HealthCap® worked with AHCA/NCAL last fall to analyze what Argentum’s push for developing ANSI standards would mean for the industry. We found that national standards would be redundant to state licensing oversight and accompanying standards, which would confuse and complicate compliance. Furthermore, two sets of standards would fuel even more litigation, as trial attorneys will be able to hand-pick between the two sets of standards.
Late last week NCAL sent a message to its members outlining the findings of HealthCap® and other industry leaders. Due to these findings, AHCA/NCAL does not support the Argentum endeavor.
McKnight’s Senior Living also wrote an article about how NCAL and other provider groups feel this topic.
Below is the message NCAL sent to its members:
Dear NCAL Member,
Last year, it came to our attention that another association representing senior living, Argentum, had embarked to establish national standards of operations and care for all senior living providers (including assisted living, independent living, CCRCs, and memory care providers). We are contacting you today to make you fully aware of these efforts, as well as to assure you that AHCA/NCAL does not support this endeavor. We believe there are better ways to move the profession forward and improve the quality of care in assisted living communities.
In April 2019, AHCA/NCAL became aware that Argentum had applied to become a standards developer through the American National Standards Institute (ANSI). This is the first step in eventually developing national standards for assisted living. ANSI traditionally helps organizations set standards for businesses, not health care providers (more on this later).
AHCA/NCAL—along with many of our state affiliates and other stakeholders, including LeadingAge and the American Senior Housing Association (ASHA)—formally submitted comments to ANSI on Argentum’s application, stating numerous concerns. Unfortunately, our concerns were not addressed, and ANSI approved that application. We have since submitted an appeal to ANSI, as have other stakeholders and national associations, and are in the midst of that appeal process, which could take months.
On multiple occasions, we respectfully requested that Argentum leadership slow down its unilateral effort to allow for further discussion, but have not succeeded. This past fall, leadership from all trade associations representing the sector met in-person to discuss Argentum’s effort, where once again we voiced our concerns. Still, Argentum leaders dismissed our misgivings.
Despite ours and others’ efforts, it appears as though Argentum’s application to become a standards developer will move forward. Therefore, we believe it necessary to inform you of this effort because you have the right to know about the vast implications national standards can bring providers.
Industry-Wide Implications of National Standards
Unfortunately, it is a well-settled and well-known area of law that ANSI standards can become the standard of care for purposes of tort liability. As a result, Argentum’s standards could become the standard of care for every AL provider, both for Argentum members and non-members and regardless of whether the standards are called “voluntary” or not. All providers will potentially be held to them. There is a long line of case law that demonstrates this ( read our legal counsel’s analysis). This becomes a gift to the trial lawyers. Instead of having to go through the burden of proving the industry standard, which we are then able to refute with experts of our own, Argentum will be handing it to trial lawyers on a silver platter.
Argentum argues that basically all sectors do this by referring to the 10,000 ANSI standards that are out there. It is true that there are 10,000 sets of standards, but there are only 280 ANSI standard developers. Most notable, few health care associations associated with ANSI are developing standards for very limited purposes (e.g., dentistry tools, podiatry certifications) unlike Argentum’s efforts, which will have much broader impact on operations and care on your communities. Major health care providers, like hospitals, physicians, ER’s, home health, etc., have simply not gone down this path with ANSI. That is because litigiousness against health care providers is totally different than other professions and industry sectors, such as manufacturing and engineering, where ANSI standards traditionally exist.
AHCA/NCAL’s preferred partner for general and professional liability insurance, HealthCap, also shared their analysis: that national standards would be redundant to state licensing oversight and accompanying standards. This would only confuse and complicate compliance. What happens when those standards are in conflict? Creating two sets of standards will fuel even more litigation (and, thus, higher insurance premiums), as trial attorneys will be able to hand-pick between the two sets of standards. Instead of improving defensibility, national standards alongside existing and unique state regulations will substantially undermine assisted living communities’ ability to defend claims—at a time when the profession is under increased pressure.
Lastly, Argentum argues that national standards developed by the industry can help prevent the threat of federal regulation of assisted living by demonstrating to elected officials that the sector is essentially self-regulating. This is also misguided and simply, a misunderstanding of how the Hill works. If the right political dynamics exist in Washington, unfortunately, it won’t matter whether the profession attempted to regulate itself. This is why AHCA/NCAL makes considerable effort to educate members of Congress about the value of evolving state-based regulation of the sector to help fend off, but also prepare for, any such policy discussions.
What NCAL Believes
The NCAL Board of Directors and our state affiliates have made it very clear. Setting national standards for assisted living is not the best approach, not for a profession where person-centered care is championed; where each community is unique; where regulations are state-based; and where innovation and adaptation is crucial.
AHCA/NCAL has long been a champion of continuous quality improvement in our communities. For more than 20 years, we have run the largest program based on the esteemed Baldrige Excellence Framework, the National Quality Award Program. More than 800 assisted living communities have earned awards through this program, which fosters cultural excellence, not rigid national standards.
Additionally, the NCAL Quality Initiative encourages you to make measurable improvements in areas that we know will considerably improve the lives of residents. And we offer LTC Trend Tracker at no additional cost, so you can monitor your progress against your assisted living peers. No other organization offers this kind of nationwide, data comparison for the assisted living profession.
We also fully support state-based regulation of the sector to encourage assisted living that caters to its local population and fosters innovation. Our state affiliates do a tremendous job to advocate for common-sense regulation and reimbursement policy for those of you who elect to support our most vulnerable residents on Medicaid.
And while we have developed unique member benefits and policy positions, we also believe in collaborating with other long term care associations and stakeholders in the space. We’re proud that our own Associate Vice President Lindsay Schwartz is the board chair of the Center for Excellence in Assisted Living, a collaborative of nine other national organizations. AHCA/NCAL welcomes an ongoing dialogue between all senior living associations on how we can work together in the pursuit of excellence.
As mentioned earlier, the ANSI appeal process could take months and regardless, we are not optimistic that ANSI will heed the concerns expressed by a majority of the profession, or that Argentum will voluntarily halt its unilateral effort.
This email is not intended to create panic, but you may read some of this in the trade press or other sources, and we felt it was important to share our position. We will continue to work through the formal ANSI process, as well as the informal communication route with Argentum leadership to share our concerns. AHCA/NCAL will also continue to consult with legal counsel to explore any and all options going forward, and we encourage you to do the same to more fully understand the potential impact national standards of care and operations will have on you and your communities. We will also further explore ways to officially declare our position.
We understand that you have options when it comes industry representation, especially at the national level. AHCA/NCAL fully respects the other organizations in the space and believes each offers a unique experience to senior living providers. We are grateful that you have chosen us and your state affiliate, and we hope you’ll continue to join us as we celebrate and elevate assisted living.
NCAL Executive Director