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ATLANTA — Assisted living and life plan communities have had much to deal with in the past 18 months, including fair housing challenges, vaccine mandates and exemptions, COVID-19 liability lawsuits, minimum wage hikes and federal workplace safety regulations.
“COVID highlighted issues facing assisted living and its place within the continuum,” LeadingAge Vice President of Legal Affairs and Social Accountability Cory Kallheim said. States are looking at gaps and potential areas to legislate or regulate, he added.
Kallheim led a panel discussion Monday during the LeadingAge Annual Meeting + Expo. Participants shared strategies for delivering care and services while complying with complex policy requirements.
Workplace safety
Regarding workplace safety, in June, the U.S. Department of Labor’s Occupational Safety and Health Administration issued new rules for assisted living communities and other healthcare settings, and they cover everything from hazard assessments to written plans to mitigate the spread of the coronavirus to personal protective equipment requirements to cleaning and disinfecting protocols.
Kallheim said the standards, which affect an estimated 10.3 million healthcare workers, technically expire in mid-December. And although OSHA has no plans to extend them, the agency may create a permanent rule. Ultimately, he said, assisted living communities already were performing 90% of the requirements.
Vaccine mandates
A federal COVID-19 vaccine mandate forecast to affect more than 80 million workers in private-sector businesses also is imminent after the Labor Department submitted the initial text of an emergency temporary standard to the White House earlier this month.
As part of President Biden’s six-point COVID-19 action plan announced in September, employers with 100 or more workers soon will be required to ensure that their workforces are fully vaccinated against coronavirus, or workers will need to produce a negative COVID test result at least weekly.
The industry also is awaiting an “imminent” mandatory vaccine requirement from the Centers for Medicare & Medicaid Services for healthcare settings that receive Medicare and Medicaid reimbursement. The action builds on the vaccination requirement for nursing homes announced in August.
Panelist Vassar Byrd, Rose Villa Senior Living Community president and CEO, said her Portland, OR, community is not providing accommodations to employees who request medical or religious exemptions, saying that personal protective equipment and active testing “are not acceptable, particularly in personal care areas.” Of Rose Villa’s 200 employees, 16 were not vaccinated when the community rolled out a mandate. Of those 16, four chose to leave the company and the employment of another four was terminated.
With a Nov. 1 vaccination deadline looming at Frederick, MD-based Asbury Communities, panelist Andy Joseph, the operator’s general counsel, said the provider offered education and weekly cash prizes, subjected executive directors to pies in the face and had one-on-one conversations with employees to nudge their vaccination numbers higher. As of last Friday, he said, 117 staff members still were unvaccinated.
Asbury’s clinical team also decided to accept a COVID antibody test result as proof of protection. Employees who had a COVID infection, recovered and can produce a test result showing they have antibodies to the virus are not subject to the vaccine requirement or enhanced safety protocols.
Liability
Although the industry was unsuccessful in securing COVID liability protections at the federal level, the Public Readiness and Preparedness (PREP) Act did provide some protections, and many states implemented temporary protections during the public health emergency, Kallheim said.
Challenges to the PREP Act are making their way through the courts. Last week, a federal appeal court rejected a nursing homes’ argument that the PREP Act demanded that COVID-19 negligence claims belonged in the federal court. The appellate court sent the case back to the New Jersey state court. Kallheim called it a “small defeat,” adding that he is not optimistic that the PREP Act will be a huge help for providers.
He also cautioned providers to pay attention to expiration dates coming up on some state protections. Other states have moved to roll back protections. And he said he is seeing an uptick in cases being filed, as well as increased advertising from plaintiffs’ attorneys who are finding creative ways to get around COVID and the PREP Act.
Providers can help their cases by documenting the timeline of implementation of policies and procedures, as well as offering a clear explanation of why and how policies were changed during the pandemic.
Minimum wage
State and federal minimum wage policies are creating a “brutal experience” for many providers, according to Byrd.
Oregon’s $15 minimum wage affected Byrd’s entire company, creating an “incredible compression on wages,” she said.
“Our wage issues are severe, and we’re trying to figure out how to pay the wages we need to and not have a gigantic fee increase,” Byrd said. “We have reorganized the company to do more things with less staff.”
With younger, more active residents on her campus, she said, many are taking leadership roles in activities. Management has disappeared from the equation, although a coordinator remains in place.
Fair housing
When it comes to fair housing areas of concern, Kallheim said that senior living has experienced challenges related to admissions and applicant screening, advertising and marketing, website accessibility, reasonable accommodations, use of facility issues related to mobility devices and service animals, and transitions and evictions.
Two areas seeing an uptick in complaints involve website accessibility for individuals with sight impairments, and denials of sign language interpreters for prospective residents or family members with hearing impairments.
Staff training is imperative to avoiding fair housing claims, he said.
“The key with training is to not only do fair housing training for your regular staff, but also do it for staff working on the weekends,” Kallheim said. “Testers are smart. Make sure you have everybody trained and spend more time on training partners.”
