Texas winter storm exposes gaps in senior living oversight

Reviewed by Emily Henderson, B.Sc.Mar 10 2021

When the big, red and extremely loud fire alarm went off in Maria Skladzien's apartment, the 74-year-old ventured into the hallway with fellow residents of her Houston-area senior living community. The brutal winter storm that swept through Texas had knocked out power, which, in turn, disrupted water to the four-story building. The blaring alarms raised fears of fire.

The building's elevators were unusable without power. Dependent on her wheelchair, Skladzien went back inside her second-floor apartment. She watched as residents gathered in the subfreezing temperatures outside, wondering if she would have to "throw herself out the window" to survive.

"It's a very uneasy feeling," she said, sitting in the living room of her small apartment a week later, packages of water brought by friends and volunteers tucked against walls and sitting on tables. No fire had occurred, but her fears continued because the elevators were still not functioning. "So many crazy things race through your mind in a situation like this."

Winter storm Uri brought power failure and burst water pipes to millions of homes and businesses throughout Texas. But the impact, as is often the case in emergencies, was most profound on the state's most vulnerable — including residents of senior living facilities.

Of the state's 1,200 nursing facilities, about 50% lost power or had burst pipes or water issues, and 23 had to be evacuated, said Patty Ducayet, long-term care ombudsman for Texas. Of 2,000 assisted living facilities, about 25% had storm-related issues and 47 were evacuated. Some facilities reported building temperatures in the 50s.

The federal government requires nursing homes to maintain safe ambient temperatures but does not stipulate how and does not require generators or other alternative energy sources to run heating and air conditioning systems. States can implement more stringent guidelines, but, to date, Texas has not. Several bills were introduced in the Texas legislature after Uri to do just that, said Ducayet.

Uri was the latest disaster to highlight an ongoing problem. Evacuations and nursing home deaths in Hurricane Katrina in 2005 led to calls for similar protections. In 2009, Hurricane Sandy forced the evacuation of more than 4,000 nursing home residents in New York when backup power systems failed and emergency plans buckled. And calls for stricter rules were renewed when Hurricane Irma tore into Florida in 2017 and left a dozen residents dead in a nursing home that lost air conditioning. Multiple blackouts and wildfires in California also have exposed lax adherence to federal requirements for backup power at skilled nursing facilities, as well as weak state enforcement of those rules, according to a 2019 report from the U.S. Department of Health and Human Services.

"Every time we come back around with a new disaster, you see that these facilities still aren't as prepared as, maybe, they can or should be," said Lori Smetanka, executive director of the National Consumer Voice for Quality Long-Term Care, an advocacy organization based in Washington, D.C. "And many of them still aren't following the requirements that are in place. So it's like: What's it going to take to actually get the plans in place and to get enforcement of those plans?"

In November 2016, the Centers for Medicare & Medicaid Services implemented a slate of new regulations, including rules on disaster planning and emergency backup power in the nation's nursing homes.

A month later, Mark Parkinson, president and CEO of the long-term care industry's trade group, the American Health Care Association and National Center for Assisted Living, sent a letter to then-President-elect Donald Trump requesting new rules because the regulations were burdensome and financially onerous, according to reporting by ProPublica.

In 2019, CMS published final rules with revised emergency preparedness guidance, agency spokesperson William Polglase said, after feedback from the public that those requirements were “overly burdensome and duplicative.” But, he added, the rules require such facilities to have emergency and standby power systems and emergency plans. “We did not remove or modify any requirements that would endanger patient health or safety,” he said.

Advocates for older adults, however, decried the changes as watering down the protections.

"The facilities push back because of the expense, but what I think recent years have shown us is that we're not talking about once-in-a-century type of disasters," said Eric Carlson, directing attorney with Justice in Aging, a national legal advocacy nonprofit.

But it's not just nursing homes at risk.

Cristina Crawford, an AHCA spokesperson, said prioritizing long-term care facilities at all levels is important in emergencies. "Nursing homes and assisted living facilities should be prioritized for power restoration and supplies for resource delivery in emergency situations," she said. "Long-term care facilities should also be included in community-based exercises to help ensure successful coordination in actual emergencies."

Although nursing homes face federal oversight, the licensing and regulatory authority for assisted and senior independent living facilities lies with the states, meaning a patchwork of definitions and guidelines for the facilities. Given that assisted and independent living communities have been the fastest-growing sector in senior living for many years, the disparate definitions and rules often leave residents and their families without a clear understanding of a facility's offerings and safety guardrails.

"There's no transparency from a consumer perspective about what are these different options, what am I getting in each of them," said David Grabowski, professor of health care policy at Harvard Medical School.

Years ago, Grabowski and others said, independent and assisted living facilities were filled with a generally healthier population who didn't need much medical assistance and who could afford to pay out-of-pocket for enhanced lifestyle amenities such as restaurants or outings.

But as the population ages, residents are often less healthy and may not have the financial resources to afford the higher level of care they need. And unlike nursing homes, assisted and independent living facilities do not necessarily operate under regulations that require building codes to address the needs of elderly or disabled residents, or requirements for backup power or emergency systems. It depends on where they are.

In Texas, assisted living facilities are required to have emergency plans but not generators. The legislation introduced in the wake of winter storm Uri seeks to change that. Independent living facilities like the one Skladzien lives in might not be covered, though; they already have even fewer state guidelines to follow.

"We still don't have good emergency management planning and preparation ingrained within the regulations to make sure our loved ones are safe within these facilities, because it just comes down to the money," said Brian Lee, executive director of Families for Better Care, a nonprofit in Austin, Texas, focused on the nation's long-term care facilities.

The debate is analogous to previous efforts to require sprinkler systems in nursing homes, he said. "How many more people have to be injured, maybe even have to have suffered death, because of power failure negligence?"

Lee and others said there is a distinction to be made between staff members — some of whom stayed in their facilities throughout the winter storm to keep residents safe — and industry forces resisting regulatory efforts to beef up backup safety systems.

"We can't, and shouldn't, let the industry decide how this is going to work," said Ducayet. "There needs to be involvement and organization at government levels, so that there is clarity and information about how these different settings work."

With elevators still not working at Skladzien's independent living building a week after the storm, she was trying to figure out how she would get to her weekly post-cancer medical treatment.

Skladzien, who owned her own cleaning business for 25 years and drove a school bus for 15 years, moved into senior housing in 2019 when she could no longer handle the upkeep on her home. When she was looking for a place to live, though, it never occurred to her that apartments marketed toward older adults would not have a generator or plans to help residents in an emergency. And she never thought to ask.

"I had no experience," she said.

It may not have mattered: Medical bills had depleted her savings, leaving her only the choice of what was available in low-income housing. In her building, she was told, wheelchair-accessible apartments on the first floor were beyond her financial reach.