Overarching concerns about the proposed regulations
Overarching Concerns about the Proposed Assisted Living Regulations
1. The regulations do not ensure that facilities can and will meet Residents’ Care Needs. As proposed, a consumer would have to move in, sign a contract for residency and services, and begin payment to the facility weeks before the facility would be required to identify the consumer’s care needs and explain to the consumer and her family whether the facility can meet her needs, how it proposes to meet those needs or even how much the consumer’s care would actually cost. Although there is a short-form, pre-screening checklist to determine whether the consumer has conditions that would require exclusion from the facility or is permissible to be admitted, real comprehensive consumer needs assessments need not to be completed until “within 15 days” after admission to an assisted living facility. The care plan need not be completed until “within 30 days” after admission to the facility. As proposed, the regulations put consumers in the position of having to move into a facility without knowing for certain if they will be able to remain there. With the possible exception of an immediate discharge to the Assisted Living facility from a hospital, a comprehensive assessment should be completed prior to admission and should determine whether she can live in the facility successfully, what are her care needs, whether they can be met (and whether they can be met in a way that comports with the consumers’ choices around how and when to receive care), and what are the costs associated with her care in that facility.
As written, the proposed regulations provide no sufficiently clear statement as to what assisted living services a consumer actually can expect to be able to access and the regulations articulate no core package of benefits that must be purchased. If consumers are not assured that each facility will universally provide a minimum core benefit package with the admission price, consumers cannot compare apples to apples. Without a minimum core benefit, consumers cannot understand the ala carte items for which they might be charged or the value added by purchasing an “enhanced” benefit package. Not only will it be impossible to understand how facilities differ in what they offer and cost, but it will be impossible to tell exactly what care will regularly cost in the chosen facility, as consumers may end up being nickeled and dimed at every turn. The last thing PALCA wants to see is consumers being forced to choose between three nutritious meals a day and having their care needs met.
The proposed regulations give the facility total control over where residents get all medical care and supportive services. The proposed regulations contain no articulation of any ability to choose and to use outside providers. In fact, the regulations articulate that a facility can force a resident to use providers of its choosing (despite Medicare, Medicaid and other freedom of choice rules and the regs have awkward language about not unreasonably withholding approval of outside provider when consumer has insurance.) The allowance for consumers to use their own physicians and pharmacies that exist in the personal care home system has been eliminated. Consumers want to be able to use their own providers. It provides a check and balance against poor care, conflict of interest, and complete isolation. And, if nothing else, it allows the consumer to use the marketplace when quality care is not provided in their supportive, apartment like assisted living setting.
The Informed Consent Process lacks adequate means of protecting consumers in the process. The proposed regulations create an informed consent system that lacks protections for consumers. The regulations must be correct to ensure that consumers are not forced to regularly or hastily release facilities of their responsibility to provide care and their liability for failure to do so. There must be an independent entity designated to help consumers determine the merits of entering into an informed consent agreement. Ombudsmen are in appropriately used in this capacity.
The playing field is completely off kilter when the facility has total control over whether a consumer can stay or has to find a new place to call home. The proposed regulations suggest the possibility of aging in place yet try to address the Act 56 articulation of excludable conditions, which if develop would warrant a facility to discharge the consumer. The proposed regulations present excludable conditions provisions that draw black and white lines in areas where there realistically are some shades of gray. For example, why should a resident be DISCHARGED for developing stage 3 or 4 decubiti? Why not transfer the resident to a hospital and readmit when she has healed? A tenant would never be evicted from a rental apartment for having to go to a hospital for a couple weeks, especially if she is continuing to pay the rent. The excludable conditions provisions must be made more fair and reasonable so as to protect residents’ ability to remain in the only home the resident has to call home.
2. The proposed regulations do not guarantee that all consumers have meaningful rights of which they are aware and that they are free to exercise their rights.It is critical that applicants for residency have enumerated rights and that the rights for applicants and residents all be articulated in a regulatory section on rights. The proposed regulations make no changes to the rights provided personal care home residents despite the differences in the models and the greater frailty or care dependence of the population being served. Additionally, the “rights” section is what the residents are provided as their list of “rights”. It is also what is posted in the facility as the residents’ rights. Yet, the residents right provision of the proposed regulations does not articulate a consolidated statement of all the rights the resident has. The right to view your records or to be notified of aggregious incidents or violations are embedded elsewhere in the regulations. However, they do not appear in the official statement of “rights” and most consumers never know about these other rights nor how to exercise them. All resident rights must be contained in a single section of the regulations to which consumers and their families can turn to understand how or whether they are protected. And consumers must be provided meaningful rights and protections beyond what are already in the personal care home regulations.
The proposed regulations contain NO resident or applicant appeal rights or appeal process. While the providers have a place to turn should they need to challenge a licensing decision or a penalty imposed, the resident has no ability to challenge the facility’s unilateral determination that her needs can no longer be met and that she must be discharged. There are no articulated rights 1) to appeal a discharge to the Department’s Bureau of Hearings and Appeals and 2) to continue to reside in the facility pending the outcome of the appeal. These must be provided to residents.
3. The proposed regulations do not assure that Pennsylvania’s assisted living residents will be cared for in safe and accessible facilities.
As proposed, facilities that exist as of the day the regulations take effect would not have to meet the best available standards or practices for fire safety or even wheelchair accessibility. The regulations do not address the issues of older construction that do not meet current fire or life safety or, perhaps, were grandfathered years back and never had to come up to current best practice standards for safety and accessibility. Similarly, they are not required to admit service animals for residents who need them.
As proposed, newly constructed living units must have 250 square feet of living space. This is in line with the state housing agencies’ recommendations. Existing construction, however, need only have 175 square feet of living space and this is unacceptable as it is too small and not accessible to a wheelchair user.
4. The proposed regulations do not ensure that care is provided by appropriate amounts of adequately trained staff.
As written, the proposed regulations rely on the archaic terms of “mobile” and “immobile” residents and the insistence that mobility determines 1 v. 2 hours of needed direct care where they should, instead, set a floor of at least 2 hours of care per resident per day with the actual care hours determined based on assessed needs of residents. The proposed regulations for assisted living include no changes to the direct care staff qualifications or training from the minimal training required of personal care home staff. As proposed, direct care staff would not have to complete a minimum amount of training hours and not all direct care staff would need any training in first aid or CPR. No minimum training or qualifications are articulated for third party contractors serving as direct care staff and no requirement that all supervisory staff have at least the direct care staff training requirements. ALL staff and ALL Administrators are not required to be trained in cognitive support services and care for cognitively impaired residents. And, there is no affirmative statement ensuring that training requirements will not be waived.
5. The proposed regulations do not address many key areas and leave unanswered too many questions that must be addressed in order for the public to understand what assisted living means and what they can expect.
The regulations fail to address marketing and how facilities can or cannot market or present themselves as “assisted living”. They also do not address the issues around when or whether a facility can be dually licensed as an assisted living facility and something else and what requirements would have to be met in order for that to happen. The regulations fail to define key terms and make no steps towards improving upon the inadequate enforcement provisions inherited from the personal care home regulatory system.