Written by: Alyssa Gerace

When Minnesota’s Department of Health and Human Services snuck a provision into its 2012 budget to require individuals to undergo counseling before entering into assisted living or senior housing, some consumers and providers called it an intrusion on personal choice.

Three months into the rule’s implementation, assisted living providers say many consumers aren’t following the law, which raises concerns about the proprietors’ role in complying with the requirement.

Minnesota has long required seniors to undergo counseling before entering a skilled nursing facility, according to the state Board on Aging, but the new requirement expanded the rule to include all types of senior housing.

Now, before moving into a new community, seniors must obtain a verification code to signify they have complied with the requirement, either by receiving the counseling or by opting out.

The idea behind this new requirement is that by learning the options are available to them, seniors may choose a less expensive form of care. Rather than move into a nursing home, a senior could choose to enter assisted living or opt to receive care at home.

For people who plan on using government benefits programs to pay for their long-term needs, choosing a less expensive form of care is expected to save the state $3.8 billion over the next two years, according to Minnesota’s HHS department.

In regards to individuals who plan to pay for their care privately, however, some consider the counseling requirement to be an invasion of personal freedom and choice.

“Family members are coming in and seeing this as an unnecessary step,” says Roman Bloemke, director of operations at Welcome Home Management, a senior living management company based in Hutchinson, Minnesota. “They’ve made the decision and done the research on their own, and decided on a community. We’re telling them about this [requirement], and they’re saying, ‘Why do we have to do this? Why does the government have to be involved?’”

"Nearly three quarters of callers declined to receive the consultation, at 73%, according to information provided to Aging Services of Minnesota by the Senior Linkage Line (the agency responsible for the counseling consultation). More than 2,000 individuals had already made their long-term care decision, and 856 already knew which community they wished to enter."

The state of Minnesota isn’t doing anything to enforce the rule either, according Representative Jim Abeler (R-Minn.), the chairman of the House Health and Human Services Finance Committee.

“It’s not required; they can opt out of it,” he said. “What people don’t recognize, if they don’t do [the counseling], there’s no penalty for not doing it. It’s just a really, really strong suggestion.”

There are essentially two ways for an individual to forgo the “mandatory” counseling: either call the provided number to officially opt out (and receive a verification code to this effect), or simply do nothing and proceed to enter a senior living community.

“If a person absolutely refuses, there’s no penalty,” said Abeler. “Maybe the facility would feel some pressure that they should have done something, but there’s no penalty from HHS.”

While he says he wouldn’t describe the counseling mandate as a “problem,” Bloemke did say that it’s causing delays in move-in time frames, because at this point, providers are still very concerned with complying with the rule.

“As providers, we’re required to get this [verification code] before we can sign a lease with a resident,” he says.

The way the Aging Services of Minnesota puts it, according to Bloemke, is that “there could be a serious risk to providers who don’t comply with the law,” even though technically there’s no penalty on the book at the moment.

It’s this possibility of trouble that providers could get into that has made many providers anxious to abide by the requirement, he says.

While the HHS is focused on saving the state money, the Minnesota Board on Aging had only the best interests of consumers at heart, according to its executive director Jean Wood.

“The purpose of the service is to provide people with options,” Wood said. “It’s about serving seniors and their families as they hit these crises, and don’t know what to do. When you’re in the midst of a crisis, it’s the options that you need.”

The requirement will end up—and has already—saved the state money, Wood said, but for the counselors who speak with seniors, cutting costs is not the goal.

However, the rationale behind requiring everyone to receive this counseling is that even individuals who initially plan on privately funding their care will eventually spend down their resources and end up using state funds, Rep. Abeler said.

“If the state was never ever going to pay for any people who spend down to poverty, then the state has no interest in what they do with their own money,” he said. “Since the design of the system is to spend down to poverty and go on medical assistance, and then we’ll look after you, we have an interest in that.”

And according to Wood, implementing the counseling mandate—even for those who plan on paying for their care privately—hasn’t faced much opposition since it went into effect on October 1, 2011.

“It’s gone as we had expected it to, if not just a little bit easier,” she said. “There are some people who have declined. There are some people who have gone with the process, and in fact chose another option.”

She said they were actually surprised by the low number of after-hours inquiries. Business process modeling had given the expectation that there would be a lot, but Wood reports receiving less than 25 statewide.

At this point, they’re not sure why the number is so low, Wood says, adding that the Minnesota Board on Aging was in the process of conducting a data poll to assess peoples’ opinions and reactions to the counseling mandate.

Despite Wood’s comments about the requirement’s smooth implementation, some providers are working to get rid of what they consider to be unnecessary government interference.

“There is a little bit of a ground movement right now [to repeal the rule]. Some legislators are saying that it’s not fair to consumers, and it’s not fair to businesses,” Bloemke said, adding that according to the state’s Aging Services, “there’s strong support to address these concerns.”

Curious how this and other laws and regulations promoting or hindering your ability to serve seniors?  Participate in a Q&A session with state regulators at COMMUNITY 2012, the ALFA conference and expo.  Learn more about the ALFA Conference. 

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