[40 Pa.B. 4073]
[Saturday, July 17, 2010]
[Continued from previous Web Page] § 2800.63. First aid, CPR and obstructed airway training
IRRC commented that the requirement for ''sufficient staff'' is vague and does not provide a standard for protection that can be understood and implemented.
Response
The Department agrees with the comment and specified a numeric ratio of 1 staff to 35 residents in the final-form rulemaking.
§ 2800.98. Indoor activity space—Square footage requirements
§ 2800.101. Resident living units—Square footage requirements
§ 2800.104. Dining room—Square footage requirements
IRRC questioned why § 2800.101 (relating to resident living units) does not allow for exceptions to the living unit size as specified in Act 56. IRRC further questioned why the Department specified square footage size requirements for indoor activity spaces such as common areas and dining rooms and pointed out that parallel provisions in the PCH regulations do not have this specificity.
Response
Written request for a waiver of a specific requirement can be made under § 2800.19 (relating to waivers). Since there is already a section that provides for requesting a waiver of a requirement, the Department did not find it necessary to include a specific waiver subsection within proposed § 2800.101. Nevertheless, in response to IRRC and stakeholder comment, the Department revisited this issue on final-form rulemaking and decided to amend this section to include the same language in Act 56 regarding allowing exception to the size of the living unit to be made at the discretion of the Department. See section 1021(a)(2)(v) of the code.
The Department consulted with the Housing and Finance Agency, which recommended specifying the square footage for the indoor activity and dining room space and the Department found that the recommendations were appropriate since they are clear, measurable and enforceable. Since the Department is directed to ''meet or exceed'' the standards in the PCH regulations, these square footage requirements build on the PCH regulations in § 2600.98 (relating to indoor activity space) which require that the combined living room or lounge areas must ''accommodate all residents at one time.''
§ 2800.101. Resident living units—Development of square footage requirements
IRRC questioned how the Department developed the square footage requirements for resident living units. IRRC also asked what study or research was relied upon for determining the minimum square footage selected and how they best implement Act 56. IRRC also asked why these specific square footage requirements are necessary to protect public health, safety and welfare.
Response
If an individual resides in an ALR, that individual's living unit will be that person's home. The Department finds that the General Assembly, in enacting Act 56, intended that the minimum square footage for living units an ALR must be sufficient for a variety of types of consumers with a variety of needs. To accommodate a home-like atmosphere, including the required living space, bedroom space and kitchen capacity, the Department determined that adequate square footage would be required.
During the development of the proposed rulemaking, the Department asked for feedback from industry stakeholders and consumers regarding minimum square footage requirements for resident living units. Industry stakeholders argued that the minimum square footage for living units for new facility construction should be 150 square feet and for existing construction, 125 square feet. In contrast, consumers expressed concern that 250 square feet was inadequate, particularly for wheelchair users. Individuals in ALRs, as they age in place or if they have a disability and use a wheelchair, require sufficient room to move about comfortably and to have visitors come to their living units. The Department also surveyed other states as to their square footage requirements for ALRs. A number of states that are at the forefront of the assisted living movement, including Vermont, Iowa, Louisiana, Oregon, Washington and Hawaii, have square footage requirements over 200 square feet for individual living units. The Department also finds that this level of square footage is the direction that the industry is moving towards.
Based on comments and further meetings with stakeholders, the Department decided, however, to reduce the minimum square footage for new construction from the proposed 250 square feet to 225 square feet. The 225 square feet requirement should meet the needs of the residents for adequate space to accommodate both their living needs and mobility needs but also balance the concerns expressed by industry stakeholders related to costs. The Department notes that, according to the survey it conducted regarding square footage, there are PCHs that are interested in pursuing licensure as ALRs that easily meet or exceed the minimum 225 square feet requirement. The Department also specified that if two individuals share a room, the minimum square footage must be 300 square feet in the living unit.
With respect to IRRC's other comment regarding existing facilities and the square footage requirements, IRRC recommended that the Department identify how many licensed PCHs there are in this Commonwealth and how many meet the proposed minimum standard of 175 square feet in each living unit. Per IRRC's recommendation, as previously mentioned, in October 2008, the Department conducted a survey of the 1,437 PCHs licensed in this Commonwealth. It received 723 responses to the survey. Using the originally proposed square footage of 175, the Department estimated that there were approximately 220 PCHs that had at least 90% of their rooms that would meet this requirement.
Although the survey results support the minimum square footage requirements in the proposed rulemaking for existing facilities, based on comments and additional meetings with stakeholders, the Department decided, however, to reduce the square footage for existing facilities from the proposed 175 square feet to 160 square feet. Based on survey results, this change will increase the number of PCHs to approximately 243 that had at least 90% of their rooms that would meet this requirement.
This standard should balance the competing interests between existing facilities that want to convert to an ALR and the interests of the consumers and other interested parties who have requested adequate living space for residents of ALRs. The Department also specified that if two individuals share a room, the minimum square footage shall for existing facilities be 210 square feet in the living unit. Finally, as previously noted, the Department clarified the language in this section to provide that exceptions to the size of the living unit may be made at the discretion of the Department. This mirrors the language in Act 56. See section 1021(a)(2)(v) of the code.
§ 2800.101. Resident living units—Relationship between square footage, affordability and accessibility
IRRC asked that the Department explain how it researched and assessed existing licensed PCHs in setting the square footage requirements in the final-form rulemaking for ALRs. It asked the Department to consider the input from the Pennsylvania Health Care Association and the Pennsylvania Association of Non-Profit Homes for the Aging regarding their comment that the square footage proposed by the Department appears high when compared to other states and that some consumers may wish to have a smaller living unit to save money. Also, IRRC requested that the Department explain how the method of specifying square footage will best provide for affordability and accessibility of ALRs for the population of this Commonwealth.
Response
The Department assessed existing PCHs in this Commonwealth by conducting a survey, the results of which are previously stated. The Department also received numerous comments from long-term living trade associations and had numerous discussions with them on this topic. In addition to this input, in considering the minimum square footage requirements for ALRs, the Department looked at other states to assess their requirements and found that 11 states (Washington, Oregon, Iowa, Arizona, Wisconsin, West Virginia, Louisiana, Vermont, Kansas, Kentucky and Hawaii) have single room occupancy requirements of 220 or more square feet. The Department finds that many of these states have vibrant assisted living programs and when the Commonwealth's program is underway, it will be in the top 12 states in terms of ALR room size.
§ 2800.101. Resident living units—Square footage requirements for residences in existence prior to the effective date of the final-form rulemaking
IRRC asked that the Department determine how many PCHs in existence at the time of the proposed rulemaking that the Department thinks would qualify for the 175 square foot minimum square footage requirement.
Response
As previously stated, in October 2008, the Department conducted a survey of the 1,437 PCHs licensed in this Commonwealth which revealed that approximately 220 PCHs had at least 90% of their rooms that would qualify under the 175 square footage requirement. Based on comments from industry stakeholders, the Department chose to decrease the square footage requirement to 160 square feet. Using the same survey results, the Department finds that approximately 243 PCHs had at least 90% of their rooms that would qualify based on the revised square footage requirements.
§ 2800.101. Resident living units—Evaluation of the feasibility of existing licensed PCHs being able to change their licensure to assisted living
IRRC commented that it is clear that many existing PCH licensees want to be licensed as ALRs. The Department acknowledged this interest by providing for different square footage for living units for existing facilities. The Department should explain how it researched and assessed existing licensed PCHs in setting the requirements in the ALR regulations. IRRC asked how many facilities in existence did the Department determine would qualify as ALRs and how many would not? Also, IRRC asked how these limits would sufficiently meet the needs of ALR residents.
Response
Act 56 requires that ALR regulations must meet or exceed the PCH regulations. In anticipation that many existing PCHs would be interested in either converting to ALRs or becoming dually licensed, the Department decided to use the PCH regulations as a framework in which to construct the ALR regulations. Doing that, however, meant balancing the ease with which PCHs could convert to ALRs against the significant differences between the two types of facilities. Much of the Department's research was done by examining the PCH regulations closely and determining which were transferable to ALRs and which were not. The Department then set into place an extensive stakeholder input process to work out differences and, when that was not possible, to use that process to make informed decisions.
Based on the October 2008 survey previously described and using the originally proposed square footage of 175 square feet for existing facilities, the Department estimated that there were approximately 220 PCHs that had at least 90% of their rooms that would meet the square footage requirements. Approximately 243 PCHs had 90% of their rooms that would qualify under a 160 square footage requirement.
In terms of how the number of potentially qualifying PCHs will meet the need in this Commonwealth for ALRs, the Department maintains that this is a good start. As new facilities come on line, this Commonwealth has the potential to grow a healthy home and community-based option for older residents and those persons with disabilities.
§ 2800.101. Resident living units—Kitchen capacity
IRRC questioned how the Department came up with the requirements for kitchen capacity for the living units and asked a series of questions about kitchen capacity. First, IRRC questioned why the Department required refrigerators, microwave ovens and bar-type sinks for newly constructed living units when Act 56 only specified that the living units must have ''kitchen capacity, which may mean electrical outlets to have small appliances such as a microwave and refrigerator.'' See section 1021(a)(2)(iv) of the code. IRRC further inquired why microwaves and refrigerators are required for new construction, but not for existing facilities, and also asked how much this requirement increases costs to a resident. If a resident does not wish to use these items, IRRC asked why should the resident pay for them?
IRRC also asked about a discrepancy in the regulations between existing facilities and new construction regarding the removal of appliances based on safety considerations that are included in the new construction requirements but not for existing facilities. As to other required items for a living unit, IRRC questioned the list of required items and asks if residents may opt out of having these items.
Response
The Department made several significant changes to the final-form rulemaking with respect to kitchen capacity. In recognition of consumer choice, for both new construction and existing facilities, an ALR will be required to offer the resident the option to have a cooking appliance or a small refrigerator, or both. If the resident wishes to have a cooking appliance or small refrigerator, or both, the ALR shall provide the appliances, unless the resident wishes to bring his own appliances. For both new construction and existing facilities, the final-form rulemaking provides for the removal of an appliance for resident safety or if the resident chooses to not have the appliance.
As to the costs for new construction, the Department submits that having a bar sink in the living unit is designed so that the resident can exercise maximum choice and have privacy and autonomy in living arrangement. As previously mentioned, the assisted living model of residential living emphasizes resident self-determination and choice. For an individual who chooses to cook his own meals, a small sink is necessary to allow the resident to wash dishes in a separate area. Otherwise, the resident would have to use the bathroom sink to wash dishes. At the same time, the Department is mindful that some residents may no longer wish to cook or have a cooking appliance in their living unit. The resulting language in the final-form rulemaking accomplishes an appropriate balance because it is directed at putting the consumer ''in the driver's seat'' as to the choice he makes about the accommodations in the living unit. As to existing facilities, the Department adopted the recommendation of industry stakeholders that many existing PCHs provide residents with access to a ''country kitchen,'' which is separate from the facility's kitchen area but near enough to resident bedrooms to allow residents to prepare meals or wash dishes. To minimize costs to existing facilities, the Department adopted this recommendation and finds that it is reasonable to minimize costs to existing facilities that may wish to pursue licensure as an ALR.
As to whether a resident may opt out of having some of the other items listed in § 2800.101(j) and (q), the Department is required by Act 56 to ''meet or exceed'' the requirements set forth in the PCH regulations. Section 2600.101 require certain furnishings that are intended to protect the dignity, well-being and privacy of residents.
§ 2800.102. Bathrooms
IRRC recommended deletion of the phrase ''applicable local, state and federal laws and guidelines.''
Response
The Department agrees and deleted this phrase. The requirement for compliance with applicable Federal, State and local laws, ordinances and regulations is already required under § 2800.18 (relating to applicable laws).
§ 2800.108. Firearms and weapons
IRRC questioned the threshold question of safety of firearms and weapons in an ALR. IRRC recommended allowing a facility to prohibit weapons and to require an ALR to disclose whether it allows firearms and weapons to prospective residents in its admissions procedures and documents. IRRC also recommended that the terms ''living area'' and ''common living area'' be reconciled. Finally, IRRC recommended use of consistent terminology to include ''firearms, weapons and ammunition'' throughout this section.
Response
The Office of Attorney General tolled the proposed rulemaking on the basis that the Department initially sought to ban firearms and weapons from ALRs as recommended by industry stakeholders, consumers and other interested parties who advocated a ban on weapons and firearms. As a result of the Attorney General's comments, the Department modified the proposed rulemaking to require that ALRs, instead, shall have a written policy regarding firearms. In the final-form rulemaking, the Department further clarified that an ALR have a written policy on firearms, weapons and ammunition and that an ALR is not required to permit these items. This policy will be included in the resident handbook so that the prospective resident is fully informed of the ALR's policy in this area.
The Department also made the technical changes recommended by IRRC regarding use of consistent terminology regarding ''common living areas'' and ''firearms, weapons and ammunition'' in the final-form rulemaking. The Department decided to continue to use the term ''common living area'' for conformity since the requirements for PCH use the same language. See § 2600.108 (relating to firearms and weapons).
§ 2800.131. Fire extinguishers
IRRC questioned why this section exceeded the PCH standard for fire extinguishers and reiterated concerns expressed by commentators as to costs and safety risks associated with having fire extinguishers in each living unit and in each kitchen.
Response
The Department amended this section and will require a fire extinguisher for each floor, including walkways and common living areas every 3,000 square feet. This change was recommended jointly to the Department by industry stakeholders, consumers and other interested parties and is a reasonable standard that will protect health and safety of the residents.
§ 2800.142. Assistance with medical care and supplemental health care services
IRRC questioned the use of the phrase ''such approval may not be unreasonably withheld.''
Response
The Department deleted this language from the final-form rulemaking.
§ 2800.162. Meals
IRRC questioned what is meant by ''appropriate cueing'' as it relates to encouraging residents to eat and drink. IRRC commented that the requirement is vague. IRRC also questioned how this would apply to individuals who are cooking and eating in their own living units. IRRC recommended deletion of this provision or relocating it to § 2800.227.
Response
The Department concurs with IRRC and other commentators that this issue is more appropriately dealt with based on the individual's support plan in § 2800.227(d) so that it is tailored to individuals who eat their meals either in a congregate setting or individually in their own rooms. As a result, the Department added the language ''as indicated in the resident's support plan'' in subsection (g) of this section to clarify this requirement.
§ 2800.171. Transportation
IRRC questioned whether, when a residence provides its own vehicle, all vehicles must be wheelchair accessible and provide for other assistive devices the resident may need.
Response
The Department revised this provision after further consultation with stakeholders. The Department clarified in the final-form rulemaking that if an ALR provides transportation, a minimum of one vehicle furnished by the ALR must be wheelchair accessible and provide room for other assistive equipment residents may need.
§ 2800.225. Additional assessments
IRRC questioned why the Department did not include language from § 2600.225(d) from the PCH regulations in the ALR regulations regarding determinations of the resident's need for a higher level of care and referral to an appropriate assessment agency.
Response
IRRC correctly points out that Act 56 may limit ALRs from accepting residents with certain conditions and health care needs. However, Act 56 also allows a facility to seek an exception from the Department to allow it to serve individuals with certain ''excludable conditions.'' See section 1057.3(e) and (g) of the code. Since the ALR regulation is distinguishable from the PCH regulations in this regard, the Department did not adopt the language in § 2600.225(d). An individual who may need skilled long-term care services may be served in an ALR according to the individual's preferences and according to whether the ALR wishes to provide this care by seeking an exception from the Department to provide this care. Requiring a higher level of care, therefore, is not a parallel concept for ALRs and PCHs since and ALRs allow for aging in place may serve individuals whose acuity needs change over time, and may, if an exception is granted for an excludable condition, actually serve an individual who would otherwise have to be transferred to a nursing facility. A PCH, however, may not serve an individual who ''requires the services in or of a long-term care facility.'' See section 1001 of the code.
§ 2800.224. Initial assessment and preliminary support plan
§ 2800.227. Development of the final support plan
IRRC reflected the comments of many commentators who objected to the requirement that a licensed RN had to review and approve a support plan prepared by an LPN.
Response
The Department declined to make this change. In both nursing facilities and in home and community-based long-term living programs, RNs must review and approve support plans. Since we expect that ALRs will have residents with higher acuity levels than those in PCHs, the Department determined that use of RN expertise was needed.
§ 2800.228. Transfer and discharge
IRRC questioned how this section protects the rights of residents to be treated fairly and properly before a transfer or discharge occurs. IRRC also questioned the reliance on providing notice to an outside agency, in this case, an ombudsman. IRRC commented that it is not clear how the Department would be aware of whether the processes regarding notification of the ombudsman are being carried out in a timely manner. Also, as to the standards for admission or discharge, IRRC pointed out that the Department is required by regulation to establish the standards required for certification that a consumer may not be admitted or retained at an ALR. Finally, IRRC also asked how the Department can guarantee a timely and fair treatment of a consumer appeal.
Response
To protect an resident, the grounds for transfer or discharge from an ALR are limited to those specified in subsection (h). In addition, to ensure a resident is being treated fairly and properly, the Department has specifically detailed the transfer and discharge process, including a 30-day advance written notice to the resident, the resident's family or designated person. This notice must include the specific reason for transfer or discharge, the effective date of the transfer or discharge, the location that the resident will be transferred or discharged to, an explanation of the measures a resident or the resident's designated person can take if they disagree with the decision to transfer or discharge and the name, mailing address, telephone number of the State and local long-term care ombudsman. In addition, the Department added a provision that states that the notice must also provide the resident's transfer or discharge rights, as applicable. To ensure an ALR is abiding by these notice provisions, the Department requires the resident record to include the notice and also the reason for termination of services or transfer of a resident. See § 2800.252 (relating to content of resident records).
The Department agreed with IRRC's comment regarding the certification language regarding transfer or discharge. Therefore, the Department added this language in subsection (i).
The Department, however, is not in the position or granted the authority for establishing ''expedited'' resident appeals regarding transfer or discharge. The Department does not have jurisdiction under Article X of the code or Act 56 to adjudicate resident appeals. A resident's transfer or discharge is a contract matter between the resident and the ALR and, as such, the Court of Common Pleas has jurisdiction unless other provisions are made in the contract for dispute resolution, such as mediation or arbitration.
§ 2800.229. Excludable conditions; exceptions
IRRC asked why the certification language is limited to this section regarding excludable conditions. It stated that it is not clear that certification by a provider for a resident's admission or retention is limited to situations involving the excludable conditions listed in section 1057.3(e) of the code.
Response
The Department agrees with IRRC's comment that the certification requirement is not merely limited to excludable conditions and added language to § 2800.22 and § 2800.228 (relating to transfer and discharge) in accordance with Act 56.
Miscellaneous clarity issues
IRRC commented that various sections of the regulations provide for forms ''as specified by the Department.'' IRRC further suggested that the Department take advantage of the stakeholder process in the development and content of these forms. IRRC also inquired how the Department will make these forms available.
Response
After publication of this final-form rulemaking, the Department intends to work closely with stakeholders during the 6-month interval between the publication date and the effective date of the final-form rulemaking in the development and content of these forms.
Additional changes to the final-form rulemaking
In addition to the comments submitted by IRRC and other commentators regarding the proposed rulemaking, as stated previously, the Department received 79 more comments from consumers, industry stakeholders and other interested parties after the issuance of the draft final-form regulation on June 24, 2009. A number of those changes have been previously addressed. Additional changes were made to the final-form rulemaking based on these comments, including those described as follows.
Resident rights
Consumers commented that there are resident rights scattered throughout the regulations and requested that the residents rights be placed in one location.
Response
In response to this concern the Department has prepared an Appendix containing the resident rights in the regulations. See Appendix A.
§ 2800.54. Qualifications of direct care staff persons
Numerous commentators interpreted this section to mean that every direct care staff person must be able to communicate in all languages to meet the provision that states that they must ''be able to communicate in a mode or manner understood by the resident.''
Response
The Department's intent was never to require that staff persons must be able to communicate in all languages. The Department clarified in the final-form rulemaking that strategies that promote interactive communication be developed as part of a resident's support plan.
§ 2800.60. Additional staffing based on the needs of the residents
Numerous industry stakeholders questioned if they would be required to have a licensed nurse on call even if they already have one on staff.
Response
To address this concern raised by industry stakeholders, the Department changed this section to allow that a licensed nurse must be on call or in the building.
§ 2800.171. Transportation
Many industry stakeholders contended that transportation to medical appointments and social events should not be required unless they are scheduled by the residence. Many also objected that this section did not specify a limit on the distance they would be required to travel.
Response
The Department revised subsection (a) to require that residences shall provide or arrange transportation on ''a regular weekly basis that permits residents to schedule medical and social appointments within a reasonable local area.'' This will allow residences the ability to manage their work schedules while also meeting the needs of residents to get to medical and social appointments. While the Department considered a specific radius of travel, given the differences in access to public transportation and geographical differences in this Commonwealth, specificity was not appropriate. The Department holds that a rule of reasonableness should apply.
§ 2800.53. Qualifications and responsibilities of administrators
§ 2800.64. Administrator training and orientation
Many comments were received from industry stakeholders advocating for the grandfathering of PCH administrators and nursing home administrators as ALR administrators. Many comments were received from others advocating that no grandfathering be allowed.
Response
The Department took both of these views into consideration. While recognizing that both PCH administrators and nursing home administrators are in a unique position based on their experience to transition to ALR administrators, they should also be qualified to address the broad range of needs of the populations served by ALRs. Subsequently, §§ 2800.53 and 2800.64 (relating to qualifications and responsibilities of administrators; and administrator training and orientation) have been amended, not to provide for grandfathering, but to allow each of these professionals to meet different sets of qualifications and training requirements while requiring passage of a competency test.
Regulatory Review Act
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on May 3, 2010, the Department submitted a copy of this final-form rulemaking to IRRC and to the House Committee on Aging and Older Adult Services and the Senate Committee on Public Health and Welfare (Committees) for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on June 2, 2010, the final-form rulemaking was deemed approved by the Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on June 3, 2010, and approved the final-form rulemaking.
Findings
The Department finds that:
(1) Public notice of intention to adopt the administrative regulation by this order has been given under sections 201 and 202 of the Commonwealth Documents Law (45 P. S. §§ 1201 and 1202) and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) Adoption of this final-form rulemaking in the manner provided by this order is necessary and appropriate for the administration and enforcement of the code.
Order
The Department, acting under sections 211, 213 and Article X of the code, orders that: (a) The regulations of the Department, 55 Pa. Code Chapter 2800, are amended by adding §§ 2800.1—2800.5, 2800.11—2800.30, 2800.41—2800.44, 2800.51—2800.69, 2800.81—2800.109, 2800.121—2800.133, 2800.141—2800.144, 2800.161—2800.164, 2800.171, 2800.181—2800.191, 2800.201—2800.203, 2800.220—2800.229, 2800.231—2800.239, 2800.251—2800.254 and 2800.261—2800.270 to read as set forth in Annex A.
(b) The Secretary of the Department shall submit this order and Annex A to the Offices of General Counsel and Attorney General for approval as to legality and form as required by law.
(c) The Secretary of the Department shall certify and deposit this order and Annex A with the Legislative Reference Bureau as required by law.
(d) This order shall take effect January 18, 2011.
HARRIET DICHTER,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 40 Pa.B. 3471 (June 19, 2010).)
Fiscal Note: 14-514. (1) General Fund; (2) Implementing Year 2009-10 is $0; (3) 1st Succeeding Year 2010-11 is $437,000; 2nd Succeeding Year 2011-12 is $0; 3rd Succeeding Year 2012-13 is $0; 4th Succeeding Year 2013-14 is $0; 5th Succeeding Year 2014-15 is $0; (4) 2009-10 Program—$38,115,000; 2008-09 Program—$34,843,000; 2007-08 Program—$30,968,000; (7) County Administration Statewide; (8) recommends adoption. Funds have been included in the budget to cover the increase in 2010-11. We expect projected fee revenue will cover any costs in the remaining years.
Annex A
TITLE 55. PUBLIC WELFARE
PART IV. ADULT SERVICES MANUAL
Subpart E. RESIDENTIAL AGENCIES/FACILITIES SERVICES
CHAPTER 2800. ASSISTED LIVING RESIDENCES GENERAL PROVISIONS
2800.1. Purpose. 2800.2. Scope. 2800.3. Inspections and licenses. 2800.4. Definitions. 2800.5. Access. GENERAL REQUIREMENTS
2800.11. Procedural requirements for licensure or approval of assisted living residences; special care designation and dual licensure. 2800.12. Appeals. 2800.13. Maximum capacity. 2800.14. Fire safety approval. 2800.15. Abuse reporting covered by law. 2800.16. Reportable incidents and conditions. 2800.17. Confidentiality of records. 2800.18. Applicable laws. 2800.19. Waivers. 2800.20. Financial management. 2800.21. Offsite services. 2800.22. Application and admission. 2800.23. Activities. 2800.24. Personal hygiene. 2800.25. Resident-residence contract. 2800.26. Quality management. 2800.27. SSI recipients. 2800.28. Refunds. 2800.29. Hospice care and services. 2800.30. Informed consent process. RESIDENT RIGHTS
2800.41. Notification of rights and complaint procedures. 2800.42. Specific rights. 2800.43. Prohibition against deprivation of rights. 2800.44. Complaint procedures. STAFFING
2800.51. Criminal history checks. 2800.52. Staff hiring, retention and utilization. 2800.53. Qualifications and responsibilities of administrators. 2800.54. Qualifications for direct care staff persons. 2800.55. Portability of staff training. 2800.56. Administrator staffing. 2800.57. Direct care staffing. 2800.58. Awake staff persons. 2800.59. Multiple buildings. 2800.60. Additional staffing based on the needs of the residents. 2800.61. Substitute personnel. 2800.62. List of staff persons. 2800.63. First aid, CPR and obstructed airway training. 2800.64. Administrator training and orientation. 2800.65. Staff orientation and direct care staff person training and orientation. 2800.66. Staff training plan. 2800.67. Training institution registration. 2800.68. Instructor approval. 2800.69. Additional dementia-specific training. PHYSICAL SITE
2800.81. Physical accommodations and equipment. 2800.82. Poisons. 2800.83. Temperature. 2800.84. Heat sources. 2800.85. Sanitation. 2800.86. Ventilation. 2800.87. Lighting. 2800.88. Surfaces. 2800.89. Water. 2800.90. Communication system. 2800.91. Emergency telephone numbers. 2800.92. Windows and screens. 2800.93. Handrails and railings. 2800.94. Landings and stairs. 2800.95. Furniture and equipment. 2800.96. First aid kit. 2800.97. Elevators and stair glides. 2800.98. Indoor activity space. 2800.99. Recreation space. 2800.100. Exterior conditions. 2800.101. Resident living units. 2800.102. Bathrooms. 2800.103. Food service. 2800.104. Dining room. 2800.105. Laundry. 2800.106. Swimming areas. 2800.107. Emergency preparedness. 2800.108. Firearms and weapons. 2800.109. Pets. FIRE SAFETY
2800.121. Unobstructed egress. 2800.122. Exits. 2800.123. Emergency evacuation. 2800.124. Notification of local fire officials. 2800.125. Flammable and combustible materials. 2800.126. Furnaces. 2800.127. Space heaters. 2800.128. Supplemental heating sources. 2800.129. Fireplaces. 2800.130. Smoke detectors and fire alarms. 2800.131. Fire extinguishers. 2800.132. Fire drills. 2800.133. Exit signs. RESIDENT HEALTH
2800.141. Resident medical evaluation and health care. 2800.142. Assistance with medical care and supplemental health care services. 2800.143. Emergency medical plan. 2800.144. Use of tobacco. NUTRITION
2800.161. Nutritional adequacy. 2800.162. Meals. 2800.163. Personal hygiene for food service workers. 2800.164. Withholding or forcing of food prohibited. TRANSPORTATION
2800.171. Transportation. MEDICATIONS
2800.181. Self-administration. 2800.182. Medication administration. 2800.183. Storage and disposal of medications and medical supplies. 2800.184. Labeling of medications. 2800.185. Accountability of medication and controlled substances. 2800.186. Prescription medications. 2800.187. Medication records. 2800.188. Medication errors. 2800.189. Adverse reaction. 2800.190. Medication administration training. 2800.191. Resident education. SAFE MANAGEMENT TECHNIQUES
2800.201. Safe management techniques. 2800.202. Prohibitions. 2800.203. Bedside rails. SERVICES
2800.220. Service provision. 2800.221. Activities program. 2800.222. Community social services. 2800.223. Description of services. 2800.224. Initial assessment and preliminary support plan. 2800.225. Additional assessments. 2800.226. Mobility criteria. 2800.227. Development of the final support plan. 2800.228. Transfer and discharge. 2800.229. Excludable conditions; exceptions. SPECIAL CARE UNITS
2800.231. Admission. 2800.232. Environmental protection. 2800.233. Doors, locks and alarms. 2800.234. Resident care. 2800.235. Discharge. 2800.236. Training. 2800.237. Program. 2800.238. Staffing. 2800.239. Application to Department. RESIDENT RECORDS
2800.251. Resident records. 2800.252. Content of resident records. 2800.253. Record retention and disposal. 2800.254. Record access and security. ENFORCEMENT
2800.261. Classification of violations. 2800.262. Penalties and corrective action. 2800.263. Appeals of penalty. 2800.264. Use of fines. 2800.265. Review of classifications. 2800.266. Revocation or nonrenewal of licenses. 2800.267. Relocation of residents. 2800.268. Notice of violations. 2800.269. Ban on admissions. 2800.270. Correction of violations.
GENERAL PROVISIONS § 2800.1. Purpose.
(a) The purpose of this chapter is to protect the health, safety and well-being of assisted living residents.
(b) Assisted living residences are a significant long-term care alternative to allow individuals to age in place. Residents who live in assisted living residences that meet the requirements in this chapter will receive the assistance they need to age in place and develop and maintain maximum independence, exercise decision-making and personal choice.
§ 2800.2. Scope.
(a) This chapter applies to assisted living residences as defined in this chapter, and contains the minimum requirements that shall be met to obtain a license to operate an assisted living residence.
(b) This chapter does not apply to personal care homes, domiciliary care homes, independent living communities or commercial boarding homes.
§ 2800.3. Inspections and licenses.
(a) The Department will annually conduct at least one onsite unannounced inspection of each assisted living residence.
(b) Additional announced or unannounced inspections may be conducted at the Department's discretion.
(c) A license will be issued to the legal entity by the Department if, after an investigation by an authorized agent of the Department, the requirements for a license are met.
(d) The assisted living residence shall post the current license, a copy of the current license inspection summary issued by the Department and a copy of this chapter in a conspicuous and public place in the assisted living residence.
§ 2800.4. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
ADL—Activities of daily living—The term includes eating, drinking, ambulating, transferring in and out of a bed or chair, toileting, bladder and bowel management, personal hygiene, securing health care, managing health care, self-administering medication and proper turning and positioning in a bed or chair.
Abuse—The occurrence of one or more of the following acts:
(i) The infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain or mental anguish.
(ii) The willful deprivation by the assisted living residence or its staff persons of goods or services which are necessary to maintain physical or mental health.
(iii) Sexual harassment, rape or abuse, as defined in 23 Pa.C.S. Chapter 61 (relating to protection from abuse).
(iv) Exploitation by an act or a course of conduct, including misrepresentation or failure to obtain informed consent which results in monetary, personal or other benefit, gain or profit for the perpetrator, or monetary or personal loss to the resident.
(v) Neglect of the resident, which results in physical harm, pain or mental anguish.
(vi) Abandonment or desertion by the assisted living residence or its staff persons.
Adult—An individual who is 18 years of age or older.
Age in place or aging in place—Receiving care and services at a licensed assisted living residence to accommodate changing needs and preferences in order to remain in the assisted living residence.
Agent—An individual authorized by the Department to enter, visit, inspect or conduct an investigation of an assisted living residence.
Ancillary staff person—An individual who provides services for the residents other than direct assistance with activities of daily living. Ancillary staff may include staff who do not provide direct care but who conduct assessment, care planning or care management activities, and who meet the direct care staff qualifications and training requirements. Ancillary staff may also include RNs, LPNs, dieticians, or skilled professionals who meet the requirements of their professional licensure and the direct care staff requirements, if they also provide direct assistance with activities of daily living. Other ancillary staff may include activities planners, housekeepers, cooking staff or facilities staff.
Appropriate assessment agency—An organization serving adults who are older or adults with disabilities, such as a county mental health/mental retardation agency, a drug and alcohol agency, an area agency on aging or another human service agency or an individual in an occupation maintaining contact with adults who are older and adults with disabilities, such as medicine, nursing or rehabilitative therapies.
Area agency on aging—The local agency designated by the Department of Aging as defined in section 2202-A of The Administrative Code of 1929 (71 P. S. § 581-2).
Assessment—An instrument that includes screening of a resident or potential resident to determine whether the resident or potential resident requires the services of an assisted living residence.
Assisted living residence or residence—Any premises in which food, shelter, assisted living services, assistance or supervision and supplemental health care services are provided for a period exceeding 24-hours for four or more adults who are not relatives of the operator, who require assistance or supervision in matters such as dressing, bathing, diet, financial management, evacuation from the residence in the event of an emergency or medication prescribed for self-administration.
Assisted living residence administrator—An individual who is charged with the general administration of an assisted living residence, whether or not the individual has an ownership interest in the residence or his function and duties are shared with other individuals.
Assisted living services—Services as defined in § 2800.220(b) (relating to service provision).
Basic cognitive support services—These services include the following:
(i) Intermittent cueing.
(ii) Redirecting.
(iii) Environmental cues.
(iv) Measures to address wandering.
(v) Dementia-specific activity programming.
(vi) Specialized communication techniques.
CAM—Complementary and alternative medications—Practices, substances and ideas used to prevent or treat illness or promote health and well-being outside the realm of modern conventional medicine. Alternative medicine is used alone or instead of conventional medicine. Complementary medicine is used along with or in addition to conventional medicine.
CPB—Cognitive, physical, behavioral.
CPR—Cardiopulmonary resuscitation.
Cognitive support services—
(i) Services provided to an individual who has memory impairments and other cognitive problems which significantly interfere with his ability to carry out ADLs without assistance and who requires that supervision, monitoring and programming be available 24 hours per day, 7 days per week, in order to reside safely in the setting of his choice.
(ii) The term includes assessment, health support services and a full range of dementia-capable activity programming and crisis management.
Commercial boarding home—A type of residential living facility providing only food and shelter, or other services normally provided by a hotel, for payment, for individuals who require no services beyond food, shelter and other services usually found in hotel or apartment rental.
Common living area—Includes any of the following:
(i) Dining room.
(ii) Indoor activity space.
(iii) Recreational space.
(iv) Swimming area, if located in the residence.
Complaint—A written or oral criticism, dispute or objection presented by or on behalf of a resident to the Department regarding the care, operations or management of an assisted living residence.
Day—Calendar day.
Dementia—A clinical syndrome characterized by a decline of long duration in mental function in an alert individual. Symptoms of dementia may include memory loss, personality change, chronic wandering and the loss or diminishing of other cognitive abilities, such as learning ability, judgment, comprehension, attention and orientation to time and place and to oneself.
Department—The Department of Public Welfare of the Commonwealth.
Designated person—An individual who may be chosen by the resident and documented in the resident's record, to be notified in case of an emergency, termination of service, assisted living residence closure or other situations as indicated by the resident or as required by this chapter. A designated person may be the resident's legal representative or an advocate.
Designee—A staff person authorized in writing to act in the administrator's absence.
Direct care staff person—A staff person who directly assists residents with activities of daily living, and instrumental activities of daily living and provides services or is otherwise responsible for the health, safety and well-being of the residents.
Discharge—Termination of an individual's residency in an assisted living residence.
Distinct part—A portion of a building that is visually separated such as a wing or floor, or sections or parts of floors.
Emergency medical plan—A plan that ensures immediate and direct access to medical care and treatment for serious injury or illness, or both.
Financial management—
(i) An assisted living service requested or required by the resident in accordance with his support plan, which includes taking responsibility for or assisting with paying bills, budgeting, maintaining accurate records of income and disbursements, safekeeping funds and making funds available to the resident upon request.
(ii) The term does not include solely storing funds in a safe place as a convenience for a resident.
Fire safety expert—A member of a local fire department, fire protection engineer, Commonwealth-certified fire protection instructor, college instructor in fire science, county or Commonwealth fire school, volunteer trained and certified by a county or Commonwealth fire school, an insurance company loss control representative, Department of Labor and Industry building code inspector or construction code official.
Health care or human services field—Includes the following:
(i) Child welfare services.
(ii) Adult services.
(iii) Older adult services.
(iv) Mental health/mental retardation services.
(v) Drug and alcohol services.
(vi) Services for individuals with disabilities.
(vii) Medicine.
(viii) Nursing.
(ix) Rehabilitative services.
(x) Any other human service or occupation that maintains contact with adults who are older or adults and children with disabilities.
Housekeeping—The cleaning of the living unit and common living areas. Cleaning of the living unit includes at least weekly dusting, sweeping, vacuuming, mopping, emptying trash, and cleaning of bathroom, counters, refrigerator and microwave oven, if these appliances are in the resident's living area. Housekeeping for common living areas means keeping them in clean sanitary condition.
IADL—Instrumental activities of daily living—The term includes the following activities when done on behalf of a resident:
(i) Doing laundry.
(ii) Shopping.
(iii) Securing and using transportation.
(iv) Financial management.
(v) Using a telephone.
(vi) Making and keeping appointments.
(vii) Caring for personal possessions.
(viii) Writing correspondence.
(ix) Engaging in social and leisure activities.
(x) Using a prosthetic device.
(xi) Obtaining and keeping clean, seasonal clothing.
INRBI—Intense neurobehavioral rehabilitation after brain injury.
Informed consent agreement—A formal, mutually agreed upon, written understanding which:
(i) Results after thorough discussion among the assisted living residence staff, the resident and any individuals the resident wants to be involved.
(ii) Identifies how to balance the assisted living residence's responsibilities to the individuals it serves with a resident's choices and capabilities with the possibility that those choices will place the resident or other residents at risk of harm.
LPN—Licensed practical nurse.
Legal entity—A person, society, corporation, governing authority or partnership legally responsible for the administration and operation of an assisted living residence.
Legal representative—An individual who holds a power of attorney, a court-appointed guardian or other person legally authorized to act for the resident.
License—A certificate of compliance issued by the Department permitting the operation of an assisted living residence, at a given location, for a specific period of time, for a specified capacity, according to Chapter 20 (relating to licensure or approval of facilities and agencies).
Licensee—A person legally responsible for the operations of an assisted living residence licensed in accordance with this chapter.
Long-term care ombudsman—A representative of the Office of the State Long-Term Care Ombudsman in the Department of Aging who investigates and seeks to resolve complaints made by or on behalf of individuals who are 60 years of age or older who are consumers of long-term care services. These complaints may relate to action, inaction or decisions of providers of long-term care services, of public agencies, of social service agencies or their representatives, which may adversely affect the health, safety, well-being or rights of these consumers.
Mobile resident—
(i) A resident who is physically and mentally capable of vacating the assisted living residence on the resident's own power or with limited physical or oral assistance in the case of an emergency, including the capability to ascend or descend stairs if present on the exit path.
(A) Physical assistance means assistance in getting to one's feet or into a wheelchair, walker or prosthetic device.
(B) Oral assistance means giving instructions to assist the resident in vacating the assisted living residence.
(ii) The term includes an individual who is able to effectively operate an ambulation device required for moving from one place to another, and able to understand and carry out instructions for vacating the assisted living residence.
Neglect—The failure of an assisted living residence or its staff persons to provide goods or services essential to avoid a clear and serious threat to the physical or mental health of a resident. The failure or omission to provide the care, supervision and services that the assisted living residence has voluntarily, or by contract, agreed to provide and that are necessary to maintain the resident's health, safety and well-being, including assisted living services, food, clothing, medicine, shelter, supervision and medical services. Neglect may be repeated conduct or a single incident.
OTC—Over-the-counter or nonprescription.
Premises—The grounds and buildings on the same grounds, used for providing services required by residents.
Protective services unit—The local area agency on aging unit designated by the Department of Aging to investigate allegations of abuse of adults who are 60 years of age or older and assess the need for protective interventions.
RN—Registered nurse.
Referral agent—An agency or individual who arranges for or assists, or both, with placement of a resident into an assisted living residence.
Relative—A spouse, parent, child, stepparent, stepchild, grandparent, grandchild, brother, sister, half-brother, half-sister, aunt, uncle, niece or nephew.
Resident—An adult, unrelated to the legal entity, who resides in an assisted living residence, and who may require assisted living services or supplemental health care services, or both.
Resident with mobility needs—An adult who is unable to move from one location to another, has difficulty in understanding and carrying out instructions without the continued full assistance of other individuals or is incapable of independently operating an ambulation device, such as a wheelchair, prosthesis, walker or cane to exit a building.
Restraint—A manual, chemical or mechanical device used to limit or restrict the movement or normal function of an individual or a portion of the individual's body.
SSI—Supplemental Security Income.
Secretary—The Secretary of the Department.
Special care designation—A licensed assisted living residence or a distinct part of the residence which is specifically designated by the Department as capable of providing cognitive support services to residents with severe cognitive impairments, including dementia or Alzheimer's disease, in the least restrictive manner to ensure the safety of the resident and others in the residence while maintaining the resident's ability to age in place.
Specialized cognitive support services—These services include the following:
(i) Nonpharmacological interventions.
(ii) Dining with dignity.
(iii) Routines and roles.
(iv) Close of day programming.
(v) Pain management and person-centered care planning.
(vi) Implementation and management.
Staff person—An individual who works for the assisted living residence for compensation either on payroll or under contract.
Supplemental health care services—The provision by an assisted living residence of any type of health care service, either directly or through contractors, subcontractors, agents or designated providers, except for any service that is required by law to be provided by a health care facility under the Health Care Facilities Act (35 P. S. §§ 448.101—448.901).
Support plan—A written document that describes for each resident the resident's care, service or treatment needs based on the assessment of the resident, and when the care, service or treatment will be provided, and by whom.
Third-party provider—Any contractor, subcontractor, agents or designated providers under contract with the resident or residence to provide services to any resident.
Transfer—Movement of a resident within the assisted living residence or to a temporary placement outside the assisted living residence.
Volunteer—
(i) An individual who, of his own free will, and without monetary compensation, provides direct care services for residents in the assisted living residence.
(ii) The term does not include visitors or individuals who provide nondirect services or entertainment on an occasional basis.
§ 2800.5. Access.
(a) The administrator, administrator designee or staff person designated under § 2800.56(c) (relating to administrator staffing) shall provide, upon request, immediate access to the residence, the residents and records to:
(1) Agents of the Department.
(2) Representatives of the area agency on aging.
(3) Representatives of the Long-Term Care Ombudsman Program.
(4) Representatives of the protection and advocacy system for individuals with disabilities designated under the Protection and Advocacy for Individual Rights Program of the Vocational Rehabilitation and Rehabilitation Services Act (29 U.S.C.A. § 794e), the Protection and Advocacy for Individuals with Mental Illness Act (42 U.S.C.A. §§ 10801—10851) and the Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C.A. §§ 15041—15043).
(5) The resident's designated person, if so requested by the resident. The access to records under this paragraph is limited to the records of the resident.
(b) The administrator, administrator designee or staff person designated under § 2800.56(c) shall permit community service organizations and representatives of legal services programs to have access to the residence during visitation hours or by appointment for the purpose of assisting or informing the residents of the availability of services and assistance. A resident or a resident's designated person if so authorized may decline the services of the community service organization or the legal service program.
GENERAL REQUIREMENTS § 2800.11. Procedural requirements for licensure or approval of assisted living residences; special care designation and dual licensure.
(a) Except for § 20.32 (relating to announced inspections), the requirements in Chapter 20 (relating to licensure or approval of facilities and agencies) apply to assisted living residences.
(b) Before a residence is initially licensed and permitted to open, operate or admit residents, it will be inspected by the Department and found to be in compliance with applicable laws and regulations including this chapter. The Department will reinspect newly licensed residences within 3 months of the date of initial licensure.
(c) After the Department determines that a residence meets the requirements for a license, the Department's issuance or renewal of a license to a residence is contingent upon receipt by the Department of the following fees based on the number of beds in the residence, as follows:
(1) A $300 license application or renewal fee.
(2) A $75 per bed fee that may be adjusted by the Department annually at a rate not to exceed the Consumer Price Index. The Department will publish a notice in the Pennsylvania Bulletin when the per bed fee is increased.
(d) A person, organization or program may not use the term ''assisted living'' in any name or written material, except as a licensee in accordance with this chapter. Corporate entities which own subsidiaries that are licensed as assisted living residences may not use the term ''assisted living'' in any written material to market programs that are not licensed in accordance with this chapter.
(e) Multiple buildings located on the same premises may apply for a single assisted living residence license.
(f) A licensed assisted living residence may submit an application and a $150 application fee to the Department requesting special care designation. If the Department determines that the residence meets the requirements for special care designation, the residence will be issued a license indicating special care designation.
(g) A licensed personal care home may submit an application to the Department requesting dual licensure if the licensed personal care home and the assisted living residence are collocated in the same building and are each located in a distinct part of the building. If the Department determines that the licensed facility meets all of the requirements of this chapter, the facility will be issued a dual license.
(1) A facility that is dually licensed may not segregate residents or transfer residents from one licensed facility to another based on payment source.
(2) A facility that is dually licensed may request approval from the Department to share the administrator for the two licensed facilities by requesting a waiver of the administrator hourly staffing requirements contained in § 2800.56 (relating to administrator staffing). The qualifications for a shared administrator must be as set forth in this chapter.
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