[35 Pa.B. 2499]
[Continued from previous Web Page] GENERAL REQUIREMENTS
§ 2600.11(b). Procedural requirements for licensure or approval of personal care homes
The Department added a requirement that the Department will reinspect each new home within 3 months of the date of the initial inspection to assure compliance with the regulations for new homes.
The Department relocated proposed § 2600.30 (relating to fees) to this section.
§ 2600.13(a). Maximum capacity
Two commentators requested clarification of the personal care section.
Response
The Department clarified that maximum capacity applies to the entire home, meaning all the areas of the building used as a personal care home. If the home provides services in addition to personal care, such as nursing care, or if parts of the home are used by the operator for private use, this section applies only to the areas of the home in which personal care home services are provided.
The Department eliminated the proposed requirement regarding the limitation of capacity based on local zoning requirements, since zoning is not a health and safety protection for the residents and it is not the scope of this final-form rulemaking. The enforcement of local zoning ordinances is the responsibility of local municipalities.
§ 2600.14(a). Fire safety approval
Nine commentators recommended deletion of this subsection, citing that the Department of Labor and Industry has fire safety standards. Three commentators recommended that local fire safety authorities provide a written fire safety approval.
Response
The Department clarified applicability of the Pennsylvania Construction Code Act (35 P. S. §§ 7210.101--7210.1103) that established the Uniform Construction Code (UCC) as the Statewide building code for this Commonwealth. The final UCC administration and enforcement regulation was published at 34 Pa.B. 319 (January 10, 2004). Under the UCC, occupancy permits are issued by the appropriate enforcement agency, whether the Department of Labor and Industry or the local building authority.
Fire safety is a major health and safety concern, as many residents have died in fires in personal care homes. From 1983 to 2003, there were 275 fires in personal care homes Statewide, resulting in 55 deaths. The causal agents for the fires included careless smoking by residents (79 fires and 32 deaths), arson caused by outside person (5 fires and 0 deaths), arson caused by resident (33 fires and 11 deaths), dryer fire (41 fires and 1 death), other electrical fire (50 fires and 1 death), undetermined cause (20 fires and 10 deaths), kitchen fires (24 fires and 0 deaths) and accidental (23 fires and 0 deaths).
All fire safety protections required in this final-form rulemaking must be in effect at all times to protect residents, especially those who require significant assistance for evacuation, in the event of a fire. Fire safety is a key concern for all residents, as many residents require significant assistance for evacuation due to frailty, medical vulnerability, cognitive limitations and the use of assistive devices for purposes of mobility. A home operating without the required fire safety approval places the residents at grave risk of harm or possible death.
§ 2600.14(b). Fire safety approval
Four commentators recommended the inclusion of actions that the Department will take if a personal care home's fire safety approval is withdrawn or restricted.
Response
The Department's actions regarding regulatory violations can be found in the responses to comments for the enforcement section (§§ 2600.261--2600.270). Oral notification within 24 hours was changed to ''immediately,'' clarifying any question of possible delay in the oral notification process.
§ 2600.14(c). Fire safety approval
Five commentators asked for clarification of what constitutes a reportable structural renovation or alteration and suggested shortening the 30-day reporting time frame.
Response
The Department's intent is to ensure that any structural renovation or alteration to a building in which a personal care home operates meets the approval of the appropriate building authority. The new Statewide UCC requires that the appropriate building authority approve structural changes and renovations, unless cosmetic in nature. Questions about what specific structural change or renovation requires approval should be referred to the appropriate building authority for the municipality in which the personal care home is located.
In response to public comment, the time frame for reporting structural renovations or alterations to a building was shortened to 15 calendar days.
§ 2600.14(d). Fire safety approval
One commentator expressed concern that individuals who are not the Department's representatives can require a personal care home to have additional fire safety inspections.
Response
The Department's intent is to assure that personal care homes are housed in buildings that comply with fire safety protections to safeguard all residents in the event of a fire. This subsection was revised to add that the Department's representatives will request additional fire safety inspections from the appropriate fire safety agency if possible fire safety violations are observed during an inspection.
§ 2600.15. Abuse reporting covered by statute (redesignated as Abuse reporting covered by law)
Seventeen commentators recommended inclusion of a specific timeframe for reporting. One commentator requested definitions for ''suspected abuse'' and ''allegation of abuse.'' Seven commentators suggested the addition of ''neglect.'' Fifteen commentators suggested specifying penalties for failure to report abuse and neglect. Nine commentators suggested requirements regarding the suspension of the perpetrator. One commentator suggested providing the reports to both residents and designated persons.
Response
In response to public comments, several changes were made. The Department added clarification in the definition of neglect in § 2600.4. The Department added a new requirement for immediate notification of the resident and the resident's designated person of a report of suspected abuse or neglect involving the resident. The Department added a subsection regarding section 704 of the OAPSA (35 P. S. § 10225.704), regarding restrictions on employees, that requires the personal care home to immediately submit to the Department's personal care home regional office a plan of supervision or, when appropriate, notice of suspension, if there is an allegation of abuse involving the home's staff persons.
The remaining recommendations were not added, as they fall under the auspices of the OAPSA and its regulation in 6 Pa. Code Chapter 15 (relating to protective services for older adults), which addresses the administration and provision of protective services for older adults, mandatory reporting of abuse and required criminal history record information reports for applicants, employees and administrators of facilities. The terms ''suspected abuse'' and ''allegation of abuse'' are not further defined in the OAPSA or its regulation.
Employees and administrators of personal care homes, nursing homes, domiciliary care homes, adult day care centers and home health care are mandated by the OAPSA to immediately report to the area agency on aging any suspected abuse of an individual of any age who receives care, services or treatment from these facilities. If the abuse involves serious injury, sexual abuse or suspicious death, mandated reporters must also call the police and the Department of Aging at (717) 783-6207. In addition, the reporter may also call the personal care home complaint hotline at (800) 254-5164.
Failure of a mandated reporter to make a report can result in administrative or criminal penalties, see section 706 of the OAPSA (35 P. S. § 10225.706), regarding penalties, and the Department of Aging's regulation for protective services for older adults in 6 Pa. Code § 15.158 (relating to penalties). This section specifies that violations and penalties for failure to comply or for obstructing compliance shall be determined by the Commonwealth agency that regulates the facility, and may include civil and criminal penalties. The civil penalty includes a fine of not more than $2,500. The criminal penalty may include a third degree misdemeanor, which upon conviction, may result in a fine of up to $2,500, imprisonment for not more than 1 year, or both.
§ 2600.16(a). Reportable incidents (redesignated as Reportable incidents and conditions)
Many public comments were received asking for both an expansion of the list of reportable incidents and conditions and a reduction of the list. IRRC asked if a resident's designee or responsible person will be notified of reportable incidents and if an individual other than the Department's representatives will be notified in the event of certain incidents. IRRC noted that some advocates contend that certain third parties, such as the area agencies on aging, should be notified. IRRC asked whether the Department will conduct investigations of reportable incidents and under what circumstances. Twelve commentators suggested providing the reports to both residents and designated persons and mandating that receipt of a report triggers an immediate on-site investigation by the Department.
Ten commentators suggested adding injury of unknown origin, lawsuits, sexual contact between staff and residents and refusal of resident to eat or drink for 48 hours. IRRC noted that some advocates contend that a resident's death, regardless of the reason, should be reported, because a requirement such as this would eliminate the need for an administrator to judge whether the death resulted from unusual circumstances. Four commentators requested clarification of ''attempted suicide.'' Ten commentators suggested a change to report only a serious injury which requires hospitalization.
IRRC questioned whether elopement from a secured unit for any period of time should be added to the list of reportable incidents, as recommended by four commentators. One commentator suggested adding the misuse of a resident's funds to the list of reportable incidents. Ten commentators suggested clarifying that assault must be significant or willful to be reportable. Three commentators proposed excluding false alarms.
Seven commentators suggested reporting of neglect and exploitation, as defined by the OAPSA. Four commentators advocated adding the reporting of inadequate staff to supervise or provide care in the home. Six commentators recommended reporting only a final termination notice from a utility.
Response
The primary goal of an incident management system is to ensure that when an incident occurs, the investigation and corrective action will protect the health, safety and well-being of the resident. The Department will review all reportable incidents and conditions and investigate as appropriate. The final-form rulemaking also requires personal care homes to develop and implement written policies and procedures for reportable incidents and conditions.
Reportable incidents and conditions that the Department determines to be regulatory violations will be classified as required by section 1085 of the Public Welfare Code (62 P. S. § 1085) and assessed a penalty as required by section 1086 of the Public Welfare Code (62 P. S. § 1086). The final-form rulemaking also requires notification of the resident's designated person and the Department's personal care home regional office or the personal care home complaint hotline in a manner designated by the Department.
The Department added the following to the list of incidents and conditions: complaints of abuse, sexual assault, the use of emergency procedures, the unscheduled closure of the home and a violation of health and safety laws. Refusal of a resident to eat or drink over a 24-hour period is covered in § 2600.164(c) (relating to withholding or forcing of food prohibited), which requires reporting to the resident's primary care physician and designated person or family member. The suggested change to report all resident deaths was made. As suggested, the Department clarified the meaning of attempted suicide. In response to a suggestion by the State Board of Nursing, the Department added prescription medication errors to the list of reportable incidents and conditions. Reporting of prescription medication errors is critical so the Department can monitor the effectiveness of the new medications administration training program option in § 2600.190 (relating to medication administration training).
The change regarding the limiting reports to only a serious injury that requires hospitalization was not made. The Department must be notified of any bodily injury or trauma requiring treatment at a hospital or medical facility, including outpatient care. Since many significant illnesses and injuries are now treated on an outpatient basis, reporting is necessary to track and monitor incidents.
An absence of a resident from a secured dementia care unit for any period of time was added to the list of reportable incidents and conditions. Residents who live in secured dementia care units may be more vulnerable to existing weather conditions and any absence could result in the resident's health and safety being jeopardized.
Misuse of a resident's funds, whether managed by the home or not, will be reportable. Section 2600.20 (relating to financial management) was included in the reportable incident and conditions section to ensure all misuse of funds be reported. Assault on a resident must be reported, whether it is significant or willful, or not. The Department revised the reporting of fire department call to exclude false alarms.
The addition of reports of neglect and abuse is addressed in § 2600.15 (relating to abuse reporting covered by law). A violation of the staffing requirements of this chapter will be addressed through the enforcement provisions of the final-form rulemaking. The final-form rulemaking requires that any termination notice be reported. It is necessary for the Department to receive reports of a termination notice from a utility to allow time for a proactive response. A home's inability to meet financial obligations, such as utility payments, may be a sign of fiscal distress, which may negatively impact the health, safety and well-being of the residents. If uncorrected, this could lead to resident harm or relocation.
§ 2600.16(b). Reportable incidents (redesignated as Reportable incidents and conditions)
IRRC questioned whether the Department is developing a standard procedure that may be used by all homes to report incidents. IRRC suggested that a model would enhance consistency of reporting, give reasonable assurance to providers that they are meeting the Department's objectives and save providers time and money. Fourteen commentators recommended adding language to reflect that the written policies and procedures are in accordance with applicable State laws.
Response
The Department is developing a standard incident and condition reporting form that must be used by all homes. The Department will also develop model procedures that may be used by all personal care homes to provide effective practices for reportable incidents and conditions. The review of reportable incidents and conditions will serve to enhance timely and appropriate corrective actions in response to incidents and conditions, if needed, to prevent recurrence.
Language was not added to require that the written policies and procedures comply with applicable State laws. A personal care home's compliance with applicable Federal, State and local statutes, ordinances and regulations is required in § 2600.18 (relating to applicable health and safety laws).
§§ 2600.16(c)--(e). Reportable incidents (redesignated as Reportable incidents and conditions)
IRRC noted the concern of many providers with the addition of burdensome paperwork. IRRC questioned whether the Department considered listing reportable incidents, along with corresponding levels of reporting requirements for each. Eight commentators suggested defining ''designee'' and adding ''to the responsible party or legal representative of the resident.'' Five commentators suggested changing requirement in § 2600.16(c)--(e) to state ''administrator,'' rather than ''home,'' using language from § 2620.63(a)--(b), and not requiring issuance of three reports for incidents not covered by the OAPSA. Three commentators recommended that the Department provide personal care homes with the necessary training and assistance on conducting investigations.
Response
The Department agrees that there should be a balance between reporting, investigation and paperwork requirements. Requiring more reports than are necessary could create a paperwork backlog that does not serve residents. The term ''designated person'' was added in § 2600.4. A subsection was added requiring the reporting of an incident to the resident and the resident's designated person. The recommended change to designate the ''administrator'' rather than the ''home'' was not made. It is not necessary for the Department to dictate these internal reporting procedures, as long as reporting is timely. The Department will provide training and technical assistance to providers on incident and condition reporting and investigation. The Departmental incident and condition report form will be developed with input from external stakeholders prior to implementation.
§ 2600.17. Confidentiality of records
IRRC referenced comments for § 2600.5 (relating to access) and noted that this section should be consistent with § 2600.254. Over 20 commentators opposed requiring the home to obtain a written consent to release information when transporting a resident to the emergency room or to a doctor and recommended specifying which staff persons may examine resident records.
Response
Resident records are confidential and private. The Department revised the final-form rulemaking to clarify that a home may not release the resident's record to anyone other than the resident, the resident's designated person, the resident's power of attorney, staff persons for the purposes of providing services, agents of the Department and the long-term care ombudsman. Section 2600.143, regarding emergency medical plan, specifies the information that must accompany a resident who needs emergency medical attention.
§ 2600.18. Applicable health and safety laws
Eleven commentators recommended requiring that a personal care home be in compliance with these applicable laws before a license will be granted. IRRC requested that applicable laws be listed in the final-form rulemaking.
Response
Compliance with applicable laws is required. At the recommendation of the legislative committees, the Department has not included a list of applicable laws. The list of applicable laws is unnecessary since applicable laws apply independently of this final-form rulemaking.
§ 2600.19. Waivers
IRRC suggested alternate language to clarify that the home cannot guarantee the absence of jeopardy. IRRC suggested that subsection (a)(1) and (3) are duplicative. Eleven commentators requested more flexibility in obtaining waivers. Two commentators suggested allowing waivers of scope, definitions, applicability and resident's rights. Six commentators suggested notice of waiver requests to the resident's designated person and the local ombudsman, as well as to the residents as proposed. Five commentators requested that waivers be reviewed annually. IRRC questioned the intent to grandfather existing facilities. Six commentators recommended permanent waivers of existing physical site conditions of existing homes.
Response
The Department may, within its discretion and for good cause and sufficient reason, grant a waiver to a specific section. A waiver will be granted only when the health, safety or well-being of the residents are not negatively affected. Waivers are subject to review by the Department at any time to determine compliance with conditions required by the waiver. The Department reserves the right to revoke a waiver if the conditions required by the waiver are not met.
This section is in place to reduce risk and the likelihood of jeopardy. If a home requests a waiver they must show why the waiver of the regulation will not jeopardize the residents. The home must indeed show the absence of jeopardy to receive an exemption from the regulation. Subsection (a)(1) and (3) are not duplicative. The requirement to show an alternative for providing an equivalent level of protection is to assure that by waiving the regulation the resident's are not exposed to added risk. The requirement to show how the residents will benefit from the waiver goes above and beyond the equivalency requirement and is intended to show why it is best to meet the alternate standard rather than the regulation. The standards for granting a waiver are intentionally set at a high, but doable level to protect the residents.
A waiver to the scope, definitions, applicability or resident's rights sections of the final-form rulemaking is not permitted as these are the core foundations for the protection of the resident's health and safety protection. In the case of scope, applicability and definitions, much of these requirements are governed by statute.
Discussion with, and notification of, the resident and the resident's designated person was added in response to comment. The requirement to review waivers annually was also added in response to public comment.
The Department has provided exemptions or delayed implementation for many of the new requirements such as fire exits, bathrooms, qualifications for staff persons and staff training. The Department deleted the proposed language regarding denial of structural waivers for a new facility, new construction or renovations. An existing home may submit a request for a waiver. All waivers previously granted are void 1 year after the effective date of this final-form. Thereafter, a new waiver request is required.
§ 2600.20. Resident funds (redesignated as Financial management)
Nineteen commentators opposed this section, stating that it is not appropriate for the level of financial assistance that a home provides and recommended retaining current § 2620.35 (relating to financial management). IRRC inquired who may access a resident's records and funds if the home assumes responsibility for maintaining a resident's financial resources. IRRC asked whether ''maintaining'' means the same as ''managing,'' as defined in subparagraph (i) under ''financial management'' in § 2600.4.
Response
The Department revised, but retained, this section. The Department's intent is to ensure accountability and tracking of resident funds and expenditures and prevent theft and exploitation. Access to financial and other resident records is governed by § 2600.254. The Department is unable to respond to IRRC's question about terms, since the term ''managing'' is not found under the definition of financial management in § 2600.4(i). Subsection (b) was clarified to apply even if a home simply maintains or holds the resident's funds.
§ 2600.20(a) and (b). Resident funds (redesignated as § 2600.20(b). Financial management)
Five commentators suggested that a separate record of each resident's financial resources, including the dates, amounts of deposits, amounts of withdrawals and current balance, be kept. Six commentators suggested that withdrawals be documented with dated receipts. Four commentators suggested that the requirement for a home to keep a record of gifts and other funds received by or deposited with the home on behalf of the resident is duplicated.
IRRC contested the requirement for documentation of counseling sessions, concerning the use of funds and property since this goes beyond financial management. Many homes indicated they are not qualified to provide financial counseling. IRRC asked whether a professional financial advisor would conduct this counseling.
Eight commentators suggested deleting the requirement that a home may not prohibit the resident's right to manage their own finances.
IRRC questioned the meaning of ''if available,'' whether it means cash on hand in the personal care home or in the resident's bank account. IRRC indicated concern about the possible need to store large amounts of cash in the home and suggested limiting this service to business hours. IRRC noted that some providers were distressed regarding possible theft and recordkeeping errors and staff handling cash when an administrator is not present. Thirty commentators recommended that money should be available during regular business hours only.
Eight commentators objected to paperwork and suggested that the home maintain receipts only for all expenditures over $15. Eight commentators suggested requiring interest bearing savings accounts in the residents' names only.
Six commentators requested clarification to prohibit the owners of the home, its administrators and employees from being assigned power of attorney or appointed guardian of resident or resident's estate.
Thirteen commentators suggested that an annual written account be provided only at the request of the resident or designated person.
Response
This section was revised and clarified. A record of financial transactions is required in § 2600.20(b)(1). A separate record for each resident is not required since it may be an unnecessary, administrative burden on the home. The requirement for a written receipt of disbursements is found in § 2600.20(b)(3). The Department clarified that disbursement must only be made during business hours. The duplicative requirement regarding gifts and other funds was deleted.
The requirement for financial counseling was deleted. The Department does not intend for a home to secure a professional financial advisor for residents. The requirement regarding the resident's right to manage his own financial affairs was clarified. The suggestion to include receipts for only disbursements of more than $15 was not made since this lack of documentation could result in theft of resident funds. All deposits and expenditures must be documented with written receipts to ensure accurate accounts of all expenditures. As suggested, interest bearing accounts must be in the resident's name. The clarification was made identifying the legal entity, administrator and staff persons to be prohibited from being assigned power of attorney or guardianship of a resident or a resident's estate.
The Department did not change the requirement for a written account to be provided only upon the request of the resident or designated person. This requirement was changed to quarterly so that the resident's funds may be closely monitored by the resident and his designated person.
The requirement relating to refunds was deleted from this section and clarified in § 2600.28 (relating to refunds).
§ 2600.22. Legal entity
The Department deleted this proposed section since it is not necessary. Compliance with the final-form rulemaking by the legal entity is required under § 2600.2 and § 2600.3 (relating to inspections and licenses).
§ 2600.23. Personnel management
In response to general comments relating to unnecessary paperwork and recordkeeping the Department deleted this proposed section.
§ 2600.23. Admission (new designation)
A section on admission was added to clarify the documents necessary upon admission to the home.
§ 2600.24. Tasks of daily living (redesignated as § 2600.23. Activities)
Thirteen commentators recommended adding assistance with IADLs to their assessment and support plan.
Response
This change was made.
§ 2600.25. Personal hygiene (redesignated as § 2600.24)
The Department added undressing, nail care, foot care and skin care to the list of personal hygiene items.
§ 2600.26. Resident-home contract: information on resident rights (redesignated as § 2600.25. Resident-home contract)
Twenty-nine commentators requested deletion of this proposed section, as the current contract under the current regulation works well and does not need to be changed.
Response
The Department's intent is full disclosure in the contract to give prospective and current residents and family members the key information they need to identify whether a personal care home can meet their individual needs. Searching for a personal care home is difficult for prospective residents and family members, especially when a decision must be made quickly, such as when a person is no longer safe living alone. Because personal care homes vary, it is important that residents and family members understand what specific services a personal care home will provide or arrange, what services cannot be provided, how much it charges, when and how the services and residency in the home can be terminated and the rights and responsibilities of the resident.
This upfront disclosure in the contract serves to avoid or resolve conflicts between a resident and the home. The contract sets forth the agreement between the parties. The contract is the legal basis for the enforcement of the resident's rights.
§ 2600.26(a). Resident-home contract: information on resident rights (redesignated as § 2600.25(a). Resident-home contract)
Four commentators suggested requiring the personal care home to complete, review and explain the contract's contents with the resident and the resident's designated person, if any, in a language or mode of communication which they can understand.
Response
The home is required to review and explain the contract's content to the resident and the resident's designated person, if any, prior to signature.
§ 2600.26(a)(1). Resident-home contract: information on resident rights (redesignated as § 2600.25(c). Resident-home contract)
Three comments received suggested deletion of proposed subparagraphs (ii), (iii), (xi) and (xii) as unnecessary.
Response
These changes were not made, because they relate to full disclosure of the services a resident would receive, which will assist a resident and his family to make an informed decision, and clarifies the arrangements between the resident and the home. The Department's intent is full disclosure in the contract.
§ 2600.26(a)(1). Resident-home contract: information on resident rights (redesignated as § 2600.25(c). Resident-home contract)
Four commentators recommended prohibiting staff from accepting any portion of the resident's personal needs allowance as a gift or in exchange for providing services.
Response
This change was not made. Subsection (c)(1) requires that each resident shall retain, at a minimum, the current personal needs allowance as the resident's own funds for personal expenditure and that a contract to the contrary is not valid. In addition, § 2600.20, regarding financial management, prohibits any commingling of the resident's personal needs allowance with the home's or staff person's funds or the home's operating accounts.
§ 2600.26(a)(1). Resident-home contract: information on resident rights (redesignated as § 2600.25(c). Resident-home contract)
IRRC questioned whether, in addition to the ''the actual amount of allowable resident charges for each service or item,'' additional or optional services, which are not included in the basic contract, must be itemized. IRRC questioned whether the list of services included in the contract must be listed, along with the charge to the resident for each of these items. IRRC asked for clarification of whether personal care homes that ''bundle'' services covered by an agreed-to contract price must list a price for each ADL and IADL. Sixteen commentators offered clarifying language.
Response
The intent of the section is to clarify what services the resident will receive and the cost, to assist an individual in need of long-term care to negotiate his care and services. This requirement will also serve providers, by disclosing this information up front.
§ 2600.26(a)(1). Resident-home contract: information on resident rights (redesignated as § 2600.25(c). Resident-home contract)
Ten commentators suggested adding information about refunds for a voluntary departure from the home.
Response
This change was not made. Refunds as a result of a resident's voluntary departure from the home are covered in § 2600.29.
§ 2600.26(a)(1). Resident-home contract: information on resident rights (redesignated as § 2600.25(c). Resident-home contract)
Eleven commentators requested clarifying language for ''financial arrangements.''
Response
''Financial arrangements'' relates to the arrangements for the resident's funds if the home provides assistance with financial management. The conditions must be consistent with § 2600.20 and also specify the handling of the rent rebate, if any.
§ 2600.26(a)(1). Resident-home contract: information on resident rights (redesignated as § 2600.25(c). Resident-home contract)
IRRC asked how home rules are enforced. In conjunction with §§ 2600.42(u) and 2600.228 (relating to specific rights; and notification of termination), IRRC asked whether a resident's breaking of the rules in the contract constitute a breach of contract, for which the personal care home may discharge the resident. IRRC inquired what the personal care home may do to protect the health and welfare of other residents if one resident continues to smoke in a nonsmoking facility or continually violates the civil rights of other residents. IRRC requested examples of ''requirements of home services.''
Response
The intent of home rules is to facilitate a harmonious living environment in the home. Home rules are incorporated into the resident-home contract. A home is required to inform the resident of the home rules and to give 30 days' written notice prior to the effective date of a new rule. The home rules must specify, for example, whether the home permits pets on the premises. A resident has the right to recommend changes in home rules, without intimidation, retaliation or threat of discharge.
§ 2600.26(a)(1). Resident-home contract: information on resident rights (redesignated as § 2600.25(c). Resident-home contract)
IRRC asked what recourse a home has to make immediate changes to the contract if needed for the health and welfare of the resident.
Response
Providers may use addenda to the original contract to cover immediate changes in the contract.
§ 2600.26(a)(1). Resident-home contract: information on resident rights (redesignated as § 2600.25(c). Resident-home contract)
Fourteen commentators recommended adding ''based on needs identified in the assessment'' to subsection (a)(1)(xi). Two commentators suggested deleting subsection (a)(1)(xi) and (xii). Three commentators recommended referencing § 2600.42 and requiring an actual list of resident rights as it appears in the proposed regulation.
Response
The Department deleted proposed subsection (a)(1)(xii) and added information about charges to the resident for holding a bed.
§ 2600.26(a)(3). Resident-home contract: information on resident rights (redesignated as § 2600.25(e). Resident-home contract)
The proposed rulemaking gives a new resident 72 hours to rescind a contract. IRRC questioned whether a similar right-of-rescission should be extended to the personal care home, in the event that further information indicates the placement might be inappropriate. Nineteen commentators suggested permitting the administrator to require a 30-day prior written notice from a resident who chooses to leave the home.
Response
This section was clarified to require a resident to pay only for the services he receives. Section 2600.228, regarding notification of termination, requires the home to provide a 30-calendar day advance written notice to the resident, the designated person and the referral agent if the home initiates a discharge or transfer of a resident, or if the legal entity chooses to close the home. A 30-calendar day advance written notice is not required if a delay in discharge or transfer would jeopardize the health or safety of the resident or others in the home, as certified by a physician or the Department. This section also requires that a resident may not be made to leave the home prior to 30 calendar days following the resident's receipt of a written notice from the home regarding the intended closure of the home, except when the Department determines that removal of the resident at an earlier time is necessary for the protection of the health and safety of the resident.
§ 2600.26(c). Resident-home contract: information on resident rights (redesignated as § 2600.25(g). Resident-home contract)
Seven commentators suggested adding that the resident, the resident's power of attorney, guardian of estate, guardian of person and party responsible for payment, if applicable, received a copy of the signed admission contract.
Response
This change was not made. Those signing the contract are entitled to a copy of it and may share the copy as they choose.
§ 2600.26(d). Resident-home contract: information on resident rights (redesignated as § 2600.25(h). Resident-home contract)
Ten commentators suggested that the basic, in-house needs addressed in resident's support plan shall be available to the resident 365 days a year. IRRC asked whether ''personal care'' or ''ADL'' should be inserted prior to ''service needs,'' as some optional services and IADLs might be occasionally unavailable, such as on holidays. IRRC suggested that the Department give guidance in addressing the protection of residents from unforeseen changes in the food choices and menus at the personal care home.
Response
These changes were not made. Only services necessary for the resident's health, safety and well-being must be provided on a holiday. Section 2600.162 (relating to meals) requires the posting of menu changes in a conspicuous and public place in the home in advance of the meal. Meal substitutions must meet the requirements for nutritional adequacy.
§ 2600.27. Quality management (redesignated as § 2600.26)
Three commentators suggested defining quality assessment and management plans and plan review. Commentators also recommended that homes decide their own quality management tasks, based on facility size and levels of care. Two commentators suggested removal of councils and addition of scheduled open door meetings between the resident, his designated person and the administrator or his designee. The commentators noted that open door meetings are a more effective and affordable alternative.
Response
This section was revised. Each home will establish and implement a quality plan that reviews and evaluates reportable incident and condition reporting, complaint procedures, staff training, licensing violations and plans of correction and resident or family councils. The quality management plan will include the development and implementation of measures to address the areas in need of improvement.
The Department's intent is to have the home review and resolve systemic issues. A quality review of resident and family councils only applies if the home has one or both. Councils typically provide residents and families the opportunity to periodically meet and discuss concerns about the home's policies and services and to talk with the home management about implementing change. Homes that wish to adhere to a substitute requirement that meets the intent of the regulation may submit a request for a waiver in accordance with § 2600.19 (relating to waivers).
§ 2600.28(d) and (e).Supplemental Security Income (SSI) recipients (redesignated as § 2600.27 (d) and (e). SSI recipients)
Six commentators stated that the section prohibits third party billing for personal care services. Eight commentators suggested allowing third party billing for everything. Commentators requested allowing personal care homes to seek private third party payment for a service that is not funded by public dollars.
Response
Third-party payments made on behalf of an SSI recipient and paid directly to the home are permitted in § 2600.27 (relating to SSI recipients).
§ 2600.29. Refunds (redesignated as § 2600.28)
IRRC questioned how to determine the due date of a refund in the event of the death of a resident when the room is vacated and within 30 days of death. Several commentators suggested refunds in the event of a resident's death be made within 30 working days after the resident's death or upon request of resident's estate. Several commentators requested deletion of this requirement.
Response
This section was revised to clarify the time frames for refunds upon the death of a resident. If a resident is under 60 years of age, the refund shall be made within 30 calendar days of the resident's room being cleared of personal property. If the resident is over 60 years of age, the refund shall be made in accordance with the Elder Care Payment Restitution Act (35 P. S. §§ 10226.101--10226.107).
§ 2600.29(a). Refunds (redesignated as § 2600.28(a))
Fifteen commentators suggested replacing ''discharge'' with ''upon departure'' and replacing ''within 1 week'' to ''upon departure.''
Response
''Discharge'' was not replaced with ''upon departure''; however, ''within 1 week'' was replaced with ''2 business days.'' The refund was not changed to upon departure because the funds may not be available if the discharge or transfer is not on a business day.
§ 2600.29(e). Refunds.(redesignated as § 2600.28(e))
Twenty-five commentators suggested a 30-day billing cycle, and stating in the contract that refunds upon death are at the personal care home's discretion.
Response
Clarification was made that if the deceased resident is over 60 years of age, Commonwealth law requires the refund to be made in accordance with the Elder Care Payment Restitution Act.
§ 2600.29. Hospice care and services (new section)
This section was added to confirm that provisions can be made to allow residents to bring in additional end-of-life care and services as needed, such as hospice, to supplement the services and staff of the home. Hospice provides patient-focused care options, pain and symptom management and a range of psychosocial services to patients and their families through the duration of life-limiting illness.
RESIDENT RIGHTS
§ 2600.41. Notification of rights and complaint procedures
Commentators noted that some residents do not maintain family ties or that they have no family. IRRC questioned whether ''family'' was the correct term in subsection (a) and suggested deleting ''fear or'' in subsections (a) and (e). The Department received 37 comments requesting the addition of a resident's designated person in addition to family members. Three commentators suggested addressing proposed subsections (a)--(d) and (h) within the contract. Several commentators suggested deletion of subsections (a) and (b).
Response
Throughout the final-form rulemaking, ''family'' was replaced with ''designated person,'' as appropriate. Fear of retaliation was deleted since this is subjective and difficult to measure. The items specified on rights remain in this section to clearly delineate the rights of the resident. The resident's rights should be placed in the resident-home contract as well.
§ 2600.41(c). Notification of rights and complaint procedures
Six commentators suggested adding resident's power of attorney, guardian of person or estate and designated person, if applicable.
Response
The subsection was changed to state that the Department's poster of the list of resident's rights shall be posted in the home. Subsection (d) was changed to state that the rights and complaint procedures shall be given to the resident and their designated person upon admission to the home. Subsection (e) was revised to provide for the resident and the resident's designated person to acknowledge receipt of the information regarding the resident's rights and complaint procedures.
§ 2600.41(f). Notification of rights and complaint procedures
Ten commentators requested that subsection (f) address all complaints, not just complaints regarding a violation of resident rights.
Response
This subsection was deleted and is addressed in new in § 2600.44 (relating to complaint procedures), which addresses all complaints, as suggested by the commentators.
§ 2600.41(g). Notification of rights and complaint procedures
Fourteen commentators requested that the home render a decision within 72 hours upon receipt of a complaint, as opposed to the proposed 14-day period.
Response
This subsection was deleted and is addressed in a new § 2600.44(e) and (f). The Department shortened the time period within which a decision on the complaint is rendered to 48 hours for an initial status report and 7 days for a written decision.
§ 2600.41(h). Notification of rights and complaint procedures
Four commentators requested informing the resident of his right to file a complaint to Pennsylvania Protection and Advocacy, Inc.
Response
This subsection, as well as subsections (i) and (j), were deleted and are addressed in a new § 2600.44. The right to file a complaint with Pennsylvania Protection and Advocacy, Inc. was added as suggested by commentators.
§ 2600.42(a). Specific rights
IRRC questioned whether it is considered discrimination if a resident is discharged due to the development of a disability that a home is not equipped to handle, either because of the design of the physical plant or lack of qualified staff. IRRC asked whether the Department considered using the Pennsylvania Human Relations Act (PHRA) (43 P. S. §§ 951--963) as guidance for protected classes.
Response
This would depend largely upon the burden on the home that would be necessary to accommodate the resident. If it would be an undue financial burden on the home, or if the resident's protection needs cannot be reasonably met by the home, there would be no discrimination if the home helped the resident to find more appropriate services to meet his individual needs.
As to IRRC's question regarding protected classes under the PHRA, the Department has incorporated the PHRA, as well as the Americans With Disabilities Act of 1990 (42 U.S.C.A. §§ 12101--12213), into the list of applicable laws in § 2600.18.
§ 2600.42(b). Specific rights
Five commentators requested including the right to be free from intimidation. One commentator suggested adding that residents may not be disciplined in any way.
Response
In response to this comment, the addition of the right to lodge a complaint without intimidation was added in § 2600.41(a) (relating to notification of rights and complaint procedures). The language in § 2600.42(b) was revised to add intimidation, the prohibition of discipline and to clarify that abuse includes both physical and verbal abuse.
§ 2600.42(e). Specific rights
IRRC questioned whether requiring free local telephone calls prohibits a home from providing telephone service with pay phones or charging residents for basic telephone service. Fifteen commentators suggested deletion of subsection (e).
Response
This subsection was revised to specify that the home must provide residents with free nontoll telephone calls. Charges for toll calls are acceptable.
§ 2600.42(f). Specific rights
Three commentators requested clarifying that the residents must pay for postage and mailing costs.
Response
This change was not made. This does not imply that the home must pay the resident's postage or mailing costs. The resident's responsibility to pay for their own postage and mailing should be addressed in the resident-home contract.
§ 2600.42(g). Specific rights
Fourteen commentators requested deletion of the requirement that the home be open 365 days per year.
Response
While the proposed subsection was deleted, § 2600 .25(h) requires that requires the service needs addressed in the resident's support plan shall be available every day of the year. Since this is a resident's home and not a public hotel or lodging site it may not be closed during holidays or other times during the year. An exception may be made if all residents in the home choose to leave the home to visit family or for other reasons for a specific period of time.
A new provision was added to this subsection to require the right of the resident to communicate privately with the ombudsman. This is an important right of a resident to protect his right to inquire about services or file a complaint privately.
§ 2600.42(i) and (j). Specific rights
IRRC requested clarification of assistance, accessing and attaining, and asked who is responsible to pay for and provide these services. Thirty commentators requested deletion of subsection (i), and retention of § 2620.33 (relating to tasks of daily living). Thirty-nine commentators requested revising subsection (j) to selecting clothing.
Response
Subsection (i) was clarified to use the term ''health services'' rather than list a few specific health services.
In response to public comment, subsection (j) was changed to require assistance in obtaining and keeping clean, seasonal clothing. The home is not responsible for payment of health services or for purchase of a resident's clothing. The Department clarified that the resident's clothing may not be shared with other residents.
The terms ''assistance'' and ''accessing'' are not defined since the normal dictionary definitions apply.
§ 2600.42(l). Specific rights
IRRC questioned whether the availability of personal storage space may be taken into account with the resident's right to purchase, receive and use personal property.
Response
This subsection was changed to clarify that the resident has the right to furnish his room and purchase, receive, use and retain personal clothing and possessions. Personal storage space is addressed in § 2600.101(q) (relating to resident bedrooms).
§ 2600.42(n). Specific rights
IRRC asked for clarification of the nature and extent of the assistance that a home must provide if a resident wishes to relocate to another facility.
Response
The Department clarified assistance to include the following: helping the resident get information about living arrangements, making telephone calls and transferring records.
§ 2600.42(o). Specific rights
The Department clarified that the resident has the right not only to freely associate, but also to organize groups of residents within the home.
§ 2600.42(q). Specific rights
IRRC asked if residents are required to perform housekeeping tasks in their personal spaces, if they may perform volunteer tasks if they choose and who will monitor compliance.
Response
This subsection was clarified in response to IRRC's question. The intent is not to require the resident to perform housekeeping tasks in their personal space, but to allow the resident to voluntarily perform tasks. Monitoring of compliance with this requirement, as with all the requirements of this chapter, is the Department's responsibility.
The number of hours the home must be opened to visitors was increased from 8 to 12 hours per day to provide greater opportunity for the resident to entertain family and friends, since this is the resident's home. The Department strongly encourages homes to have an open, 24-hour per day visitation policy, if at all possible.
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