[40 Pa.B. 4073]
[Saturday, July 17, 2010]

[Continued from previous Web Page]

ENFORCEMENT

§ 2800.261. Classification of violations.

 (a) The Department will classify each violation of this chapter into one of three categories as described in paragraphs (1)—(3). A violation identified may be classified as Class I, Class II or Class III, depending upon the severity, duration and the adverse effect on the health and safety of residents.

 (1) Class I. Class I violations have resulted in or have a substantial probability of resulting in death or serious mental or physical harm to a resident.

 (2) Class II. Class II violations have a substantial adverse effect upon the health, safety or well-being of a resident.

 (3) Class III. Class III violations are minor violations, which have an adverse effect upon the health, safety or well-being of a resident.

 (b) The Department's guidelines for determining the classification of violations are available from the Department.

§ 2800.262. Penalties and corrective action.

 (a) The Department will assess a penalty for each violation of this chapter.

 (b) Penalties will be assessed on a daily basis from the date on which the citation was issued until the date the violation is corrected, except in the case of Class II and Class III violations.

 (c) In the case of a Class II violation, assessment of the penalty will be suspended for 5 days from the date of citation to permit sufficient time for the residence to correct the violation. If the residence fails to provide proof of correction of the violation to the Department within the 5-day period, the fine will be retroactive to the date of citation. The Department may extend the time period for good cause.

 (d) The Department will assess a penalty of $20 per resident per day for each Class I violation. Each Class I violation shall be corrected within 24 hours.

 (e) The Department will assess a minimum penalty of $5 per resident per day, up to a maximum penalty of $15 per resident per day, for each Class II violation.

 (f) There is no monetary penalty for Class III violations unless the residence fails to correct the violation within 15 days. Failure to correct a Class III violation within the 15-day period may result in a penalty assessment of up to $3 per resident per day for each Class III violation retroactive to the date of the citation.

 (g) If a residence is found to be operating without a license, a penalty of $500 will be assessed. After 14 days, if the residence operator cited for operating without a license fails to file an application for a license, the Department will assess an additional $20 for each resident for each day during which the residence operator fails to apply.

 (h) A residence charged with a violation of this chapter or Chapter 20 (relating to licensure or approval of facilities and agencies) has 30 days to pay the assessed penalty in full.

§ 2800.263. Appeals of penalty.

 (a) If the residence that is fined intends to appeal the amount of the penalty or the fact of the violation, the residence shall forward the assessed penalty, not to exceed $500, to the Secretary for placement in an escrow account with the State Treasurer. A letter appealing the penalty shall be submitted with the assessed penalty. This process constitutes an appeal.

 (b) If, through an administrative hearing or judicial review of the proposed penalty, it is determined that no violation occurred or that the amount of the penalty shall be reduced, the Secretary will, within 30 days, remit the appropriate amount to the legal entity together with interest accumulated on these funds in the escrow deposit.

 (c) Failure to forward payment of the assessed penalty to the Secretary within 30 days will result in a waiver of the right to contest the fact of the violation or the amount of the penalty.

 (d) After an administrative hearing decision that is adverse to the legal entity, or a waiver of the administrative hearing, the assessed penalty amount will be made payable to the ''Commonwealth of Pennsylvania.'' It will be collectible in a manner provided by law for the collection of debts.

 (e) If a residence liable to pay the penalty neglects or refuses to pay the penalty upon demand, the failure to pay will constitute a judgment in favor of the Commonwealth in the amount of the penalty, together with the interest and costs that may accrue on these funds.

§ 2800.264. Use of fines.

 (a) Money collected by the Department under this section will be placed in a special restricted receipt account.

 (b) Money collected will be used first to defray the expenses incurred by residents relocated under this chapter.

 (c) The Department will use money remaining in this account to assist with paying for enforcement of this chapter. Fines collected will not be subject to 42 Pa.C.S. § 3733 (relating to deposits into account).

§ 2800.265. Review of classifications.

 Semiannually, the Department will review the standard guidelines for the classification of violations and evaluate the use of these guidelines. This review is to ensure the uniformity and consistency of the classification process.

§ 2800.266. Revocation or nonrenewal of licenses.

 (a) The Department will temporarily revoke the license of a residence if, without good cause, one or more Class I violations remain uncorrected 24 hours after the residence has been cited for the violation.

 (b) The Department will temporarily revoke the license of a residence if, without good cause, one or more Class II violations remain uncorrected 15 days after the citation.

 (c) Upon the revocation of a license in the instances described in subsections (a) and (b), or if the residence continues to operate without applying for a license as described in § 2800.262(h) (relating to penalties and corrective action), residents shall be relocated.

 (d) The revocation of a license may terminate upon the Department's determination that its violation is corrected.

 (e) If, after 3 months, the Department does not issue a new license for a residence, the prior license is revoked under section 1087 of the Public Welfare Code (62 P. S. § 1087).

 (1) Revocation or nonrenewal under this section will be for a minimum of 5 years.

 (2) A residence, which has had a license revoked or not renewed under this section, will not be allowed to operate, staff or hold an interest in a residence which applies for a license for 5 years after the revocation or nonrenewal.

 (f) If a residence has been found to have Class I violations on two or more separate occasions during a 2-year period without justification, the Department will revoke or refuse to renew the license of the residence.

 (g) The power of the Department to revoke or refuse to renew or issue a license under this section is in addition to the powers and duties of the Department under section 1026 of the Public Welfare Code (62 P. S. § 1026).

§ 2800.267. Relocation of residents.

 (a) If the relocation of residents is due to the failure of the residence to apply for a license, the Department will offer relocation assistance to the residents. This assistance will include each resident's involvement in planning the relocation, except in the case of an emergency. Each resident shall have the right to choose among the available alternatives after an opportunity to visit the alternative residences. These procedures will occur even if the residents are placed in a temporary living situation.

 (b) A resident will not be relocated if the Secretary determines in writing that the relocation is not in the best interest of the resident.

§ 2800.268. Notice of violations.

 (a) The administrator shall give each resident and the resident's designated person written notification of a Class I violation within 24 hours of the citation.

 (b) The administrator shall give each resident and the resident's designated person oral or written notification of a Class I or Class II violation, as defined in § 2800.261 (relating to classification of violations), which remains uncorrected for 5 days after the date of citation.

 (c) If a Class II violation remains uncorrected within 5 days following the citation, the administrator shall give written notice of the violation to each resident and the resident's designated person on the 6th day from the date of the citation.

 (d) The Department will provide immediate written notification to the appropriate long-term care ombudsman of Class I violations, and notification of Class II violations which remain uncorrected 5 days after the date of citation.

§ 2800.269. Ban on admissions.

 (a) The Department will ban new admissions to a residence:

 (1) That has been found to have a Class I violation.

 (2) That has been found to have a Class II violation that remains uncorrected without good cause 5 days after being cited for the violation.

 (3) Whose license has been revoked or nonrenewed.

 (b) The Department may ban new admissions to a residence that has been found to have a repeated Class II violation within the past 2 years.

 (c) A ban on admissions will remain in effect until the Department determines that the residence has corrected the violation, and after the correction has been made, has maintained regulatory compliance for a period of time sufficient to permit a conclusion that the compliance will be maintained for a prolonged period.

§ 2800.270. Correction of violations.

 The correction of a violation cited under section 1086 of the Public Welfare Code (62 P. S. § 1086) does not preclude the Department from issuing a provisional license based upon the same violation.

Appendix A

Assisted Living Resident Rights:
During Residency and During Discharge or Termination of Residency

 The following are assisted living resident rights, including the notification of a resident's designated person:

General Requirements

1	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.	§ 2800.25(h) Resident-residence contract
2	Either party has a right to rescind the informed consent agreement within 30 days of execution of the agreement.	§ 2800.30(k) Informed consent process

Resident Rights

3	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.	§ 2800.41(a) Notification of rights and complaint procedures
4	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.	§ 2800.41(b) Notification of rights and complaint procedures
5	The Department's poster of the list of resident's rights shall be posted in a conspicuous and public place in the residence.	§ 2800.41(c) Notification of rights and complaint procedures
6	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.	§ 2800.41(d) Notification of rights and complaint procedures
7	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.	§ 2800.41(e) Notification of rights and complaint procedures
8	A resident may not be discriminated against because of race, color, religious creed, disability, ancestry, sexual orientation, national origin, age or sex.	§ 2800.42(a) Specific rights
9	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.	§ 2800.42(b) Specific rights
10	A resident shall be treated with dignity and respect.	§ 2800.42(c) Specific rights
11	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.	§ 2800.42(d) Specific rights
12	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.	§ 2800.42(e) Specific rights
13	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 the resident requests.	§ 2800.42(f)(1) & (2) Specific rights
14	A resident has the right to communicate privately with and access the local ombudsman.	§ 2800.42(g) Specific rights
15	A resident has the right to practice the religion or faith of the resident's choice, or not to practice any religion or faith.	§ 2800.42(h) Specific rights
16	A resident shall receive assistance in accessing health care services, including supplemental health care services.	§ 2800.42(i) Specific rights
17	A resident shall receive assistance in obtaining and keeping clean, seasonal clothing. A resident's clothing may not be shared with other residents.	§ 2800.42(j) Specific rights
18	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.	§ 2800.42(k) Specific rights
19	A resident has the right to furnish his living unit and purchase, receive, use and retain personal clothing and possessions.	§ 2800.42(l) Specific rights
20	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.	§ 2800.42(m) Specific rights
21	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.	§ 2800.42(n) Specific rights
22	A resident has the right to freely associate, organize and communicate privately with his friends, family, physician, attorney and other persons.	§ 2800.42(o) Specific rights
23	A resident shall be free from restraints.	§ 2800.42(p) Specific rights
24	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.	§ 2800.42(q) Specific rights
25	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.	§ 2800.42(r) Specific rights
26	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.	§ 2800.42(s) Specific rights
27	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.	§ 2800.42(t) Specific rights
28	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).	§ 2800.42(u) Specific rights
29	A resident has the right to receive services contracted for in the resident-residence contract.	§ 2800.42(v) Specific rights
30	A resident has the right to use both the residence's procedures and external procedures to appeal involuntary discharge.	§ 2800.42(w) Specific rights
31	A resident has the right to a system to safeguard a resident's money and property.	§ 2800.42(x) Specific rights
32	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 services 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 shall not conflict with Federal laws governing residents.	§ 2800.42(y) Specific rights
33	The resident has the right to choose his primary care physician.	§ 2800.42(z) Specific rights
34	A resident may not be deprived of his rights.	§ 2800.43(a) Prohibition against deprivation of rights
35	A resident's rights may not be used as a reward or sanction.	§ 2800.43(b) Prohibition against deprivation of rights
36	Waiver of any resident right shall be void.	§ 2800.43(c) Prohibition against deprivation of rights
37	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.	§ 2800.44(a) Complaint procedures
38	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.	§ 2800.44(b) Complaint procedures
39	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.	§ 2800.44(c) Complaint procedures
40	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.	§ 2800.44(d) Complaint procedures
41	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.	§ 2800.44(e) Complaint procedures
42	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.	§ 2800.44(f) Complaint procedures
43	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.	§ 2800.44(g) Complaint procedures
44	Nothing in this § 2800.44 (relating to complaint procedures) shall affect in any way the right of the resident to file suit or claim for damages.	§ 2800.44(h) Complaint procedures

Nutrition

45

Residents have the right to purchase groceries and prepare their own food in addition to the three meal plan required in § 2800.220 (b) (relating to service provision) in their living units unless it would be unsafe for them to do so consistent with their support plan.

§ 2800.161(h) Nutritional adequacy

Medications

46

The residence shall educate the resident of the right to question or refuse a medication if the resident believes there may be a medication error. Documentation of this resident education shall be kept.

§ 2800.191 Resident Education

Services

47	A resident or a designated person has a right to request the review and modification of his support plan.	§ 2800.227(j) Development of the final support plan
48	If the legal entity chooses to voluntarily close the residence or if the Department has initiated legal action to close the residence, the Department working in conjunction with appropriate local authorities, will offer relocation assistance to the residents. Except in the case of an emergency, each resident may participate in planning the transfer, and shall have the right to choose among the available alternatives after an opportunity to visit the alternative residences. These procedures apply even if the resident is placed in a temporary living situation.	§ 2800.228(f) Transfer and discharge

Enforcement

49

If the relocation of residents is due to the failure of the residence to apply for a license, the Department will offer relocation assistance to the residents. This assistance will include each resident's involvement in planning the relocation, except in the case of an emergency. Each resident shall have the right to choose among the available alternatives after an opportunity to visit the alternative residences. These procedures will occur even if the residents are placed in a temporary living situation.

§ 2800.267(a) Relocation of residents

[Pa.B. Doc. No. 10-1316. Filed for public inspection July 16, 2010, 9:00 a.m.]

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