[40 Pa.B. 4073]
[Saturday, July 17, 2010]
[Continued from previous Web Page] § 2800.12. Appeals.
(a) Appeals related to the licensure or approval of the assisted living residence shall be made in accordance with 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure (GRAPP)).
(b) Appeals related to the licensure or approval of the assisted living residence shall be made by filing a petition within 30 days after service of notice of the action.
(c) Subsection (b) supersedes the appeal period of 1 Pa. Code § 35.20 (relating to appeals from actions of the staff).
§ 2800.13. Maximum capacity.
(a) The maximum capacity is the total number of residents who are permitted to reside in the residence at any time. A request to increase the capacity shall be submitted to the Department and other applicable authorities and approved prior to the admission of additional residents. The maximum capacity is limited by physical plant space and other applicable laws and regulations.
(b) The maximum capacity specified on the license may not be exceeded.
§ 2800.14. Fire safety approval.
(a) Prior to issuance of a license under this chapter, a written fire safety approval from the Department of Labor and Industry, the Department of Health or the appropriate local building authority under the Pennsylvania Construction Code Act (35 P. S. §§ 7210.101—7210.1103) is required.
(b) If the fire safety approval is withdrawn or restricted, the residence shall notify the Department orally immediately, and in writing, within 48 hours of the withdrawal or restriction.
(c) If a building is structurally renovated or altered after the initial fire safety approval is issued, the residence shall submit the new fire safety approval, or written certification that a new fire safety approval is not required, from the appropriate fire safety authority. This documentation shall be submitted to the Department within 15 days of the completion of the renovation or alteration.
(d) The Department will request additional fire safety inspections by the appropriate agency if possible fire safety violations are observed during an inspection by the Department.
(e) Fire safety approval must be renewed at least every 3 years, or more frequently, if requested by the Department.
§ 2800.15. Abuse reporting covered by law.
(a) The residence shall immediately report suspected abuse of a resident served in the residence in accordance with the Older Adult Protective Services Act (35 P. S. §§ 10225.701—10225.707) and 6 Pa. Code §§ 15.21—15.27 (relating to reporting suspected abuse, neglect, abandonment or exploitation) and comply with the requirements regarding restrictions on staff persons.
(b) If there is an allegation of abuse of a resident involving a residence's staff person, the residence shall immediately develop and implement a plan of supervision or suspend the staff person involved in the alleged incident.
(c) The residence shall immediately submit to the Department's assisted living residence office a plan of supervision or notice of suspension of the affected staff person.
(d) The residence shall immediately notify the resident and the resident's designated person of a report of suspected abuse or neglect involving the resident.
§ 2800.16. Reportable incidents and conditions.
(a) A reportable incident or condition includes the following:
(1) The death of a resident.
(2) A physical act by a resident to commit suicide.
(3) An injury, illness or trauma requiring treatment at a hospital or medical facility. This does not include minor injuries such as sprains or minor cuts.
(4) A violation of a resident's rights in §§ 2800.41—2800.44 (relating to resident rights).
(5) An unexplained absence of a resident for 24 hours or more, or when the support plan so provides, a period of less than 24 hours, or an absence of a resident from a special care unit.
(6) Misuse of a resident's funds by the residence's staff persons or legal entity.
(7) An outbreak of a serious communicable disease as defined in 28 Pa. Code § 27.2 (relating to specific identified reportable diseases, infections and conditions).
(8) Food poisoning of residents.
(9) A physical or sexual assault by or against a resident.
(10) Fire or structural damage to the residence.
(11) An incident requiring the services of an emergency management agency, fire department or law enforcement agency, except for false alarms.
(12) A complaint of resident abuse, suspected resident abuse or referral of a complaint of resident abuse to a local authority.
(13) A prescription medication error as defined in § 2800.188 (relating to medication errors).
(14) An emergency in which the procedures under § 2800.107 (relating to emergency preparedness) are implemented.
(15) An unscheduled closure of the residence or the relocation of the residents.
(16) Bankruptcy filed by the legal entity.
(17) A criminal conviction against the legal entity, administrator or staff that is subsequent to the reporting on the criminal history checks under § 2800.51 (relating to criminal history checks).
(18) A termination notice from a utility.
(19) A violation of the health and safety laws under § 2800.18 (relating to applicable laws).
(20) An absence of staff so that residents receive inadequate care as defined by the respective resident's support plan.
(b) The residence shall develop and implement written policies and procedures on the prevention, reporting, notification, investigation and management of reportable incidents and conditions.
(c) The residence shall report the incident or condition to the Department's assisted living residence office or the assisted living residence complaint hotline within 24 hours in a manner designated by the Department. The residence shall immediately report the incident or condition to the resident's family and the resident's designated person. Abuse reporting must also follow the guidelines in § 2800.15 (relating to abuse reporting covered by law).
(d) The residence shall submit a final report, on a form prescribed by the Department, to the Department's assisted living residence office immediately following the conclusion of the investigation.
(e) If the residence's final report validates the occurrence of the alleged incident or condition, the affected resident and other residents who could potentially be harmed or his designated person shall also be informed immediately following the conclusion of the investigation.
(f) The residence shall keep a copy of the report of the reportable incident or condition.
§ 2800.17. Confidentiality of records.
Resident records shall be confidential, and, except in emergencies, may not be accessible to anyone other than the resident, the resident's designated person if any, staff persons for the purpose of providing services to the resident, agents of the Department and the long-term care ombudsman without the written consent of the resident, an individual holding the resident's power of attorney for health care or health care proxy or a resident's designated person, or if a court orders disclosure.
§ 2800.18. Applicable laws.
A residence shall comply with applicable Federal, State and local laws, ordinances and regulations.
§ 2800.19. Waivers.
(a) A residence may submit a written request for a waiver of a specific requirement contained in this chapter. The waiver request must be on a form prescribed by the Department. The Secretary, or the Secretary's appointee, may grant a waiver of a specific requirement of this chapter if the following conditions are met:
(1) There is no jeopardy to the residents.
(2) There is an alternative for providing an equivalent level of health, safety and well-being protection of the residents.
(3) Residents will benefit from the waiver of the requirement.
(b) Following receipt of a waiver request, the Department will post the waiver request on the Department's website with a 30-day public comment period prior to final review and decision on the requested waiver.
(c) The scope, definitions, applicability or residents' rights, assisted living service delivery requirements, special care designation requirements, staff training requirements, disclosure requirements, complaint rights or procedures, notice requirements to residents or the resident's family, contract requirements, reporting requirements, fire safety requirements, assessment, support plan or service delivery requirements under this chapter may not be waived.
(d) At least 30 days prior to the submission of the completed written waiver request to the Department, the residence shall provide a copy of the completed written waiver request to the affected resident and designated person to provide the opportunity to submit comments to the Department. The residence shall provide the affected resident and designated person with the name, address and telephone number of the Department staff person to submit comments.
(e) The residence shall discuss the waiver request with the affected resident and designated person upon the request of the resident or designated person.
(f) The residence shall notify the affected resident and designated person of the approval or denial of the waiver. A copy of the waiver request and the Department's written decision shall be posted in a conspicuous and public place within the residence.
(g) The Department will review waivers annually to determine compliance with the conditions required by the waiver. The Department may revoke the waiver if the conditions required by the waiver are not met. When the Department revokes a standing waiver from a residence that residence may appeal the revocation consistent with § 2800.12 (relating to appeals).
§ 2800.20. Financial management.
(a) A resident may manage his personal finances unless the resident has a guardian of his estate.
(b) If the residence provides assistance with financial management or holds resident funds, the following requirements apply:
(1) The residence shall keep a record of financial transactions with the resident, including the dates, amounts of deposits, amounts of withdrawals and the current balance.
(2) Resident funds shall be disbursed during normal business hours within 24 hours of the resident's request.
(3) The residence shall obtain a written receipt from the resident for cash disbursements at the time of disbursement.
(4) Resident funds and property shall only be used for the resident's benefit.
(5) Commingling of resident funds and residence funds is prohibited.
(6) If a residence is holding more than $200 for a resident for more than 2 consecutive months, the administrator shall notify the resident and offer assistance in establishing an interest-bearing account in the resident's name at a local Federally-insured financial institution. This does not include security deposits.
(7) The legal entity, administrator and staff persons of the residence are prohibited from being assigned power of attorney or guardianship of a resident or a resident's estate.
(8) The residence shall give the resident and the resident's designated person, an itemized account of financial transactions made on the resident's behalf on a quarterly basis.
(9) A copy of the itemized account shall be kept in the resident's record.
(10) The residence shall provide the resident the opportunity to review his own financial record upon request during normal business hours.
§ 2800.21. Offsite services.
If services or activities are provided by the residence at a location other than the premises, the residence shall ensure that the residents' support plans are followed and that the health and safety needs of the residents are met.
§ 2800.22. Application and admission.
(a) Documentation. The following admission documents shall be completed for each resident:
(1) Medical evaluation completed within 60 days prior to admission on a form specified by the Department. The medical evaluation may be completed within 15 days after admission if one of the following conditions applies:
(i) The resident is being admitted directly to the residence from an acute care hospital.
(ii) The resident is being admitted to escape from an abusive situation.
(iii) The resident has no alternative living arrangement.
(2) Assisted living resident initial assessment completed within 30 days prior to admission on a form specified by the Department. The initial assessment may be completed within 15 days after admission subject to § 2800.224 (relating to initial assessment and preliminary support plan).
(3) Preliminary support plan developed within 30 days prior to admission. The preliminary support plan may be completed within 15 days after admission if one of the following conditions applies:
(i) The resident is being admitted directly to the residence from an acute care hospital.
(ii) The resident is being admitted to escape from an abusive situation.
(iii) The resident has no alternative living arrangement.
(4) Final support plan is developed and implemented within 30 days after admission.
(5) Resident-residence contract is completed prior to admission or within 24 hours after admission.
(6) Medical evaluations, resident assessments and support plans may be subsequently updated as needed, but no less frequently than required in §§ 2800.225 and 2800.227 (relating to additional assessments; and development of the final support plan).
(b) Certification.
(1) A certification shall be made, prior to admission, that the needs of the potential resident can be met by the services provided by the residence.
(2) The certification shall be made by one of the following persons:
(i) The administrator acting in consultation with the supplemental health care providers.
(ii) The individual's physician or certified registered nurse practitioner.
(iii) The medical director of the residence.
(3) A potential resident whose needs cannot be met by the residence shall be provided with a written decision denying his admission and provide a basis for the denial. The decision shall be confidential and may only be released with the consent of the potential resident or his designated person. The potential resident shall then be referred to a local appropriate assessment agency.
(c) Supplemental health care. A potential resident who requires assisted living services but does not currently require assistance in obtaining supplemental health care services may be admitted to the residence, provided the resident is only provided supplemental health care services required or requested by the resident. When supplemental health care services are required, the residence shall develop a preliminary support plan as required in § 2800.224. This subsection applies to residents under any of the following circumstances:
(1) A resident who currently does not require assistance in obtaining supplemental health care services, but who may require supplemental health care services in the future.
(2) A resident who wishes to obtain assistance in obtaining supplemental health care services.
(3) A resident who resides in a residence in which supplemental health care services are available.
(d) Adults requiring services of a long-term care nursing facility. Adults requiring the services of a licensed long-term care nursing facility, including those with mobility needs, may reside in a residence, provided that appropriate supplemental health care services are provided those residents and the design, construction, staffing and operation of the residence allows for their safe emergency evacuation.
(e) Written disclosure. Upon application for residency and prior to admission to the residence, the licensee shall provide each potential resident or potential resident's designated person with written disclosures that include:
(1) A list of the nonwaivable resident rights.
(2) A copy of the contract the resident will be asked to sign.
(3) A copy of residence rules and resident handbook. The resident handbook shall be approved by the Department.
(4) Specific information about the following:
(i) The services and the core packages that are offered by the residence.
(ii) The cost of those services and of the core packages to the potential resident.
(iii) When a potential resident may require the services offered in a different core package.
(iv) The contact information for the Department.
(v) The licensing status of the most recent inspection reports and instructions for access to the Department's public website for information on the residence's most recent inspection reports.
(vi) The number of living units in the residence that comply with the Americans with Disabilities Act (42 U.S.C.A. §§ 12101—12213).
(vii) Disclosure of any waivers that have been approved for the residence and are still in effect.
§ 2800.23. Activities.
(a) A residence shall provide each resident with assistance with ADLs and appropriate cueing for ADLs as indicated in the resident's assessment and support plan.
(b) A residence shall provide each resident with assistance with IADLs and appropriate cueing for IADLs as indicated in the resident's assessment and support plan.
§ 2800.24. Personal hygiene.
A residence shall provide the resident with assistance with personal hygiene and appropriate cueing to encourage personal hygiene as indicated in the resident's assessment and support plan. Personal hygiene includes one or more of the following:
(1) Bathing.
(2) Oral hygiene.
(3) Hair grooming and shampooing.
(4) Dressing, undressing and care of clothes.
(5) Shaving.
(6) Nail care.
(7) Foot care.
(8) Skin care.
§ 2800.25. Resident-residence contract.
(a) Prior to admission, or within 24 hours after admission, a written resident-residence contract between the resident and the residence must be in place. The administrator or a designee shall complete this contract and review and explain its contents to the resident and the resident's designated person if any, prior to signature.
(b) The contract shall be signed by the administrator or a designee, the resident and the payer, if different from the resident, and cosigned by the resident's designated person if any, if the resident agrees. The contract must run month-to-month with automatic renewal unless terminated by the resident with 14 days notice or by the residence with 30 days notice in accordance with § 2800.228 (relating to transfer and discharge).
(c) At a minimum, the contract must specify the following:
(1) Each resident shall retain, at a minimum, the current personal needs allowance as the resident's own funds for personal expenditure. A contract to the contrary is not valid. A personal needs allowance is the amount that a resident shall be permitted to keep for his personal use.
(2) A fee schedule that lists the actual amount of charges for each of the assisted living services that are included in the resident's core service package in accordance with § 2800.220 (relating to service provision).
(3) An explanation of the annual assessment, medical evaluation and support plan requirements and procedures, which shall be followed if either the assessment or the medical evaluation indicates the need for another and more appropriate level of care.
(4) The party responsible for payment.
(5) The method for payment of charges for long distance telephone calls.
(6) The conditions under which refunds will be made, including the refund of admission fees and refunds upon a resident's death.
(7) The financial arrangements if assistance with financial management is to be provided.
(8) The residence's rules related to residence services, including whether the residence permits smoking.
(9) The conditions under which the resident-residence contract may be terminated including residence closure as specified in § 2800.228.
(10) A statement that the resident is entitled to at least 30 days advance notice, in writing, of the residence's request to change the contract.
(11) A list of assisted living services or supplemental health care services, or both, to be provided to the resident based on the outcome of the resident's support plan, a list of the actual rates that the resident will be periodically charged for food, shelter and services and how, when and by whom payment is to be made.
(12) Charges to the resident for holding a bed during hospitalization or other extended absence from the residence.
(13) Written information on the resident's rights and complaint procedures as specified in § 2800.41 (relating to notification of rights and complaint procedures).
(d) A residence may not seek or accept payments from an SSI resident in excess of one-half of any funds received by the resident under the Senior Citizens Rebate and Assistance Act (72 P. S. §§ 4751-1—4751-12). If the residence will be assisting the resident to manage a portion of the rent rebate, the requirements of § 2800.20 (relating to financial management) may apply. There may be no charge for filling out this paperwork.
(e) The resident-residence contract must include whether the residence collects a portion of a resident's rent rebate under subsection (d).
(f) If the residence collects a resident's rent rebate under subsection (e), the resident-residence contract must include the following:
(1) The dollar amount or percentage of the rent rebate to be collected.
(2) The residence's intended use of the revenue collected from the rent rebate.
(g) A statement signed by the resident, and the resident's designated person if applicable, at the time of admission, informing the resident that the information required in subsections (e) and (f) is to be kept in the resident's record.
(h) The resident, or a designated person, has the right to rescind the contract for up to 72 hours after the initial dated signature of the contract. The resident shall pay only for the services received. Rescission of the contract must be in writing addressed to the residence.
(i) The residence may not require or permit a resident to assign assets to the residence in return for a life care contract/guarantee. A life care contract/guarantee is an agreement between the legal entity and the resident that the legal entity will provide care to the resident for the duration of the resident's life. Continuing care communities that have obtained a Certificate of Authority from the Insurance Department and have provided a copy of the certificate to the Department are exempt from this requirement.
(j) A copy of the signed resident-residence contract shall be given to the resident and a copy shall be filed in the resident's record.
(k) The service needs addressed in the resident's support plan shall be available to the resident every day of the year.
(l) The resident-residence contract shall identify the assisted living services included in the core service package the individual is purchasing and the total price for those services. Supplemental health care services shall be packaged, contracted and priced separately from the resident-residence contract. Services provided by or contracted for by the residence other than supplemental health care services must be priced separately from the service package in the resident-residence contract.
§ 2800.26. Quality management.
(a) The residence shall establish and implement a quality management plan.
(b) The quality management plan must address the periodic review and evaluation of the following, to assure compliance with law and with the relevant standard of care:
(1) The reportable incident and condition reporting procedures.
(2) Complaint procedures.
(3) Staff person training.
(4) Licensing violations and plans of correction, if applicable.
(5) Resident or family councils, or both, if applicable.
(c) The quality management plan must include the development and implementation of measures to address the areas needing improvement that are identified during the periodic review and evaluation.
§ 2800.27. SSI recipients.
(a) If a residence agrees to admit a resident eligible for SSI benefits, the residence's charges for actual rent and other services may not exceed the SSI resident's actual current monthly income reduced by the current personal needs allowance.
(b) The administrator or staff persons may not include funds received as lump sum awards, gifts or inheritances, gains from the sale of property or retroactive government benefits when calculating payment of rent for an SSI recipient or for a resident eligible for SSI benefits.
(c) The administrator or staff persons may not seek or accept any payments from funds received as retroactive awards of SSI benefits, but may seek and accept the payments only to the extent that the retroactive awards cover periods of time during which the resident actually resided in the residence and for which full payment has not been received.
(d) The administrator shall provide each resident who is a recipient of SSI, at no charge beyond the amount determined in subsection (a), the following items or services as needed:
(1) Necessary personal hygiene items, such as a comb, toothbrush, toothpaste, soap and shampoo. Cosmetic items are not included.
(2) Laundry services for personal laundry, bed linens and towels, but not including dry cleaning or other specialized services.
(3) Assistance or supervision in ADL or IADL, or both.
(e) Third-party payments made on behalf of an SSI recipient and paid directly to the residence are permitted. These payments may not be used for food, clothing or shelter because to do so would reduce SSI payments. See 20 CFR 416.1100 and 416.1102 (relating to income and SSI eligibility; and what is income). These payments may be used to purchase items or services for the resident that are not food, clothing or shelter.
§ 2800.28. Refunds.
(a) If, after the residence gives notice of transfer or discharge in accordance with § 2800.228(b) (relating to transfer and discharge), and the resident moves out of the residence before the 30 days are over, the residence shall give the resident a refund equal to the previously paid charges for rent, assisted living services and supplemental health care services, if applicable, for the remainder of the 30-day time period. The refund shall be issued within 30-days of transfer or discharge. The resident's personal needs allowance shall be refunded within 2 business days of transfer or discharge.
(b) After a resident gives notice of the intent to leave in accordance with § 2800.25(b) (relating to resident-residence contract) and if the resident moves out of the residence before the expiration of the required 14 days, the resident owes the residence the charges for rent and assisted living services and supplemental health care services, or both, for the entire length of the 14-day time period for which payment has not been made.
(c) If no notice is required, as set forth in subsection (d), the resident shall be required to pay only for the nights spent in the residence.
(d) If the residence does not require a written notice prior to a resident's departure, the administrator shall refund the remainder of previously paid charges to the resident within 30 days of the date the resident moved from the residence.
(e) In the event of the death of a resident under 60 years of age, the administrator shall refund the remainder of previously paid charges to the resident's estate within 30 days from the date the living unit is cleared of the resident's personal property. In the event of the death of a resident 60 years of age and older, the residence shall provide a refund in accordance with the Elder Care Payment Restitution Act (35 P. S. §§ 10226.101—10226.107). The residence shall keep documentation of the refund in the resident's record.
(f) Within 30 days of either the termination of service by the residence or the resident's leaving the residence, the resident shall receive an itemized written account of the resident's funds, including notification of funds still owed the residence by the resident or a refund owed the resident by the residence. Refunds shall be made within 30 days of discharge.
(g) Upon discharge of the resident or transfer of the resident, the administrator shall return the resident's funds being managed or stored by the residence to the resident within 2 business days from the date the living unit is cleared of the resident's personal property.
§ 2800.29. Hospice care and services.
Hospice care and services that are licensed by the Department of Health as a hospice may be provided in an assisted living residence.
§ 2800.30. Informed consent process.
(a) Initiation of process.
(1) When a licensee determines that a competent resident's decision, behavior or action creates a dangerous situation and places the competent resident, other residents or staff members at risk of harm by the competent resident's wish to exercise independence in directing the manner in which the competent resident receives care, the licensee may initiate an informed consent process to address the identified risk and to reach a mutually agreed-upon plan of action with the competent resident or the resident's designated person. The initiation of an informed consent process does not guarantee that an informed consent agreement, which is agreeable to all parties, will be reached and executed.
(2) When a competent resident wishes to exercise independence in directing the manner in which the competent resident receives care, the competent resident may initiate an informed consent process to modify the support plan and attempt to reach a mutually agreed upon plan of action with the licensee.
(3) An incompetent resident shall be eligible for an informed consent agreement only if the resident's legal representative is included in the negotiation of the informed consent agreement and executes the agreement.
(b) Notification.
(1) When the licensee chooses to initiate an informed consent process, the provider shall do so by notifying the competent resident and, if applicable, the resident's designated person in writing and orally. The notification must include the contact information for the ombudsman. For incompetent residents, the ombudsman shall be automatically notified by the licensee. Notification shall be documented in the resident's file by the licensee.
(2) When a competent resident chooses to initiate an informed consent negotiation, the competent resident shall do so by notifying the licensee in writing and orally. Notification shall be documented in the competent resident's file by the licensee. When a legal representative for an incompetent resident chooses to initiate an informed consent negotiation, the legal representative shall do so by notifying the licensee in writing or orally. Notification shall be documented in the incompetent resident's file by the licensee.
(c) Resident's involvement. A resident who is not incompetent shall be entitled, but is not required, to involve his legal representative and physician, and any other individual the competent resident wants involved, to participate or assist in the discussion of the competent resident's wish to exercise independence and, if necessary, in developing a satisfactory informed consent agreement that balances the competent resident's choices and capabilities with the possibility that the choices will place the resident, other residents or staff members at risk of harm.
(d) Informed consent meeting.
(1) In a manner the competent resident can understand, the licensee shall discuss the competent resident's wish to exercise independence in directing the manner in which he receives care. The discussion must relate to the decision, behavior or action that places the competent resident, other residents or staff members at risk of harm and hazards inherent in the resident's action. The discussion must include reasonable alternatives, if any, for mitigating the risk, the significant benefits and disadvantages of each alternative and the most likely outcome of each alternative. In the case of an incompetent resident, the incompetent resident's legal representative shall participate in the discussion.
(2) A resident may not have the right to place other residents or staff members at risk, but, consistent with statutory and regulatory requirements, may elect to proceed with a decision, behavior or action affecting only his own safety or health status, foregoing alternatives for mitigating the risk, after consideration of the benefits and disadvantages of the alternatives including his wish to exercise independence in directing the manner in which he receives care. The licensee shall evaluate whether the competent resident understands and appreciates the nature and consequences of the risk, including the significant benefits and disadvantages of each alternative considered, and then shall further ascertain whether the competent resident is consenting to accept or mitigate the risk with full knowledge and forethought.
(e) Successful negotiation. If the parties agree, the informed consent agreement shall be reduced to writing and signed by all parties, including all individuals engaged in the negotiation at the request of the competent resident, and shall be retained in the resident's file as part of the service plan.
(f) Unsuccessful negotiation. If the parties do not agree, the licensee shall notify the resident, the resident's legal representative and the individuals engaged in the informed consent negotiation at the request of the resident. The residence shall include contact information on the local ombudsman or the appropriate advocacy organization and whether the licensee will issue a notice of discharge.
(g) Freedom from duress. An informed consent agreement must be voluntary and free of force, fraud, deceit, duress, coercion or undue influence, provided that a licensee retains the right to issue a notice of involuntary discharge in the event a resident's decision, behavior or action creates a dangerous situation and places other residents or staff members at risk of harm and, after a discussion of the risk, the resident declines alternatives to mitigate the risk.
(h) Individualized nature. An informed consent agreement must be unique to the resident's situation and his wish to exercise independence in directing the manner in which he receives care. The informed consent agreement shall be utilized only when a resident's decision, behavior or action creates a situation and places the resident, other residents or staff members at risk of harm. A licensee may not require execution of an informed consent agreement as a standard condition of admission.
(i) Liability. Execution of an informed consent agreement does not constitute a waiver of liability beyond the scope of the agreement or with respect to acts of negligence, tort, products defect, breach of fiduciary duty, contract violation, or any other claim or cause of action. An informed consent agreement does not relieve a licensee of liability for violation of statutory or regulatory requirements promulgated under this chapter nor does it affect the enforceability of regulatory provisions including those provisions governing admission or discharge or the permissible level of care in an assisted living residence.
(j) Change in resident's condition. An informed consent agreement must be updated following a significant change in the resident's condition that affects the risk potential to the resident, other residents or staff members.
(k) Either party has a right to rescind the informed consent agreement within 30 days of execution of the agreement.
RESIDENT RIGHTS § 2800.41. Notification of rights and complaint procedures.
(a) Upon admission, each resident and, if applicable, the resident's designated person, shall be informed of resident rights and the right to lodge complaints without intimidation, retaliation or threats of retaliation by the residence or its staff persons against the reporter. Retaliation includes transfer or discharge from the residence.
(b) Notification of rights and complaint procedures shall be communicated in an easily understood manner and in a language understood by or mode of communication used by the resident and, if applicable, the resident's designated person.
(c) The Department's poster of the list of resident's rights shall be posted in a conspicuous and public place in the residence.
(d) A copy of the resident's rights and complaint procedures shall be given to the resident and, if applicable, the resident's designated person, upon admission.
(e) A statement signed by the resident and, if applicable, the resident's designated person acknowledging receipt of a copy of the information specified in subsection (d), or documentation of efforts made to obtain signature, shall be kept in the resident's record.
§ 2800.42. Specific rights.
(a) A resident may not be discriminated against because of race, color, religious creed, disability, ancestry, sexual orientation, national origin, age or sex.
(b) A resident may not be neglected, intimidated, physically or verbally abused, mistreated, subjected to corporal punishment or disciplined in any way. A resident must be free from mental, physical, and sexual abuse and exploitation, neglect, financial exploitation and involuntary seclusion.
(c) A resident shall be treated with dignity and respect.
(d) A resident shall be informed of the rules of the residence and given 30 days' written notice prior to the effective date of a new residence rule.
(e) A resident shall have access to a telephone in the residence to make calls in privacy. Nontoll calls must be without charge to the resident.
(f) A resident has the right to receive and send mail.
(1) Outgoing mail may not be opened or read by staff persons unless the resident requests.
(2) Incoming mail may not be opened or read by staff persons unless upon the request of the resident or the resident's designated person.
(g) A resident has the right to communicate privately with and access the local ombudsman.
(h) A resident has the right to practice the religion or faith of the resident's choice, or not to practice any religion or faith.
(i) A resident shall receive assistance in accessing health care services, including supplemental health care services.
(j) A resident shall receive assistance in obtaining and keeping clean, seasonal clothing. A resident's clothing may not be shared with other residents.
(k) A resident and the resident's designated person, and other individuals upon the resident's written approval shall have the right to access, review and request corrections to the resident's record.
(l) A resident has the right to furnish his living unit and purchase, receive, use and retain personal clothing and possessions.
(m) A resident has the right to leave and return to the residence at times consistent with the residence rules and the resident's support plan.
(n) A resident has the right to relocate and to request and receive assistance, from the residence, in relocating to another facility. The assistance must include helping the resident get information about living arrangements, making telephone calls and transferring records.
(o) A resident has the right to freely associate, organize and communicate privately with his friends, family, physician, attorney and other persons.
(p) A resident shall be free from restraints.
(q) A resident shall be compensated in accordance with State and Federal labor laws for labor performed on behalf of the residence. Residents may voluntarily and without coercion perform tasks related directly to the resident's personal space or common areas of the residence.
(r) A resident has the right to receive visitors at any time provided that the visits do not adversely affect other residents. A residence may adopt reasonable policies and procedures related to visits and access. If the residence adopts those policies and procedures, they will be binding on the residence.
(s) A resident has the right to privacy of self and possessions. Privacy shall be provided to the resident during bathing, dressing, changing and medical procedures.
(t) A resident has the right to file complaints, grievances or appeals with any individual or agency and recommend changes in policies, residence rules and services of the residence without intimidation, retaliation or threat of discharge.
(u) A resident has the right to remain in the residence, as long as it is operating with a license, except as specified in § 2800.228 (relating to transfer and discharge).
(v) A resident has the right to receive services contracted for in the resident-residence contract.
(w) A resident has the right to use both the residence's procedures and external procedures to appeal involuntary discharge.
(x) A resident has the right to a system to safeguard a resident's money and property.
(y) To the extent prominently displayed in the written resident-residence contract, a residence may require residents to use providers of supplemental health care services as provided in § 2800.142 (relating to assistance with medical care and supplemental health care services). When the residence does not designate, the resident may choose the supplemental health care service provider. The actions and procedures utilized by a supplemental health care service provider chosen by a resident must be consistent with the residence's systems for caring for residents. This includes the handling and assisting with the administration of resident's medications, and may not conflict with Federal laws governing residents.
(z) The resident has the right to choose his primary care physician.
§ 2800.43. Prohibition against deprivation of rights.
(a) A resident may not be deprived of his rights.
(b) A resident's rights may not be used as a reward or sanction.
(c) Waiver of any resident right shall be void.
§ 2800.44. Complaint procedures.
(a) Prior to admission, the residence shall inform the resident and the resident's designated person of the right to file and the procedure for filing a complaint with the Department's Assisted Living Residence Licensing Office, local ombudsman or protective services unit in the area agency on aging, the Disability Rights Network or law enforcement agency.
(b) The residence shall permit and respond to oral and written complaints from any source regarding an alleged violation of resident rights, quality of care or other matter without retaliation or the threat of retaliation.
(c) If a resident indicates that he wishes to make a written complaint, but needs assistance in reducing the complaint to writing, the residence shall assist the resident in writing the complaint.
(d) The residence shall ensure investigation and resolution of complaints. The residence shall designate the staff person responsible for receiving complaints and determining the outcome of the complaint. The residence shall keep a log of all complaints and the outcomes of the complaints.
(e) Within 2 business days after the submission of a written complaint, a status report shall be provided by the residence to the complainant. If the resident is not the complainant, the resident and the resident's designated person shall receive the status report unless contraindicated by the support plan. The status report must indicate the steps that the residence is taking to investigate and address the complaint.
(f) Within 7 days after the submission of a written complaint, the residence shall give the complainant and, if applicable, the designated person, a written decision explaining the residence's investigation findings and the action the residence plans to take to resolve the complaint. If the resident is not the complainant, the affected resident shall receive a copy of the decision unless contraindicated by the support plan. If the residence's investigation validates the complaint allegations, a resident who could potentially be harmed or his designated person shall receive a copy of the decision, with the name of the affected resident removed, unless contraindicated by the support plan.
(g) The telephone number of the Department's Assisted Living Residence Licensing Office, the local ombudsman or protective services unit in the area agency on aging, the Disability Rights Network, the local law enforcement agency, the Commonwealth Information Center and the assisted living residence complaint hotline shall be posted in large print in a conspicuous and public place in the residence.
(h) Nothing in this section may affect in any way the right of the resident to file suit or claim for damages.
STAFFING § 2800.51. Criminal history checks.
(a) Criminal history checks shall be in accordance with the Older Adult Protective Services Act (35 P. S. §§ 10225.101—10225.5102), and 6 Pa. Code Chapter 15 (relating to protective services for older adults).
(b) The hiring policies shall be in accordance with the Department of Aging's Older Adult Protective Services Act policy as posted on the Department of Aging's web site.
§ 2800.52. Staff hiring, retention and utilization.
Hiring, retention and utilization of staff persons shall be in accordance with the Older Adult Protective Services Act (35 P. S. §§ 10225.101—10225.5102), 6 Pa. Code Chapter 15 (relating to protective services for older adults) and other applicable regulations.
§ 2800.53. Qualifications and responsibilities of administrators.
(a) The administrator shall have one of the following qualifications:
(1) A license as an RN from the Department of State and 1 year, in the prior 10 years, of direct care or administrative experience in a health care or human services field.
(2) An associate's degree or 60 credit hours from an accredited college or university in a human services field and 1 year, in the prior 10 years, of direct care or administrative experience in a health care or human services field.
(3) An associate's degree or 60 credit hours from an accredited college or university in a field that is not related to human services and 2 years, in the prior 10 years, of direct care or administrative experience in a health care or human services field.
(4) A license as an LPN from the Department of State and 1 year, in the prior 10 years, of direct care or administrative experience in a health care or human services field.
(5) A license as a nursing home administrator from the Department of State and 1 year, in the prior 10 years, of direct care or administrative experience in a health care or human services field.
(6) With the exception of administrators qualified under § 2600.53(a)(5) (relating to qualifications and responsibilities of administrators), experience as a personal care home administrator, if the following requirements are met:
(i) Employed as a personal care home administrator for 2 years prior to January 18, 2011.
(ii) Completed the administrator training requirements and pass the Department-approved competency-based training test in § 2800.64 (relating to administrator training and orientation) by January 18, 2012.
(b) The administrator shall be 21 years of age or older.
(c) The administrator shall be responsible for the administration and management of the residence, including the health, safety and well-being of the residents, implementation of policies and procedures and compliance with this chapter.
(d) The administrator shall have the ability to provide assisted living services or to supervise or direct the work to provide assisted living services.
(e) The administrator shall have knowledge of this chapter.
(f) The administrator shall have the ability to comply with applicable laws, rules and regulations, including this chapter.
(g) The administrator shall have the ability to maintain or supervise the maintenance of financial and other records.
(h) At all times the administrator shall be free from a medical condition, including drug or alcohol addiction that would limit the administrator from performing duties with reasonable skill and safety.
§ 2800.54. Qualifications for direct care staff persons.
(a) Direct care staff persons shall have the following qualifications:
(1) Be 18 years of age or older, except as permitted in subsection (d).
(2) Have a high school diploma, GED or active registry status on the Pennsylvania nurse aide registry.
(3) Be free from a medical condition, including drug or alcohol addiction, that would limit direct care staff persons from providing necessary assisted living services with reasonable skill and safety.
(4) Be able to communicate in a mode or manner understood by the resident. Strategies that promote interactive communication on the part of direct care staff and individual residents shall be developed in accordance with the resident's final support plan under § 2800.227(e) (relating to development of the final support plan).
(b) A volunteer who performs or provides ADLs shall meet the direct staff person qualifications and training requirements specified in this chapter.
(c) A resident receiving assisted living services who voluntarily performs tasks in the residence will not be considered a volunteer under this chapter.
(d) Food services or housekeeping staff may be 16 or 17 years of age.
§ 2800.55. Portability of staff training.
A staff person who transfers to another licensed residence, or from a licensed personal care home shall be given credit for any completed hours of training that are required on an annual basis, provided however, that the staff person shall complete any additional training required by this chapter for assisted living residence direct care staff.
§ 2800.56. Administrator staffing.
(a) Except for temporary absences under subsection (b), the administrator shall be present in the residence an average of 36 hours or more per week, in each calendar month. At least 30 hours per week must be during normal business hours.
(b) If the administrator is unavailable to meet the hourly requirements in subsection (a) due to a temporary absence, the administrator shall assign an administrator designee in writing to supervise the residence during the administrator's temporary absence. The administrator designee shall meet the following requirements:
(1) Have 3,000 hours of direct operational responsibility for a senior housing facility, health care facility, residential care facility, adult daily living facility or other group home licensed or approved by the Commonwealth.
(2) Pass the Department-approved competency-based administrator training test under § 2800.64(a)(3) (relating to administrator training and orientation.)
(3) Meet the qualification and training requirements of a direct care staff person under §§ 2800.54 and 2800.65 (relating to qualifications for direct care staff persons; and staff orientation and direct care staff person training and orientation).
(c) The administrator shall assign a staff person in writing to supervise the residence during the administrator's or administrator designee's absence. The staff person shall meet the qualification and training requirements of a direct care staff person under §§ 2800.54 and 2800.65.
(d) During the administrator's and administrator designee's absence, the administrator or administrator designee shall be on-call.
§ 2800.57. Direct care staffing.
(a) At all times one or more residents are present in the residence, a direct care staff person who is 21 years of age or older shall be present in the residence. The direct care staff person may be the administrator if the administrator provides direct care services.
(b) Direct care staff persons shall be available to provide at least 1 hour per day of assisted living services to each mobile resident.
(c) Direct care staff persons shall be available to provide at least 2 hours per day of assisted living services to each resident who has mobility needs.
(d) At least 75% of the assisted living service hours specified in subsections (b) and (c) shall be available during waking hours.
§ 2800.58. Awake staff persons.
Direct care staff persons on duty in the residence shall be awake at all times.
§ 2800.59. Multiple buildings.
For a residence with multiple buildings on the same premises regardless of the distance between buildings, the direct care staffing requirements in § 2800.57 (relating to direct care staffing) apply at all times residents are present in the residence.
§ 2800.60. Additional staffing based on the needs of the residents.
(a) Staffing shall be provided to meet the needs of the residents as specified in the resident's assessment and support plan. Residence staff or service providers who provide services to the residents in the residence shall meet the applicable professional licensure requirements.
(b) The staffing level in this chapter is minimum only. The Department may require additional staffing as necessary to protect the health, safety and well-being of the residents. Requirements for additional staffing will be based on the resident's assessment and support plan, the design and construction of the residence and the operation and management of the residence.
(c) Additional staff hours, or contractual hours, shall be provided as necessary to meet the transportation, laundry, food service, housekeeping and maintenance needs of the residents.
(d) In addition to the staffing requirements in this chapter, the residence shall have a licensed nurse available in the building or on call at all times. The licensed nurse shall be either an employee of the residence or under contract with the residence.
(e) The residence shall have a dietician on staff or under contract to provide for any special dietary needs of a resident as indicated in his support plan.
§ 2800.61. Substitute personnel.
When regularly scheduled direct care staff persons are absent, the administrator shall arrange for coverage by substitute personnel who meet the direct care staff qualifications and training requirements as specified in §§ 2800.54 and 2800.65 (relating to qualifications for direct care staff persons; and staff orientation and direct care staff person training and orientation).
§ 2800.62. List of staff persons.
The administrator shall maintain a current list of the names, addresses and telephone numbers of staff persons including substitute personnel and volunteers.
§ 2800.63. First aid, CPR and obstructed airway training.
(a) For every 35 residents, there shall be at least one staff person trained in first aid and certified in obstructed airway techniques and CPR present in the residence at all times to meet the needs of the residents.
(b) Current training in first aid and certification in obstructed airway techniques and CPR shall be provided by an individual certified as a trainer by a hospital or other recognized health care organization.
(c) Licensed, certified and registered medical personnel meet the qualifications in subsection (a) and are exempt from the training requirements in subsections (a) and (b).
(d) A staff person who is trained in first aid or certified in obstructed airway techniques or CPR shall provide those services in accordance with his training, unless the resident has a do not resuscitate order.
§ 2800.64. Administrator training and orientation.
(a) Prior to initial employment as an administrator, a candidate shall successfully complete the following:
(1) An orientation program approved and administered by the Department.
(2) A 100-hour standardized Department-approved administrator training course. The training provided for in § 2800.69 (relating to additional dementia-specific training) shall be in addition to the 100-hour training course.
(3) A Department-approved competency-based training test with a passing score.
(b) The standardized Department-approved administrator training course specified in subsection (a)(2) must include the following:
(1) Fire prevention and emergency preparedness.
(2) Medication procedures, medication effects and side effects, universal precautions and personal hygiene.
(3) Certification in CPR and obstructed airway techniques and training in first aid.
(4) Assisted living services.
(5) Local, State and Federal laws and regulations pertaining to the operation of a residence.
(6) Nutrition, food handling and sanitation.
(7) Recreation.
(8) Care for residents with mental illness.
(9) Resident rights.
(10) Care for residents with cognitive and neurological impairments and other special needs.
(11) Care for residents with mental retardation.
(12) Community resources, social services and activities in the community.
(13) Staff supervision and staff person training including developing orientation and training guidelines for staff.
(14) Budgeting, financial recordkeeping and resident records including:
(i) Writing, completing and implementing initial assessments, annual assessments and support plans.
(ii) Resident-residence contracts.
(15) Gerontology.
(16) Abuse and neglect prevention and reporting.
(17) Cultural competency.
(18) Infection control.
(19) Training specific to the resident composition.
(20) Training on person-centered care, informed consent, aging in place and the availability of services to support aging in place.
(21) Incident management and incident reporting.
(22) The requirements of this chapter.
(c) An administrator shall have at least 24 hours of annual training relating to the job duties. The Department-approved administrator training course specified in subsection (a) fulfills the annual training requirement for the first year.
(d) Annual training shall be provided by Department-approved training sources listed in the Department's assisted living residence training resource directory or by an accredited college or university, courses approved for credit by National Continuing Education Review Service/National Association of Boards of Examiners of Long-Term Care Administrators or the Bureau of Professional and Occupational Affairs in the Department of State.
(e) An administrator who has successfully completed the training in subsections (a)—(d) shall provide written verification of successful completion to the Department's Assisted Living Residence Licensing Office.
(f) A record of training including the individual trained, date, source, content, length of each course and copies of certificates received shall be kept.
(g) A licensed nursing home administrator who is employed as an administrator prior to January 18, 2011, is exempt from the qualification and training requirements under §§ 2800.53 and 2800.64 (relating to qualifications and responsibilities of administrators; and administrator training and orientation) if the administrator continues to meet the applicable licensing requirements. A licensed nursing home administrator hired as an administrator after January 18, 2011, shall complete and pass the Department-approved assisted living administrator competency-based test.
§ 2800.65. Staff orientation and direct care staff person training and orientation.
(a) Prior to or during the first work day, direct care staff persons and other staff persons including ancillary staff persons, substitute personnel and volunteers shall have an orientation in general fire safety and emergency preparedness that includes the following:
(1) Evacuation procedures.
(2) Staff duties and responsibilities during fire drills, as well as during emergency evacuation, transportation and at an emergency location, if applicable.
(3) The designated meeting place outside the building or within the fire-safe area in the event of an actual fire.
(4) Smoking safety procedures, the residence's smoking policy and location of smoking areas, if applicable.
(5) The location and use of fire extinguishers.
(6) Smoke detectors and fire alarms.
(7) Telephone use and notification of emergency services.
(b) Direct care staff persons shall complete an initial orientation approved by the Department before providing direct care to residents.
(c) Direct care staff persons shall be certified in first aid and CPR before providing direct care to residents.
(d) A sufficient number of direct care staff persons shall be certified in obstructed airway techniques to meet the staff to resident ratios under § 2800.63(a) (relating to first aid, CPR and obstructed airway training) before providing direct care to residents.
(e) Within 40 scheduled working hours, direct care staff persons, ancillary staff persons, substitute personnel and volunteers shall have an orientation training that includes the following:
(1) Resident rights.
(2) Emergency medical plan.
(3) Mandatory reporting of abuse and neglect under the Older Adult Protective Services Act (35 P. S. §§ 10225.101—10225.5102).
(4) Reporting of reportable incidents and conditions.
(5) Safe management techniques.
(6) Core competency training that includes the following:
(i) Person-centered care.
(ii) Communication, problem solving and relationship skills.
(iii) Nutritional support according to resident preference.
(f) Ancillary staff persons shall have a general orientation to their specific job functions as it relates to their position prior to working in that capacity.
(g) Direct care staff persons may not provide unsupervised assisted living services until completion of 18 hours of training in the following areas:
(1) Training that includes a demonstration of job duties, followed by supervised practice.
(2) Successful completion and passing the Department-approved direct care training course and passing of the competency test.
(3) Initial direct care staff person training to include the following:
(i) Safe management techniques.
(ii) Assisting with ADLs and IADLs.
(iii) Personal hygiene.
(iv) Care of residents with mental illness, neurological impairments, mental retardation and other mental disabilities.
(v) The normal aging-cognitive, psychological and functional abilities of individuals who are older.
(vi) Implementation of the initial assessment, annual assessment and support plan.
(vii) Nutrition, food handling and sanitation.
(viii) Recreation, socialization, community resources, social services and activities in the community.
(ix) Gerontology.
(x) Staff person supervision, if applicable.
(xi) Care and needs of residents with special emphasis on the residents being served in the residence.
(xii) Safety management and hazard prevention.
(xiii) Universal precautions.
(xiv) The requirements of this chapter.
(xv) The signs and symptoms of infections and infection control.
(xvi) Care for individuals with mobility needs, such as prevention of decubitus ulcers, incontinence, malnutrition and dehydration, if applicable to the residents served in the residence.
(xvii) Behavioral management techniques.
(xviii) Understanding of the resident's assessment and how to implement the resident's support plan.
(xix) Person-centered care and aging in place.
(h) Direct care staff persons shall have at least 16 hours of annual training relating to their job duties. The training required in § 2800.69 (relating to additional dementia-specific training) shall be in addition to the 16 hour annual training.
(i) Training topics for the annual training for direct care staff persons must include the following:
(1) Medication self-administration training.
(2) Instruction on meeting the needs of the residents as described in the assessment tool, medical evaluation and support plan.
(3) Care for residents with dementia, cognitive and neurological impairments.
(4) Infection control and general principles of cleanliness and hygiene and areas associated with immobility, such as prevention of decubitus ulcers, incontinence, malnutrition and dehydration.
(5) Assisted living service needs of the resident.
(6) Safe management techniques.
(7) Care for residents with mental illness or mental retardation, or both, if the population is served in the residence.
(j) Direct care staff persons, ancillary staff persons, substitute personnel and regularly scheduled volunteers shall be trained annually in the following areas:
(1) Fire safety completed by a fire safety expert or by a staff person trained by a fire safety expert. Videos prepared by a fire safety expert are acceptable for the training if accompanied by an onsite staff person trained by a fire safety expert.
(2) Emergency preparedness procedures and recognition and response to crises and emergency situations.
(3) Resident rights.
(4) The Older Adult Protective Services Act (35 P. S. §§ 10225.101—10225.708).
(5) Falls and accident prevention.
(6) New population groups that are being served at the residence that were not previously served, if applicable.
(k) If a staff person has completed the required initial direct care staff person training within the past year as a direct care staff person at another residence, the requirement for initial direct care staff person training in this section does not apply if the staff person provides written verification of completion of the training.
(l) A record of training including the staff person trained, date, source, content, length of each course and copies of any certificates received, shall be kept.
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