By Jack Cumming

The recent pandemic has shown how difficult it is to find a reasonable regulatory path. In retrospect, it seems as though some authorities overreacted to the pandemic, while others — notably Sweden in the early days of the crisis — may have underreacted. California is no exception, and I’m sure that there are many other states like California.

Abundance of Caution

California, for example, still requires that staff in the independent living sections of CCRCs wear masks. The residents have been freed from that requirement. At Thanksgiving, some residents had to be disinvited from dinner due to a regulatory requirement after a relative of a table companion decided to come.

Such regulation may be true in other states as well, but California’s regulators could do better to balance well-being with the continuing threat of mild COVID. The literature increasingly shows that the social determinants of health also matter.

California may be unique among states in requiring that CCRCs be licensed as “residential care facilities for the elderly,” i.e., assisted living throughout, with no distinction between independent living and higher levels of care. Thus, fearing they may make a mistake, regulators may tend toward an excess of caution.

Since the California regulatory oversight is one of compliance and enforcement, there is little room for recognition of local community circumstances. Does this regulatory climate exist in your state as well? What might the industry associations do to help regulators become more engaged with the communities they oversee so that they don’t retreat into excessive caution with unintentional ill effects?

Compliance Culture

This same prescriptive regulatory culture impedes sensible approaches to other areas of senior care, as came to light during a November 2 conversation among a group of nurses from across the state. I was privileged to be able to listen to them.

My takeaway from that intense conversation was, first, how dedicated these nurses are to the care of their patients, and second, how the current regulatory structure inhibits their ability to deliver the best care. The supplemental discussion to which there is a link below delves more deeply into how this operates in practice.

Trusted Providers

From a public perspective, it seems obvious that what is needed is a more principled, proactive approach to regulation and enforcement. Such an approach would allow regulators to concentrate on improving the performance of substandard providers, while allowing trusted providers the flexibility to put patient care first, instead of having to elevate regulatory compliance above the needs of patients.

For a deeper dive into all of this, click here. The pandemic has shown us that we need a more flexible oversight model. Now is a good time to begin crafting that new regulatory system. Perhaps it can be done on a multistate basis, much as the National Association of Insurance Commissioners allows multistate cooperation. Important, though, is to begin.