight panel.” The section chief made the final determination regarding penalties and fines, she added.

Although families and others could attend the monthly committee meetings, Messer said she knew of only three families — and maybe fewer — who had done so in the past year. Messer, a member of the committee from 2009 to 2013 when she worked for the section as an advice nurse, had continued to attend the meetings afterward because some NCALA members had hearings.

The public still will be able to access statements of deficiencies or inspection reports, state ratings and penalties imposed in the past three years on the section website, Messer said.

Now that the committee has been dissolved, the leader of the Argentum state partner organization said, the state process for penalizing and fining assisted living communities likely will remain the same except that the section chief will make her determinations without input from the committee.

“It's going to help the providers in expediting all these back cases,” Messer said, adding that operators often had to wait more than a year for a hearing due to the case backlog, despite committee meeting frequency being changed from twice a year to once a month several years ago.

“In theory, the abolition of the PRC should mean that providers will be aware sooner of penalties assessed by the department and be able to appeal them where appropriate and either try the case or seek informal resolution or settlement,” according to NCALA's law firm, PoynerSpruill. “It may also mean that penalties that are not reduced must be paid sooner by providers.”

Defining terms

Another controversial provision of the new law defines “substantial risk,” a standard used to assess penalties when the state determines that violations have occurred.

“As passed, the bill … creates a high barrier for ‘substantial risk,' ” according to the North Carolina Health News. Messer, however, said that the law merely defines the term.

“In 2001, in H.B. 1068, there was a long list of definitions that the North Carolina legislators told the Department of Health and Human Services [of which the division is a part] to define for providers, because those terms are used in the penalty language, and they had never been defined,” Messer said. “We're 15 years later, and those terms had not been defined. Substantial risk was one of those terms. So without having a definition of substantial risk is, that led to the state having free interpretation of substantial risk.”

The bill text defines the term to mean “the risk of an outcome that is substantially certain to materialize if immediate action is not taken.” PoynerSpruill predicts that the existence of a definition will lead to more providers challenging what are known as A2 citations from the state, “described in current law as 'a violation of the regulations, standards or requirements ... which results in substantial risk that death or serious physical harm, abuse, neglect or exploitation will occur.' ”

Messer said that NCALA plans to look at additional terms that were included in the 2001 law but never were defined.

In the end, providers and families want the same thing, Messer said: To know about noncompliant facilities and for those facilities to understand their violations so that they can correct them and prevent them from happening again. 

“I have been actively working in extended care or long-term care for over 50 years, both as a provider and as a state regulator and now as the association leader,” she said. “So I really am passionate about what we do, and I am passionate to get the message out that we are all — providers and regulators and advocates — we're all advocates for the residents.”

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