**4. Policies to address racial and ethnic health disparities in long-term care facilities**

There are myriad federal, state, and local policies that affect racial equity in LTCFs because the long-term care system is integrally connected to systems of – and structural racism within – housing, economic opportunity, and health care. In this section, we present federal and state policies directly related to LTCFs. Federal policy applies across all states and territories and is the prevailing law in terms of citizen rights when there are discrepancies between federal and state law. State laws can vary widely, and while state law can provide additional rights and protections to citizens beyond what is provided by federal law, it cannot reduce those rights.

### **4.1 Existing federal policy**

There are broad prohibitions against racial discrimination within federal law and regulations. Regulations of the U.S. Department of Health and Human Services (DHHS) prohibit health care providers who receive federal funding from discriminating against people of color [67]. The federal Fair Housing Act prohibits discrimination based on race, color, or national origin in assisted living/residential care communities [68].

Federal policy also works to eliminate health disparities. The Patient Protection and Affordable Care Act of 2010 mandates and funds efforts to redress racial and ethnic health disparities. The Office of Minority Health reports directly to the Secretary of Health and Human Services and works to improve the health and quality of care of people from racial and ethnic minority groups and eliminate racial and ethnic health disparities [69]. There are also separate Offices of Minority Health within six DHHS agencies and the National Institute on Minority Health and Health Disparities within the National Institutes of Health that seek to eliminate health disparities.

#### *4.1.1 Centers for Medicare & Medicaid Services regulations*

Because approximately 72% of the funding for long-term care in the United States comes from federally funded programs [10], the Centers for Medicare & Medicaid Services is a major regulator of LTCFs. This includes regulations and guidance for Medicare- and Medicaid-participating LTCFs [70] and assisted living/ residential care communities that receive funding through Medicaid waivers for Home and Community-Based Services [71]. It is important to note, however, that over 14,000 assisted living/residential care communities in the United States do not accept Medicaid funding and are therefore not subject to any regulations by the Centers for Medicare & Medicaid Services [10].

Many of the Centers for Medicare & Medicaid Services regulations specifically for LTCF operations pertain to the quality of care and quality of life of residents [53]. Overall, these regulations do not mention race and ethnicity (apart from including "insults based on race" in the definition of abuse). Rather, they speak more broadly to concerns such as residents' rights to "a dignified existence" and freedom from discrimination in exercising rights [53]. In fact, in crafting the 2014 regulations for Medicaid waivers for Home and Community-Based Services, the Centers for Medicare & Medicaid Services noted they had received several public comments recommending specific non-discrimination protections in the policy but chose not to include them because more general provisions existed elsewhere in Medicaid policy [71]. Additionally, although the Centers for Medicare & Medicaid Services provides detailed guidelines for state surveyors of Medicare- and Medicaid-certified nursing homes and training for nursing home staff, the regulations do not specify assessments or training related to racial and ethnic disparities in LTCFs [53].

#### *4.1.2 Long-term care ombudsman program policies*

As described in Section 2, the federally mandated mission of the Long-Term Care Ombudsman Program is to advocate for LTCF residents. The federal government provides detailed regulations for state Long-Term Care Ombudsman Programs and their local-level designees, including the types of policies they must have, required qualifications for staff, and the need to submit a publicly available annual report of their activities to the U.S. Administration on Aging and their state's government [53]. Like the provisions of the Centers for Medicare & Medicaid Services, the regulations of the Long-Term Care Ombudsman Program do not identify racial and ethnic equity as an explicit concern in their guidelines. For example, the required qualifications for Ombudsman Program staff do not include any skills or knowledge of racial health equity [53]. Another omission is in the reporting requirements which do not mandate disaggregation of complaint data by race and ethnicity which would allow the program, public, and lawmakers to evaluate racial and ethnic disparities related to residents' complaints [53].

#### **4.2 Existing state policy**

States can create policies to license, inspect, and regulate LTCFs. In fact, they are responsible for the bulk of oversight of assisted living/residential care communities. States cannot create regulations for nursing homes that are less stringent than federal policy, but for assisted living, each state has the latitude to set its own standards. These vary widely across domains of building and occupancy requirements, training, staffing requirements, and resident assessments [72]. States differ in the ways they distinguish and treat board-and-care homes for older adults – which tend to serve older adults of color – and assisted living communities [73]. The variation of state regulations for assisted living is related to the liberal/conservative leaning of state legislatures, the states' bureaucratic capacities (e.g., capacity of the state Long-Term Care Ombudsman Program), and even the salaries of the legislators [68].

*Addressing Systemic Factors Related to Racial and Ethnic Disparities among Older Adults… DOI: http://dx.doi.org/10.5772/intechopen.99926*

The lack of consistency in LTCF oversight and commitment to addressing racial health disparities across the states (see for example [74]) highlights the importance of a federal response to address inequities among LTCF residents.
