RULES AND REGULATIONS
Title 55--PUBLIC WELFARE
DEPARTMENT OF PUBLIC WELFARE
[55 PA. CODE CHS. 2600 AND 2620]
Personal Care Homes
[35 Pa.B. 2499] Statutory Authority
The Department of Public Welfare (Department) adopts Chapter 2600 (relating to personal care homes) and rescinds Chapter 2620 to read as set forth in Annex A under the authority of section 211 and Articles IX and X of the Public Welfare Code (62 P. S. §§ 211, 901--922 and 1001--1087).
Notice of proposed rulemaking was published at 32 Pa.B. 4939 (October 5, 2002).
Purpose of the Final-Form Rulemaking
The purpose of this final-form rulemaking is to protect the health, safety and well-being of personal care home residents. Personal care homes are designed to provide safe, humane, comfortable and supportive residential settings for adults who do not require the services in or of a licensed long-term care facility, but who do require assistance or supervision with activities of daily living (ADL) or instrumental activities of daily living (IADL), or both. Residents who live in personal care homes that meet the requirements in this chapter will receive the encouragement and assistance they need to develop and maintain maximum independence and self-determination.
This final-form rulemaking is needed to protect the health, safety and well-being of adults who receive services in personal care homes away from their families and advocates. The final-form rulemaking strengthens health and safety protections based on current information and research and incorporates state-of-art program concepts. The final-form rulemaking addresses the increasing complexity of the needs and services of the personal care home residents. Due to this Commonwealth's rapidly growing population of older adults, as well as the desire of many consumers to stay out of nursing homes, the demand for residential care options is increasing.
Background
During the public comment period, the Department received a total of 776 letters, faxes and e-mails submitting recommendations for changes to the proposed rulemaking. The Department prepared and distributed a summary of the major commentator issues to personal care homes and other interested persons. Five workgroups were formed to review the sections of the regulations with the most disparate comments. The five work groups included: medications, resident rights, small homes versus large homes, staffing and assessments/support plans. The work groups were co-chaired by personal care home stakeholders and Department staff, and reported to the Department's Personal Care Home Advisory Committee (Committee), which is comprised of personal care home residents, providers, provider associations, advocates and advocacy associations. The goal of each workgroup was to recommend guidelines for the final-form rulemaking relating to the workgroup's specific topic of interest.
The Department considered the 776 public comments, the Committee workgroup recommendations, comments from other State agencies, Departmental research, comments from legislators and recommendations of the Independent Regulatory Review Commission (IRRC) in developing the final-form rulemaking.
Throughout the regulatory process, including the various public forums and the public comment period, many valuable comments and suggestions were received from the external stakeholders who participated in the process. The Department has carefully reviewed and considered each comment and incorporated many of the recommendations into the final-form rulemaking. The Department appreciates the time and expertise external stakeholders have given to make the final-form rulemaking an effective regulatory tool to protect the vulnerable adults served in personal care homes.
Affected Organizations and Individuals
The residents receiving care and services in these licensed facilities are directly affected by this final-form rulemaking since they are the consumers that the final-form rulemaking aims to protect. Families and friends of the residents receiving care and services are affected in their interest to protect the health, safety and well-being of their loved ones.
Personal care homes must comply with this final-form rulemaking to operate in this Commonwealth. This final-form rulemaking applies equally to profit and nonprofit facilities. As of October 2004, there are 1,689 licensed personal care homes in this Commonwealth, with a resident capacity of 75,958. Of this total, 1,293 homes (77%) are operated for profit and 396 homes (23%) are operated as nonprofit. There are 317 homes serving 8 or fewer residents (19%), with 1,372 homes serving 9 or more residents (81%). Of the 53,240 residents in personal care homes, a total of 10,425 residents (19.6%) receive Supplemental Security Income (SSI) benefits that are accepted as full payment towards the residents' monthly care.
Accomplishments and Benefits
The final-form rulemaking benefits 53,240 residents served in licensed personal care homes in this Commonwealth by providing comprehensive health, safety and well-being protections, while requiring that a resident's needs be met on an individualized basis. The final-form rulemaking supports resident-centered care, resident choice and resident privacy.
The final-form rulemaking includes many new and strengthened requirements from the current regulations, including unannounced Departmental inspections, fire safety protections, reportable incidents and conditions, resident-home contract, quality management, refunds, resident rights, complaint procedures, administrator qualifications, administrator and staff training, approval of training courses and instructors, emergency preparedness, emergency medical plan, smoking safety, medications, medication administration training, safe management techniques, preadmission screening tool, initial and annual assessment, support plan, notification of termination, secured dementia care and enforcement.
Families and friends of the residents also benefit by this final-form rulemaking in their interest to assure the health, safety and well-being of their friends and family members.
Fiscal Impact
IRRC and many commentators recommended that the Department consider the fiscal impact of the final-form rulemaking on smaller personal care homes and reassess its cost estimates for the final-form rulemaking. In drafting the final-form rulemaking, the Department carefully researched and considered the effect the new requirements will have on the cost of providing or receiving services. The following requirements will have most influence on the cost of implementing the final-form rulemaking. A discussion of new costs, as well as fiscal relief for small homes, is addressed.
1. Small versus large homes.
In accordance with section 211(b)(1) of the Public Welfare Code, the Department added several exemptions for small personal care homes serving eight or fewer residents. The Public Welfare Code requires that the Department distinguish between the requirements for homes serving nine or more residents versus homes serving eight or fewer residents.
The exemptions for small homes are based on existing residential licensing regulations for community homes (§§ 6400.231--6400.245 (relating to homes serving nine or more residents)) and child residential facilities (§§ 3800.251--3800.257 (relating to secure care)) and the cost impact for small homes. The exemptions for small homes include the requirements regarding administrator qualifications (§ 2600.53(a)(5) (relating to qualifications and responsibilities of administrators)), sewage system approval (§ 2600.85(f) (relating to sanitation)), communication systems (§ 2600.90(b) (relating to communication system)), posting of emergency evacuation diagrams (§ 2600.123(d) (relating to emergency evacuation)), interconnected fire alarms (§ 2600.130(d) (relating to smoke detectors and fire alarms)) and exit signs (§ 2600.133 (relating to exit signs)). These requirements were proposed to apply to all homes regardless of size.
These exemptions respond to IRRC and the public comments requesting fiscal relief for small homes and support a more ''home-like'' setting for the smaller homes, again in response to public comment.
2. Physical site.
Many public comments were received regarding the costs of some of the new physical site requirements. Some homes will incur reasonable and necessary additional costs to meet new health and safety protections such as water safety testing (§ 2600.89(c) (relating to water)), a communication system (§ 2600.90) and safe landings at stairwells (§ 2600.94 (relating to landings and stairs)).
The new requirement for water safety testing in § 2600.89(c) applies only to a home that is not connected to a public water system, but instead has a private water source such as a well. These homes will need to test their well water every 3 months for coliforms to be certain that the water does not contain contaminants and is safe to drink. The quarterly cost for coliform testing at a Department of Environmental Protection (DEP) certified laboratory is only $30 per test. The benefit of assuring that residents have safe drinking water and are not exposed to harmful contaminants outweighs this reasonable cost.
The new requirement for an internal communication system in § 2600.90 applies only to a home serving nine or more residents. In a large home, it is critical that staff persons be able to quickly and efficiently contact other staff persons in the event of an emergency or if they need assistance with a resident. The cost of installing a communication system will vary greatly based on the size and lay out of the home. If a home is physically structured so that staff persons can call out for assistance and be heard throughout the home, a system is not required. Many large homes already have internal communication systems in place and will not incur additional costs. Types of communication systems that may be used include walkie-talkies, pagers, cell phones and intercom systems. The Department estimates that a two-way walkie-talkie system for two staff persons will cost between $20 and $100. The benefit of being able to contact other staff persons in the event of an emergency outweighs this reasonable cost for a large home.
The new requirement for safe landings at stairwells in § 2600.94 will be a one-time cost for an existing home that does not currently have a safe landing at the top of a stairwell. The requirement applies to a home that has a downward stairwell with a door that opens into the stairwell with no landing at the top as the door is opened. This requirement is a major safety protection to prevent accidents and injuries and is intended to prevent a resident from falling down a stairwell. Many homes already meet this requirement and no changes to the home will be needed. Often this requirement can be met by reversing the door swing so that a resident must step back to open the door before proceeding down the stairwell. Since there could be many physical lay out variations to a home and the risks may vary, the Department will entertain a waiver request if the home believes that a particular stairwell is safe. The cost to comply with this requirement will vary depending on the physical site correction that is required. The benefit of preventing serious injuries due to falls outweighs the cost.
The new requirement for nonskid surfaces on stairs, steps and ramps in § 2600.94 will be a one time cost for a home that has surfaces that are likely to cause slips, falls and resulting injuries to the residents. Most homes already have acceptable nonskid surface coverings such as carpet on interior stairs, rubber coverings or strips on ramps and textured concrete on outside steps. The estimated average cost per foot for installing a nonskid strip on a stairs or ramp is $4 per yard. The benefit of preventing falls and injuries outweighs this reasonable cost.
3. Fire safety.
Many public comments were received regarding the costs of some of the new fire safety requirements. Some homes will incur reasonable and necessary additional costs to meet new fire protections such as fire safety exits (§ 2600.122 (relating to exits)), fire alarms for residents and staff persons with a hearing impairment (§ 2600.130(e)), fire alarms connected to the local fire department (§ 2600.130(i)), exit signs for large homes (§ 2600.133) and smoking safety (§ 2600.144 (relating to use of tobacco).
The new requirement for two independent and accessible fire safety exits per floor in § 2600.122 will be a one-time cost for an existing home that does not have two exits. The Department has a delayed implementation of this requirement. Existing homes will be required to have two exits from each floor of the home within 18 months after the effective date of the final-form rulemaking. This requirement is critical to provide for safe evacuation in the event of a fire. In many cases of an actual fire, an interior stairwell may be blocked by fire or smoke making egress impossible. A second exit is often necessary to escape the fire. The second exit may be an interior stairwell. Installation of a fire escape may be required for a multistory home. The fire escape may be of any sturdy construction material including wood. The cost of installing a new fire door and fire escape is estimated at $5,000. The benefit of providing an alternate escape route for resident in the event of a fire outweighs the cost.
There is a new requirement in § 2600.130(e) requiring that an individual or staff person with a hearing impairment must be alerted in the event of a fire. This applies to all homes regardless of size. The estimated cost of installing a full strobe light and bed vibrator system is $170 per person. The bed vibrator system would be required only for a resident with a hearing impairment. A personal body device, estimated to cost $100, that is portable and the possession of the individual is also an option. The benefit of providing equal fire protection for a person with a hearing impairment outweighs this cost.
The current requirement in § 2620.55(j) (relating to fire protection and safety) requires the home's fire alarm system to be directly connected to the local fire department, or maintain a 24-hour monitoring service, if the home serves ten or more residents with mobility needs. The Department has strengthened this fire safety protection to lower the threshold of application to a home serving five or more residents with mobility needs in § 2600.130(i). This is a new requirement only for a home serving more than four but less than ten residents with mobility needs. By immediately alerting the fire department, the risk of injury and death in the event of a fire in a home serving five or more residents with mobility needs is reduced. The estimated annual cost of a digital communicator or a monitoring service is $500. The benefit of this strengthened fire protection outweighs the costs.
The requirement in § 2600.133 requires exit signs for a large home. This is necessary to mark the path of egress in the event of a fire or other emergency. Many homes already have exit signs. The cost of installing exits signs is reasonable compared to the benefit of providing increased fire safety protections.
The new requirements regarding smoking safety in § 2600.144 requires that if smoking occurs on the premises, the smoking room inside the home or the exterior area where smoking occurs will be fire safe. There have been several recent fires in personal care homes caused by careless smoking practices. These smoking safety requirements are necessary to prevent fires and associated fire injuries and deaths, as well as to protect the health of nonsmokers from second-hand smoke. However, this new requirement is optional by the home. A home may choose to have a nonsmoking policy in the home and avoid these potential costs. The benefits of providing the increased fire and health protections and the protection of residents from second-hand smoke outweighs the costs.
4. Staffing.
There are increased qualifications for an administrator in § 2600.53 that will apply to a new home. There is no cost to existing homes since they are exempt from the new qualification requirements. There is also a special qualification option for a small home to permit a person to qualify as an administrator with a high school diploma or general education development (GED) diploma. Increased qualifications for a new home are essential to assure that qualified persons are in the top management position to provide the increasingly complex services provided by a person care home. There are no costs to existing homes or to small homes.
Staff training has been increased both in the number of hours required for administrators and direct care staff and in the types of training required. Strengthening of the training requirements is necessary to provide better health and safety protections for the residents as well as improved care and services based on the needs of the individual resident. Costs to provide the training will vary across this Commonwealth and for each staff person, but are estimated at $180 per year per administrator. The benefit of providing the improved training outweighs the costs.
5. Services.
There are new costs for the development of the resident assessment in § 2600.225 (relating to initial and annual assessment) and support plan in § 2600.227 (relating to development of the support plan). The Department will provide forms for ease of administration by the home. The assessment is necessary to determine if the individual's needs can be met by the home. The support plan is necessary for the resident to receive the individual services specific to his needs such as behavioral health care, vision care or dental care. There will be minimal costs and paper work for the home since the functions can be absorbed by existing staff persons. The benefit to residents of providing services based on an individual assessment and support plan outweighs the costs.
6. Administration.
There are a few new costs associated with administrative requirements required by the final-form rulemaking, such as the development of policies and procedures, incident reporting and quality management. The Department will develop model policies and procedures so that the impact on the home will be negligible. The benefit of providing effective administrative policies for areas such as incident reporting and quality management outweighs the costs.
The Department anticipates that this final-form rulemaking will have no impact on State revenues. Personal care home residents who meet eligibility requirements can use government funds to pay to live in a personal care home. A total of 10,425 low-income residents over 65 years of age, who have a disability or are blind, receive monthly payments from the SSI Program. In addition, the Commonwealth provides a supplement to recipients of SSI.
There will be no costs to the general public or to local government as a result of this final-form rulemaking.
Paperwork Requirements
The final-form rulemaking does require some additional paperwork by the Commonwealth and personal care homes. However, there is no reasonable alternative to the increased paperwork.
The homes will not be required to develop their own forms, but rather the Department will develop the forms in cooperation with the providers. The preadmission screening tool and assessment form were developed with stakeholder input prior to the final-form rulemaking. Additional Departmental forms that are required, such as the reportable incident and condition form, will be shared in draft form with external stakeholders for review and comment prior to implementation. With respect to the annual assessment form (§ 2600.225) and the support plan (§ 2600.227), the home may use its own form as long as all the required information in the Department's standard form is included. The Department will also work with stakeholders to develop sample policies and procedures, to assist all personal care homes to comply with the final-form rulemaking.
In response to public comment, the paperwork requirements have been reduced from the proposed rulemaking. Paperwork reductions include the elimination of requirements for some policies and procedures such as independent audits, hiring practices, personnel records and job descriptions.
Public Comment
Written comments, suggestions and objections regarding the proposed rulemaking were requested within a 30-day period following publication of the proposed rulemaking. As mentioned previously, a total of 776 comment letters, including e-mails and faxes, were received by the Department in response to the proposed rulemaking. The Department received comments from every sector of the community that will be affected by the final-form rulemaking including consumers, family members, advocates, personal care home employees, service providers, trade associations, local government and other State agencies, as well as from IRRC and the majority and minority chairpersons and members of the Senate Public Health and Welfare Committee and House Health and Human Services Committee. Of the 776 comment letters, 323 were form letters of 32 differing varieties.
Discussion of Major Comments and Major Changes
Following is a summary of the major comments received within the public comment period following publication of proposed rulemaking and the Department's responses to the comments. A summary of the major changes from the proposed rulemaking is also included.
General--Services and Quality of Care
IRRC and several commentators raised concern that homes may divert staff persons from direct care to administrative functions to complete the development of forms and procedures such as emergency management and incident reporting.
Response
The Department will continue to work with the Committee and other interested parties in developing standardized forms and model policies and procedures to assist all personal care homes to comply with the final-form rulemaking.
General--Cost
Many commentators suggested that the rulemaking will create a significant financial burden on providers of service, particularly related to staff training and physical site changes. Some commentators suggested that the regulations are cost-prohibitive for small homes and that they will be forced out of business.
Response
While there are some additional requirements regarding staffing, physical site and fire safety, many providers are already meeting higher standards than currently required. The cost of meeting the new final-form rulemaking is outweighed by the benefits to the residents. The Fiscal Impact section of this preamble provides a detailed fiscal review and discussion.
GENERAL PROVISIONS
§ 2600.1. Purpose
One commentator suggested deleting the reference to skilled or intermediate nursing care. Two commentators proposed that the regulation does not assure a supportive residential setting and that the regulation is moving toward a medical versus a homelike model of care. Several commentators suggested retention of current § 2620.1 (relating to introduction) that addresses unnecessary deinstitutionalization and the use of placement services of local assessment agencies. Two commentators commended the Department for using ''dependent adults'' versus the terms ''aged, blind and disabled.''
Response
The Department deleted the reference to skilled or intermediate nursing care and clarified the scope of care and services in a personal care home. Commonwealth law prohibits a personal care home from housing and serving residents whose care needs would qualify them for nursing facility care. This distinction is made in the statutory definition of ''personal care home'' in section 1001 of the Public Welfare Code (62 P. S. § 1001), which provides that an individual who needs the level of care of a long-term care facility, or nursing home, cannot be served in a personal care home. Personal care homes serve adults who require assistance beyond the basic necessities of food and shelter, but who do not require the services in or of a nursing care facility.
The Department disagrees that the regulation is moving toward a medical model of care. A homelike, or social, model of care focuses on supporting the wellness of the whole individual, not only their physical condition, but also their emotions and intellect. The individual's choices, unique differences, privacy and social support system are paramount. The physical setting compares to living in the comfort of a family home. This model of care can positively affect both residents and staff.
A medical model focuses on disease and providing treatment. Individuals are in a passive, receptive role. Physical site is arranged to ensure efficient, sanitary and even mobile care. Individuals are likely housed according to treatment needs, with staff and equipment resources assigned accordingly. The individual's support system of family and friends is de-emphasized.
The final-form rulemaking provides new and enhanced requirements that seek to assure a supportive, community-based environment for the resident to be fully informed and involved in making decisions about his care and services. These requirements include new provisions such as reportable incidents and conditions, waivers, resident-home contract, resident rights, complaint procedures, direct care staff training, administrator training, emergency preparedness, medication administration training, safe management techniques, preadmission screening tool, initial assessment and the annual assessment and support plan. The final-form rulemaking supports resident-centered care, choice and privacy.
Personal care homes are not licensed as medical facilities and are not required to hire licensed, certified or registered medical professionals. Although some personal care homes employ doctors, registered nurses, certified nursing assistants, certified registered nurse practitioners and licensed practical nurses to assist in service provision for the residents, this is not mandated.
The requirements in current § 2620.1 are addressed in other sections of the final-form rulemaking. Section 2600.224 (relating to preadmission screening tool) requires a determination within 30 calendar days prior to admission that the resident's needs can be met by the services provided by the personal care home and referral of an applicant whose personal care service needs cannot be met to a local appropriate assessment agency. Section 2600.225 requires a comprehensive written assessment of a resident within 5 calendar days of admission and annually thereafter.
The Department deleted the term ''dependent'' since the revised description of the residents' needs for assistance and supervision is sufficient and more appropriate than the label of ''dependent.''
§ 2600.2(b). Scope
Two commentators suggested clarifying that the exemption for facilities operated by a religious organization for the care of clergy or other persons in the religious profession only applies if they provide care solely for that group.
Response
In response to public comment, this clarification was made.
§ 2600.3. Inspections and licenses or certificates of compliance (redesignated as Inspections and licenses)
One commentator requested clarification about the use of the two terms ''license'' and ''certificate of compliance.'' Two commentators objected to the issuance of a license as a result of an acceptable plan of correction. Eight commentators suggested that annual inspections should be required. One commentator did not support the requirement for annual inspections, stating that this might allow the Department to focus resources on personal care homes that require the most supervision. One commentator noted the potential conflict with the proposed requirement to conduct inspections in 75% of the homes every 2 years as proposed in § 2600.11 (relating to procedural requirements for licensure or approval of personal care homes). In response to proposed § 2600.11, the Department received many comments for and against unannounced inspections. Nineteen commentators supported unannounced inspections, while 17 commentators supported announced inspections. IRRC requested clarification of whether the Department's inspections will be announced or unannounced.
Response
The final-form rulemaking was changed to use only the term ''license'' since it is the term used in Article X of the Public Welfare Code. When the Department finds a regulatory violation, Chapter 20 (relating to licensure or approval of facilities and agencies) requires the legal entity to submit an acceptable written plan of correction, including timeframes, to correct each regulatory violation and assure compliance. Upon submission of an acceptable written plan of correction, a provisional license may be issued.
The Department revised this section to require an annual inspection of each home. Proposed § 2600.11 was revised to eliminate the conflict regarding the frequency of the Department's inspections.
The Department added a requirement for its annual inspections to be unannounced. Beginning with the effective date of this final-form rulemaking, a personal care home will not be notified in advance of the date of the annual inspection. The Department finds that unannounced inspections give a truer picture of the status of the home's compliance with the regulations. Section 2600.2 (relating to scope) requires personal care homes to be in regulatory compliance at all times. This is a change in the inspection process. Under Chapter 2620, annual inspections were announced and scheduled in advance of the inspection.
In 2001, the National Association for Regulatory Administration conducted a survey of 150 licensing agencies of the United States and Canada. Four licensing areas were surveyed: assisted living, child care, developmental disability and child residential. The results were published and entitled ''A Comparative Report on the Frequency and Types of Human Service Licensing Inspections.'' Survey results showed that while the majority of state licensing agencies across all four program types conduct announced inspections for new facilities, over 60% conduct unannounced renewal inspections.
The Department added the requirement to post the home's license inspection summary and a copy of this final-form rulemaking so that residents, families and advocates have the information available to assist in the monitoring of the home.
§ 2600.4. Definitions--ADL and IADL
IRRC requested clarification of whether ''securing health care'' should be added as an IADL. One commentator expressed concern that use of this term depicts a nursing home perspective. One commentator recommended retaining the term ''tasks of daily living'' and using ADL to reference basic hygiene and care functions. Another commentator commended the Department for use of the terms ''ADL'' and ''IADL.''
Response
Securing health care, managing health care, personal hygiene, self-administering medications and proper turning and positioning were added to ADL as critical self-care tasks of everyday life. In a personal care home, these functions can be performed independently or with supervision or assistance.
The terms ''ADL'' and ''IADL'' are widely used in the health care field. Additionally, both ADL and IADL are used by the Department of Aging in regulations for older adult daily living centers in 6 Pa. Code Chapter 11 (relating to older adult daily living centers) and ADL is used in regulations for protective services for older adults in 6 Pa. Code Chapter 15 (relating to protective services for older adults). The term ''IADL'' was expanded to add additional support functions.
§ 2600.4. Definitions--Abuse
Two commentators asked for further clarification of ''abuse.'' One commentator asked for clarification of ''informed consent.'' Another commentator suggested that a resident's informed consent is often invalid because of his cognitive abilities. Thirteen comments suggested consideration of the employee's intent to harm the resident, the weight of the resident's statements in determining the outcome of the investigation and the personal care home's burden of proof.
Response
The definition of ''abuse'' was modified only slightly to clarify the meaning of ''caretaker.'' As to the comments regarding informed consent and whether it is valid when the resident is cognitively impaired, those issues go beyond the scope of the definition. The home will have to make determinations about whether, and to what extent, a resident is capable of giving informed consent. Substantive issues are not appropriately included in the definitions section. The definition of ''sexual harassment, rape or abuse'' in paragraph (iii) of the definition was revised to strike the reference to the Older Adult Protective Services Act (OAPSA) (35 P. S. §§ 10225.101--10225.5102). The inclusion of the reference to the OAPSA was unnecessary because the OAPSA definition incorporates by reference the 23 Pa.C.S. Chapter 61 (relating to protection from abuse) definition of the term in 23 Pa.C.S. § 6102 (relating to definitions). Thus, only the reference to 23 Pa.C.S. Chapter 61 remains. As to the issues of the intent of the employee, the weight to be given the resident's statements and the home's burden of proof, these issues are substantive and not appropriate for inclusion in the definition of ''abuse.''
§ 2600.4. Definitions--Agent
One commentator requested a more specific definition and another commentator suggested that only one agency hold a personal care home accountable.
Response
The definition was revised to include only individuals authorized to act on behalf of the Department.
§ 2600.4. Definitions--Advocate, designee, designated contact person, designated person and responsible person
IRRC and six commentators recommended defining these terms. IRRC asked about the legal authority for these individuals.
Response
The definitions of the terms ''designee'' and ''designated person'' have been added to the final-form rulemaking. The terms ''designated contact person'' and ''responsible person'' are no longer used in the final-form rulemaking and therefore are not defined. The term ''advocate'' has not been defined since it is used once in the definition of ''designated person.''
The legal authority for the designated person is based on the relationship to the resident. The legal authority for the designee is the same as the administrator under this chapter.
§ 2600.4. Definitions--Ancillary staff person
IRRC and two commentators requested clarification of whether ancillary staff may assist with IADLs, but not provide assistance with ADLs. Four commentators suggested expanding this definition. One commentator supported the separate categories of ''ancillary staff'' and ''direct care staff.''
Response
This clarification was made. Ancillary staff may provide assistance with IADL, but not ADL.
§ 2600.4. Definition--Complaint
Two commentators suggested including to whom the complaint must be submitted.
Response
The definition was clarified to provide that the complaint should be submitted to the Department.
§ 2600.4. Definitions--Day and Dementia
The Department added definitions of ''day'' and ''dementia.''
§ 2600.4. Definitions--Direct care staff persons
IRRC requested clarification of whether direct care staff may assist with IADL. Seven commentators asked for a clearer definition. One commentator suggested that this is a term used in nursing homes. Another suggested that direct care staff perform assistance with all ADL activities. Eight commentators disagreed with the inclusion of volunteers, due to training requirements or because volunteers do not conduct staff responsibilities. One commentator disagreed with the inclusion of temporary employees, due to training requirements. Several commentators expressed concern that if volunteers were required to meet direct care staff training requirements, homes would lose volunteers who engage in social activities with residents. Direct care staff, whether employed on a temporary, full-time or part-time basis, must meet the applicable requirements for direct care staff.
Response
The definition was clarified to add IADLs and it no longer includes volunteers.
§ 2600.4. Definitions--Emergency medical plan
Two commentators suggested a more complete definition of emergency medical plan.
Response
Emergency medical plan was further clarified in § 2600.143 (relating to emergency medical plan).
§ 2600.4. Definitions--Financial management
Two commentators requested clarification of the definition of ''financial management.'' Two others suggested that this definition needs to be consistent with personal care services being provided.
Response
The definition was clarified so it does not include solely storing funds in a safe place as a convenience for a resident. The personal care home provides this optional service for residents who may not be able to manage their finances without assistance. Financial management is included in the definition of ''IADL--instrumental activities of daily living.'' This ensures proper safeguards to prevent improper handling of resident funds. Residents who need financial management services are often those least able to oversee the handling of their funds, providing the potential for fraud and exploitation.
For SSI recipients, a State supplement (SSP) is available to help pay for their care. The SSI check, as well as the SSP, is turned over to the personal care home. The recipient is entitled to receive $60 per month for personal needs, as well as half of the rent rebate issued annually from the Commonwealth.
§ 2600.4. Definitions--Fire safety expert
One commentator recommended removal of local volunteer fire company members from this definition, as often the members differ on what action is appropriate, causing confusion for providers and residents.
Response
Department of Labor and Industry building code inspectors and construction code officials were added to the list of options in the definition of fire safety expert to offer the personal care home flexibility to choose its fire safety expert. With a more expansive list, a home may elect not to use a member of a local volunteer fire company as a fire safety expert. However, the Department supports the use of volunteer fire companies as a viable option.
§ 2600.4. Definitions--Immobile resident (redesignated as Resident with mobility needs)
Five comments were received. One commentator indicated that the definition implies that an individual with mobility needs must be accompanied by a staff person or nurse 24 hours a day. Others suggested that the definition is overly broad.
Response
The reference to medication administration was deleted. The term was redesignated as ''resident with mobility needs'' to reflect a more person-centered description of the resident's needs. Since the definition is based on the statutory definition of ''immobile person'' in section 1001 of the Public Welfare Code, the Department is unable to narrow its scope. The Department amended this definition to use the word ''continued'' rather than ''continual and'' to coincide with section 1001 of the Public Welfare Code.
§ 2600.4. Definitions--Life care contract/guarantee
One commentator suggested adding clarifying language that lifetime care will be provided subject to certain terms and conditions stated in the agreement.
Response
This definition was relocated to § 2600.25(f) (relating to resident-home contract) since it is the only section that refers to a life care contract/guarantee. Life care contract refers to a long-term legal agreement between a consumer and a continuing care retirement community, which generally secures housing, services and nursing care, usually all in one location. Continuing care communities are licensed and regulated by the Insurance Department, which examines the financial books and records of a continuing care provider at least once every 5 years to monitor the financial status of the facilities. In addition, the Insurance Commissioner is empowered to take steps to protect the interests of the residents.
§ 2600.4. Definitions--Long term care nursing facility
This definition was deleted. The term used in the final-form rulemaking is ''licensed long-term care facility'' based upon section 1001 of the Public Welfare Code. As used in this chapter, a definition is not necessary.
§ 2600.4. Definitions--Long-term care ombudsman
IRRC noted that some commentators suggested replacing ''older individuals'' with ''residents,'' since ombudsmen serve anyone in certain categories of need, regardless of age. One commentator also suggested limiting the role of the ombudsman to the resolution of complaints, allowing the ombudsman access to the home only if invited by the resident or a representative of the home and having the Department handle all complaint investigations.
Response
The change to replace ''older individuals'' with ''residents'' was not made. This definition is similar to the definition in 6 Pa. Code § 11.3 (relating to definitions) of the Department of Aging's regulation for older adult daily living centers. The Department clarified that the scope of the ombudsman responsibility is for adults who are 60 years of age or older. The Office of the State Long-Term Care Ombudsman, established by the Older Americans Act of 1965 (42 U.S.C.A. §§ 3001--3057g), is charged with the Statewide reporting and investigative system for complaints made by or on behalf of adults who age 60 years of age or older and who are consumers of a long-term care service. The Department of Aging designates the local area agencies on aging to be the local providers of ombudsman services, and coordinates the efforts of all area agencies on aging statewide. Ombudsmen may enter a facility at any time as necessary to advocate on behalf of a resident, must obtain consent from the consumer/complainant before proceeding with the investigation and must work with all parties such as facility staff, family members and regulatory agencies in seeking a resolution to verified complaints.
§ 2600.4. Definitions--Mobile resident
One commentator recommended adding that a mobile resident must be able to exit to point of safety.
Response
Evacuation of the building is addressed in more detail in the fire safety section.
§ 2600.4. Definitions--Neglect
IRRC suggested referencing the definition of ''neglect'' in section 103 of the OAPSA (35 P. S. § 10225.103) rather than copying it verbatim. Seven commentators suggested revising or clarifying this statutory definition, with most recommending that the definition fit into the context of a personal care home and explain further what constitutes neglect.
Response
The Department retained the statutory definition of ''neglect'' in section 103 of the OAPSA. The statutory language was kept in this chapter to make this information readily accessible to the home. The Department clarified that neglect includes the failure or omission to provide care, supervision or services and that neglect may be repeated conduct or a single incident.
§ 2600.4. Definitions--Personal care home
IRRC requested consistent use of one term of ''personal care home.'' IRRC requested clarification of the entity responsible, rather than a global reference to the ''home,'' by using the specific actor, such as ''legal entity'' or ''direct care staff.'' One commentator expressed concern that the definition of ''personal care home'' does not permit individuals in need of a licensed long-term care facility, which eliminates consumer choice and negotiated risk for those individuals who wish to age in place and not reside in a nursing home.
Response
The Department uses the term ''home'' to emphasize the place where the residents live. Where it was necessary to name a specific responsible party, this was done. Where it was not necessary to name a specific responsible party, this was not done, to give the home flexibility in facility management. The definition of ''personal care home'' is established in section 1001 of the Public Welfare Code and precludes the admission of individuals who require the services in or of a licensed long-term care facility.
The Department also clarified that a premises in which four or more adults who need personal care services but who are not receiving such services, reside is a personal care home under this chapter.
§ 2600.4. Definitions--Personal care resident (redesignated as Resident)
Three commentators indicated that many personal care home residents are independent and fully capable of self-care and recommended deleting these individuals from the definition by deleting the word ''may.''
Response
This change was made. The definition is intended to apply to individuals who require personal care services.
§ 2600.4. Definitions--Personal care services
Three commentators recommended adding the terms ''ADL--activities of daily living'' and ''IADL--instrumental activities of daily living'' to this definition.
Response
In response to public comment, this change was made.
§ 2600.4. Definitions--Protective services unit
The Department added a definition of ''protective services unit.''
§ 2600.4. Definitions--Relative
One commentator recommended adding the word ''cousin'' to this definition.
Response
This change was not made. This statutory definition in section 1001 of the Public Welfare Code does not include the word ''cousin.''
§ 2600.4. Definitions--Restraint and manual restraint
IRRC and one commentator recommended compatibility between §§ 2600.4 and 2600.202 (relating to definitions; and prohibitions). IRRC and two commentators asked for consideration that a resident may have an assistive device that he cannot remove independently, and that the resident may have moved to the personal care home to obtain assistance with removal of the device. Three commentators asked for clarification in the definition of chemical restraint, to exclude drugs prescribed by a physician for a psychiatric condition or episodic behavior. One commentator asked for clarification in the definition of restraint, so that locked exit doors are not considered to be a form of restraint.
Response
The definition of restraint was revised to include only a broad definition and not details about the specific types of restraints. The definitions of specific types of restraints were removed from the definition section and appropriately placed in the section on safe management techniques in § 2600.202. Personal care homes may not use restraints, due to the health, safety and emotional risks to the residents. The negative behavioral effects and health and safety risks of restraint usage are supported by research. Use of restraints is so dangerous that hospitals require stringent safety measures and physician oversight when restraints are used. It is unlikely that any personal care home can offer comparable medical oversight. The use of restraints for chronic conditions has been discredited among knowledgeable medical professionals, because they often result in serious injury or death even when properly applied, and when improperly applied, the risk of a serious adverse outcome, including death, escalates.
In response to comments, the definition of ''chemical restraint'' was clarified in § 2600.202.
Only a secured dementia care unit may have locked exit doors, and only through the use of an electronic or magnetic system (see § 2600.233 (relating to doors, locks and alarms)). Locking of exit doors under any other conditions is considered to be a restraint and is prohibited.
§ 2600.4. Definitions--Support plan
Two commentators expressed concern about the timeliness of securing a visiting nurse to conduct an assessment and develop a support plan. Two commentators recommended requiring development and implementation of support plans for only the most frail residents.
Response
These changes were not made. Editorial changes were made in the definition to ensure the support plan will be based on the assessment of the individual. Preparation of accurate resident assessments and support plans help to assure quality service and care for all residents. Ongoing assessments of each resident's service and care needs and updating each resident's support plan when service and care needs change is essential to providing continuous care. A support plan identifies the resident's needs and preferences and outlines how they will be achieved. The plan is developed by the home in collaboration with the resident and the resident's designated person. The goal of the support plan is to promote positive outcomes for the resident.
The assessment is conducted annually, upon significant change in the resident's condition and upon the Department's request. After each assessment of a resident, the support plan is updated to ensure that services being provided are adequate to meet the resident's needs. The support plan includes both the services provided by or contracted by the personal care home and also identifies services arranged by the resident or designated person from outside agencies, health care providers or family members.
§ 2600.4. Definitions--Staff person
The Department added a definition of ''staff person'' to clarify that individuals who work under contract are included.
§ 2600.4. Definitions--Volunteer
IRRC recommended placing subparagraphs (i) and (ii) in the Staffing section. A commentator asked for clarification of whether volunteers and temporary staff who serve 1 day per year must receive the same training as full-time staff persons. Another commentator suggested that requiring training for volunteers who perform the duties of direct care staff persons will prohibit residents from being entertained by volunteers.
Response
The change requested by IRRC was made. The definition of ''volunteer'' was revised to exclude individuals who provide nondirect services or occasional entertainment. Section 2600.54 (relating to qualifications for direct care staff persons) clarifies that volunteers used in the home as staff persons shall meet staff qualifications and training requirements, as they would perform the same duties, whether they receive compensation or not.
§ 2600.5--Access requirements (redesignated as Access)
IRRC and three commentators asked the Department's intent as to the time of day it will conduct its inspections. Four commentators recommended that the Department should have free and full access at any time of the day without notice. IRRC asked the Department to clarify its intent to inspect the personal space and property of residents and if residents have the right to object. IRRC questioned the Department's statutory authority to conduct administrative inspections without time, place and scope restrictions. IRRC questioned who will provide access to the records if the staff person responsible for the records in § 2600.254(b) (relating to record access and security) is not available.
Response
The Department eliminated proposed subsection (a) regarding the Department's free and full access to the home. The proposed requirement simply restated the Department's existing statutory authority in section 1016 of the Public Welfare Code (62 P. S. § 1016) and therefore it is not necessary to repeat it in this chapter.
The Department received questions from IRRC and other commentators regarding the Department's intent as to the time of day during which it will conduct its inspections and the Department's authority for full and free access under the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures. In particular, IRRC questioned whether there are time, place, and scope restrictions on the Department's access to the home consistent with New York v. Burger, 482 U. S. 691 (1987).
As with any Fourth Amendment issue, the Department's inspections will be governed by a general reasonableness standard. The Department will apply section 1016 of the Public Welfare Code and conduct its inspections in a manner consistent with the constitutional reasonableness requirement. The Department has a substantial interest in the inspection of the home in order to protect the health, safety and well-being of the residents and periodic inspections are necessary to serve this interest. Inspections will be conducted within the constitutional boundaries regarding time, place and scope. Inspections will normally be conducted during waking hours. However, if warranted by an emergency, complaint or suspected jeopardy to the residents' health, safety or well-being, an inspection may occur during sleeping hours only as necessary to address the emergency, complaint or jeopardy. The place of the inspection includes the entire licensed premises. The scope of the inspection may require review and inspection of the premises as well as the records and interviews with the staff persons and the residents who live in the home in order to assess compliance with this chapter and Article X of the Public Welfare Code. The inspection may cover any area relating to regulatory and statutory compliance or a situation affecting the residents' health, safety or well-being.
The Department will continue its current practice of requesting permission of the resident before inspecting a resident's bedroom or property, if the resident is available and able to provide permission. Because the inspection of a resident's bedroom or property is sometimes necessary to protect the resident or other residents in accordance with the requirements of this chapter, there may be rare occasions where an inspection of a resident's bedroom or property may be necessary without the express permission of the resident. If a resident expressly denies access to the Department, in no case will the Department enter and inspect a resident's bedroom or property.
Section 2600.254 requires the home to have a policy addressing access to records. The administrator or designee must always be available to provide access, as specified in § 2600.57(a) (relating to direct care staffing).
§ 2600.5(b). Access requirements (redesignated as Access)
IRRC questioned the authority for the Department of Aging and other State agencies to have access to the home and stated this violates the resident's right to confidentiality. Two commentators clarified that Pennsylvania Protection and Advocacy has Federal statutory authority to investigate complaints in homes where residents with disabilities reside. One commentator suggested providing access to local mental health and mental retardation agencies. Four commentators opposed Department access to confidential personnel records.
Response
The Department has amended the section to eliminate the broad authority for other State agencies to have access to the home. The Department has, however, maintained access to the Department of Aging's Older Adults Protective Services Program and the Long-Term Care Ombudsman Program based on its authority under section 304 of the OAPSA (35 P. S. § 10225.304), section 711 of the Older Americans Act of 1965 (42 U.S.C.A. § 3058f) and section 2203-A(24.2) of The Administrative Code of 1929 (71 P. S. § 581-3(24.2)). This authority exists in the current regulation as well in § 2620.62 (relating to access requirements) and has been applied effectively and without incident for over a decade. This authority provides protection from abuse to adults who are older, which the Department does not intend to limit or curtail. Section 306 of the OAPSA (35 P. S. § 10225.306) mandates the protection of the resident's right to confidentiality.
The Department agrees with the commentators that Pennsylvania Protection and Advocacy has Federal authority to investigate complaints in homes where residents with disabilities reside. The specific citations of the Federal authority have been added to the final-form rulemaking.
The Department agrees that county mental health and mental retardation agencies have the right to access homes to provide protection to individuals with mental illness or mental retardation in accordance with section 205(7) of the Mental Health and Mental Retardation Act of 1966 (50 P. S. § 4305(7)). These particular agencies are not listed specifically in the final-form rulemaking since they have long-standing independent authority and their jurisdiction only reaches those homes providing services to individuals with these specific needs.
The Department has authority to inspect staff personnel records at the home to determine compliance with the requirements of this chapter in accordance with section 1016 of the Public Welfare Code. The Department maintains strict confidentiality of all information contained in the personnel records.
Clarification was added to state that a resident may decline the services of the community service organization or community legal services.
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