In November, the Maine Department of Health and Human Services proposed the first major update to assisted living and residential care facility rules in more than 15 years. The scope of the changes came as a shock to many in the industry, and was met with an outcry from residential care facility operators, who said the associated costs could put them out of business.
This week, the department responded with a new proposal, watering down its staffing requirements and giving facilities two years to phase in the changes, according to documents obtained by The Maine Monitor.
“It is apparent that increased staffing, nursing, and documentation requirements are needed to ensure the health and safety of residents, in terms of the increasing acuity of resident needs, and in light of the frequency and severity of complaints related to non-compliance with the rule,” DHHS said in its response to public comments.
“However, in light of the concerns regarding financial impact, the department has amended the proposed rule in many sections to address concerns about the burden on providers.”
The initial proposed regulations would have doubled the number of direct care workers at residential care facilities overnight and set stricter rules in memory care units that went beyond the state and federal staffing requirements at nursing homes. The updated regulations scaled back the staffing ratios, including returning to a standard for memory care units that is lower than in nursing homes.
The scaled back staffing ratios are still higher than current staffing requirements, which require residential care facilities with more than 10 beds to have one direct care worker for every 12 residents during the day; one to 18 in the evening; and one to 30 overnight.
Rather than increase the ratios for these facilities to one direct care worker per eight residents during the day and evening shifts, and one direct care worker per 15 residents overnight, as initially proposed, the new proposal sets a final standard of one direct care worker for every 10 residents from 7 a.m. to 11 p.m. and one direct care worker for every 20 residents from 11 p.m. to 7 a.m.
In memory care units, the final staffing requirement for these facilities would be one direct care worker for every eight residents during the day and one direct care worker for every 15 residents overnight.
In nursing homes, state regulations require a ratio of one worker to five residents during the day, one to 10 in the evening and one to 15 overnight. DHHS had initially proposed a new requirement for memory care units to have an employee whose sole responsibility was to observe residents, but removed it in the updated rule.
The new regulations follow an 18-month investigation by The Maine Monitor and ProPublica into the state’s largest residential care facilities, which found dozens of resident rights violations, including abuse and neglect incidents, more than a hundred cases where residents wandered away from their facilities and hundreds of medication and treatment violations. Experts, advocates and providers said requiring higher staffing levels, better training and more nursing care would help address these problems.
Mixed reactions
Advocates who applauded the initial proposal said the changes this week still contained “many improvements” around staffing levels, training requirements, transparency and accountability.
“The rule does not include everything we hoped for. But it is a significant improvement and will provide comfort and protection for many residents and their families,” said John Brautigam, an advocate for Legal Services for Maine Elders. “Many assisted housing facilities in Maine already meet most of the rule’s requirements, and all of them should welcome a strong new, uniform standard.”
Angela Cole Westhoff, president and CEO of the Maine Health Care Association, which represents the state’s assisted living and residential care facilities and had previously warned that the initial proposal could have “catastrophic outcomes,” said this week that Maine is still grappling with historic workforce shortages and these updated regulations won’t create more workers.
“While the updates to the rule have made a bit of progress, we still have major concerns with the draft regulations,” she told The Monitor. “Simply put, raising staffing requirements without meaningful investment will lead to the closure of homes across the state.”
Michael Tyler, managing partner of Sandy River Company — a real estate firm that owns and operates assisted living facilities in the state — said the updated rules have not assuaged his initial concerns.
“As drafted, these rules are a recipe for more closures and reduced access to long-term care in Maine,” he said. “Providers were not consulted in the development of these rules and over 100 individuals testified against these increased regulations and unfunded staffing mandates.”
DHHS received and responded to 110 public comments on the proposed updates to assisted living and residential care facility regulations, most of which relayed opposition to the proposal.
The department said the most prevalent concerns were the fiscal impact of the staffing ratios, the availability of nursing staff, increased administrative costs related to documentation and the lack of increased rates to offset the costs.
The department said it heard from many facilities that the staffing ratios would likely prevent them from operating and that it revised the staffing requirements in response to the public comments, but said that “increased staffing is still needed for all licenses and will improve resident care.”
“Overall, the department aims to adopt a rule that promotes resident health and safety without overburdening providers in a way that will result in closures and further reduction in services,” DHHS said in a statement that accompanied the updated rules. “The department also determined that, for many facilities, resident health and safety would still be greatly improved even if the staffing ratios from the proposed rule were slightly reduced.”
Increasing needs
Assisted living and residential care facilities offer less medical care than nursing homes but have expanded in recent years as people opt to live in more home-like and independent settings.
At the same time, the needs of residents in these facilities have increased. A report released last year by the Catherine Cutler Institute at the University of Southern Maine found that Mainers in residential care facilities are on average older and more likely to have dementia than those in nursing home facilities.
Brenda Gallant, Maine’s advocate for long-term care residents and their families, said assessment data indicates a “steep rise” in resident care needs between 2021 and 2023, and that the most frequent complaints she sees have to do with inadequate care and staffing.
“Direct care staff tell us how discouraging and difficult it is when staffing levels are inadequate,” Gallant said. “There is no question that inadequate staffing levels not only impacts the quality of care, it also impacts staff turnover.”
Brautigam, with Legal Services for Maine Elders, said he welcomed the “long-awaited” updated rules because current residents of these facilities have greater health needs than ever before.
“We have seen accounts of residents wandering off premises, individuals languishing in neglected and unsafe conditions, and failures to provide for residents’ medical needs,” he said.
“The stakes here are high,” he added. “Strong rules will prevent neglect, improve health outcomes, and foster environments where residents feel valued and safe. We owe it to them to ensure these protections are as strong as possible.”
Expected costs
Initially, DHHS asserted the rule changes were expected to have “minimal fiscal impact on licensed providers.” In an updated economic impact statement this week, DHHS estimated additional costs to providers for increased staffing overnight, nurse consulting policy development and management, medication management, compliance paperwork and administrator oversight.
In total, the department estimated annual costs would increase by between $178,000 and $262,200 for assisted living programs and between $68,800 and $134,800 for residential care facilities.
“The department acknowledges this is a significant increase in operating expenses, and also the licensing rules do not address reimbursement,” DHHS said in the economic impact statement. It added that these proposed regulations will go to the Legislature, which is the “appropriate forum” to discuss increased reimbursement.
DHHS was expected to submit final proposed regulations to the Legislature by Jan. 10, but facility owners and operators had asked the department to pause the process in order to have more discussion.
In its response this week, DHHS said it had carefully considered public testimony and changed the rules in response, and therefore it “will not delay submission of the rule to engage in further collaboration on the rule, and will await the Legislature’s determination on next steps, including whether to hold a public hearing.”
