Specific Problems with the Proposed AL Regulations
Specific Problems with the Proposed Assisted Living Regulations
Published on 8/9/08 for Public Comment by 9/15/08
GENERAL PROVISIONS
Section. 2800.1 through 2800.5
1) 2800.4 – Definitions.
a. The proposed regulations left out definitions of Assisted Living Services, Assistive Technology, NFCE, Third-Party Provider, HCBS Waivers, Living Unit and other key terms that require clear definition.
b. The proposed regulations left in the definitions of Mobile and Immobile resident, terms that many find offensive. Staffing levels are later links to whether a resident is mobile or immobile regardless of actual care needs.
c. The proposed regulations failed to improve upon the definitions of Aging in Place, Supplemental Health Care Services, Ancillary Staff Person, Designee, and Neglect as we had recommended.
d. The proposed regulations added a definition of Health care or human services field (because it relates to the work qualifications an Administrator must have) and this definition raises some concern (as the proposed regulations included a “kitchen sink” final phrase pulling in any background that involved human beings, it appears). 2800.4
2) 2800.5 – Access to the facility and the residents
a. Proposed regulations do not state that a facility must permit family members, the resident’s attorney, law enforcement, or building code inspectors to enter and access the facility.
GENERAL REQUIREMENTS
Section 2800.11 through 2800.30
3) 2800.11 Omits any standard by which the state will judge whether a personal care home is suitable for transitioning to an Assisted Living Residence. We recommend such things as in full compliance with new regulatory requirements and exemplary compliance history with prior applicable regulations.
4) 2800.14 – Fire Safety Approval – This needs to indicate the impact to the facility’s license if the fire safety approval is withdrawn by the appropriate fire safety agency. The facility should be put on a provisional license and should be required to remedy fire safety problems immediately or residents should be relocated until the facility is safe again.
5) 2800.16 – Reportable Incidents – The regulations need to indicate that the facility must write up a report on the facility’s incident investigation findings to make available at inspections and that the state should be compiling and publishing data on the nature and scope of reportable incidents that occur in ALRs.
6) 2800.18 – Applicable Laws. To the extent that the state expects to permit old existing buildings to be converted to assisted living use, it is critical that the regulations require facilities to satisfy applicable fire safety and life safety laws as if they were new construction. This would ensure that the best practices for keeping residents safe are applied and not the outdated methods that were in place when the many year old structure was build.
7) 2800.19 – Waivers. These are brand new regulations for a brand new licensure category. No exceptions or waivers to these requirements should be granted to a facility when first seeking to become an assisted living facility. At a later date, a facility that complied with the requirements that wants to try to do something a little differently could potentially be granted a waiver of the regulations, but only if the request goes through a process that includes public input. This section needs to say this.
8) 2800.20 – Financial Mgmt – The regulations need to but do not currently prohibit the administrator or any employee of the facility from being required to be representative payee for Social Security payments.
9) 2800.22 – Application and Admission – The regulations would allow medical evaluations, needs assessments, and support plans to all be completed after admission – even after the contract is signed and the consumer has lived in the facility for weeks. These must all be completed prior to admission, except in the event of an urgent discharge to a facility from a hospital.
10) 2800.25 – Resident-Residence Contract. The contract must make reference to a core package of benefits that is included in the base price of admission. The core package of benefits must be uniform from facility to facility. This is not currently in the proposed regulations and must be added. See also, comments to 2800.220.
11) 2800.28 Refunds. The proposed regulations permit a facility to hold onto a resident’s money for 30 days after they move out. Many residents have limited funds to begin with and need that money in order to afford to move out. The final regulations must mandate that a resident is given back her money on the day she moves out, unless the facility did not have advance notice of the move, in which case the facility should have 7 days.
12) 2800.30. Informed consent. The informed consent process lacks protections so 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. No independent entity is designated to help consumers determine the merits of entering into an informed consent agreement.
RESIDENT RIGHTS
Section 2800.41 through 2800.44
13) We urge the addition of a section 2800.40 on Applicants rights so that applicants can know, across all facilities, what to expect in the application process. See our specific recommended language in our line by line comments.
14) 2800.41 Complaint procedures. There should be standardized procedures that all facilities should follow when they receive a complaint from a resident. This is absent from the proposed regulations.
15) 2800.42 – Specific Rights. The proposed regulations fall short in that they fail to include many fundamental consumer rights. Residents should have and be unequivocally aware that they have the right to:
a. Know all their rights and have them articulated fully in one discrete section.
b. To choose ADL and IADL providers, healthcare providers, and supplemental healthcare providers.
c. To use their health insurance to pay for covered services.
d. To lock their door.
e. To terminate their residency at any time
f. To terminate an informed consent agreement at any time
g. To privately communicate with friends, family and others
h. To reside and receive services all year without sudden disruptions for vacations or holidays.
i. To reasonable accommodations of resident needs and preferences.
j. To refuse treatments or services prescribed or recommended.
k. To self-administer medicine
l. To file complaints and grievances
m. To receive oral and written communications from the facility in a manner that is accessible
n. To have records kept confidentially.
o. To appeal decisions made by the facility
p. To continue to reside in the facility pending the outcome of the appeal.
And more…
16) We urge the addition of a section 2800.42a on Rights upon Transfer or Discharge and make specific recommendations as to these rights.
STAFFING
Section 2800.51 through 2800.69
17) 2800.51 – Criminal History Checks. All persons working for or under contract with the facility should have to go through criminal history checks and the criminal history checks should be ones that meet state constitutional standards. This is not currently in the regulations.
18) We urge the creation of a 2800.54a – Qualifications and training for ancillary staff, other staff or volunteers to address minimum training and qualifications for food service, housekeeping, administrative or supervisory staff, medical directors, service planners/care managers, and third party contractors. All supervisory staff should have at least the direct care staff training requirements.
19) 2800.57 – Direct Care Staffing - The proposed regulations label consumers as either “mobile” and “immobile” and key staff levels at 1 or 2 hours accordingly, regardless of actual resident needs. Staffing levels should allow for at least 2 hours per day per resident with actual care hours determined based on assessed needs of residents. The regulations do not do this.
20) 2800.60 – Additional staffing. The proposed regulations do not require that a facilities have a nurse on staff or under contract to participate in all initial or ongoing needs assessments.
21) 2800.63 – First Aid and CPR. The proposed regulations fail to require that all staff be trained in first aid and CPR. This is essential and must be remedied.
22) 2800.64 – Administrator training and orientation. Administrators should have 150 hours of training and this training should include training in numerous additional areas than are listed in the 100 hour personal care home administrator training, including how to care for residents with cognitive impairments, how to control infection, prevention of decubitus ulcers, malnutrition and dehydration, and hazard prevention. The regulations should also clearly state that the requirements must be met without grandfathering of any kind.
23) 2800.65 – Direct Care Staff person training and orientation. The proposed regulations would require no additional training for direct care workers in an assisted living facility than in a personal care home, despite the different needs of the populations intended to be served. The regulations include no minimum number of training hours. The final regulations must at least adopt the minimum 77 hour core competency training crafted by stakeholders for the Department of Labor and Industry. The regulations should also clearly state that the requirements must be met without grandfathering of any kind.
24) We urge the addition of a 2800.70 on Third Party Care Providers that states that all those employed by the facility must meet the direct care worker requirements of the regulations or their licensure requirements (if they are separately licensed in the state).
PHYSICAL SITE
Section 2800.81 through 2800.109
25) 2800.83 – Temperature. We would like to see a statement of the minimum and maximum temperatures the inside of the facility can be during the cold of winter and the heat of summer.
26) 2800.86 – We’d like to see the facilities use carbon monoxide detectors.
27) 2800.88 – Surfaces – We’d like to see that any asbestos on site that is found be appropriately remediated.
28) 2800.90 – Telephones – The facilities should have at least one phone on each floor and they must be accessible to all residents.
29) 2800.96 – First Aid Kit – It is not appropriate for the facility to have only one first aid kit for the whole facility. The requirement should be that the facility have enough first aid kits in accessible locations throughout the facility to ensure that the staff can swiftly administer first aid treatments.
30) 2800.98 – Indoor Activity Space – All indoor activity space needs to be accessible to all residents. All hallways and common areas must be accessible to wheelchair users.
31) 2800.101 – Living Units - The proposed regulations authorize grandfathering of bedrooms (and facilities with bedrooms that are only 175 sq feet. This is not accessible to a wheelchair, why should it be acceptable? We likewise do not believe that having a ceiling height at an average of 7 feet is accessible to chair lifts and other assistive devices nor is safe in the event of a fire. Ceiling height should be no less than 8 feet, throughout the 250 square feet of living space. If there is a dormer or other low ceiling area in a portion of the living unit that does not get counted towards the living space, that would be permissible.
32) 2800.105 – Laundry. Personal laundry must be cleaned at least once a week, unless more frequently due to care needs. Laundry must be a part of the core benefit package a consumer gets with their price of admission.
33) 2800.106 – Swimming pools. If a facility has a pool or swimming pond, it must be fenced in and their must be lifeguards on duty during any hours that residents are permitted to swim.
34) 2800.108 - Firearms are permitted, whereas the prior draft would have prohibited firearms in an ALR.
35) 2800.109. Facilities are not required to accept service animals.
FIRE SAFETY
Section 2800.121 through 2800.133
36) 2800.129 – Chimneys that are used must be regularly cleaned.
37) 2800.130 – Smoke Detectors need to be located throughout the facility and not just in living units.
RESIDENT HEALTH
Section 2800.141 through 2800.144
38) 2800.141 – Medical Evaluation – This must be done more frequently than annually. As a matter of course, these should be completed every 6 months, upon a change in condition, and 30 days after a discharge from a hospital.
39) 2800.142 – Assistance with health care and supplemental healthcare services – We find it unthinkable that the consumer could be made to forfeit choice of all doctors, specialists, psychiatrists, and supplemental healthcare providers by virtue of moving in to an assisted living facility. While this section attempts to guide the facility’s determination of who provides residents with care, it must more strongly prohibit facilities from interfering with access to providers whose services are paid for by Medicare, Medicaid, and private health and long term care insurance.
NUTRITION
Section 2800.161 through 2800.164
40) 2800.161 – Meal Planning. All meal planning should be done in consultation with a dietician and meal preparation should be done under the guidance of the same dietician.
TRANSPORTATION
Section 2800.171
41) An ALR must be required to transport or ensure transportation to medical and social appointments. If “coordinate” is meant to mean review and explain public transportation schedule that may get the consumer to the appointment or event but not necessarily at the appropriate time, which is not adequate to fulfill the obligation to ensure that consumers get transported to where they need to go. The ALR must ensure transportation and they must provide the transportation in a way that coordinates with the time the consumer needs to be at the place to which he/she is being transported.
MEDICATIONS
Section 2800.181 through 2800.191
42) We would like more details around how it is determined whether a resident is capable of self administering medications. We want to see a determination being made that the resident is able to use the medication as prescribed in the manner prescribed, for example, including but not limited to being capable of placing medication in own mouth and swallowing completely, applying topical medications and not disturbing the application site, properly placing drops in own eyes, correctly inhaling inhalants, and properly inhaling nasal therapies.
SAFE MANAGEMENT TECHNIQUES
Section 2800.201 through 2800.203
43) 2800.203 The proposed regulations do not use the bedrail provision from the PCH system and the Federal Government recommendations – what the proposed regulations have is less than PCHs and federal recommendations and needs to be revised.
SERVICES
Section 2900.220 through 2800.229
44) 2800.220 – Services – The regulations need to be clear 1) what are all the assisted living services that each facility must be equipped to provide and 2) what is the minimum core package of benefits that each consumer can expect to receive as part of their monthly fee. Each residence must provide a base core package of services that residents must purchase and can trust they will receive. We add several services to the list of “assisted living services” and we specifically recommend language for what should be contained in the base core package of services, allowing, of course, for facilities to provide enhanced packages or ala carte extra services on top of the base core package.
45) We urge the Department to add a section right after services that speak to marketing of assisted living.
46) 2800.225 – Assessments – Under the proposed regulations, assessments of individual resident needs are not required to be completed by the facility until after 15 days of residence. These are not required to be completed by a nurse, and are only required to be completed annually. It is imperative that these be completed prior to admission, by or with a nurse (at present the proposed regulations do not even demand that an assessor has to have any training in assessing care needs), and quarterly not annually as well as after a change in condition or hospitalization. The assessment section should also articulate areas the facility must be sure to identify
47) 2800.227 – Support Plans. Under the proposed regulations, support plans are not required to be completed by the facility until after 30 days of residence. These are only required to be completed annually or upon change in condition. It is imperative that these be completed prior to admission, by a nurse, and quarterly as well as after a change in condition or hospitalization.
48) 2800.228 – Discharge and Transfer. We have many concerns about the lack of protections for consumers in this section. There are no appeal rights and no appeal process. The ombudsmen are charged with doing a job they are not currently equipped or trained or funded to undertake. Many among us would also say that they are not authorized, under federal authorizing legislation, to take on the designed role. Consumers must be provided with a right to appeal, a process through which to challenged facility decisions, an ability to remain in the residence pending the outcome of an appeal, and faith in an independent panel to hear their appeals. Additionally, the grounds for discharge must be limited to those which are fair. We have provided specific language about these concerns.
49) 2800.229. There are still excludable conditions 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 to hospital and readmit when healed? A tenant would never be evicted from a rental apartment for having to go to a hospital for a couple weeks, especially if continuing to pay the rent.
SPECIAL CARE UNITS
Section 2800.231 through 2800.239
50) 2800.231 – Admission – We believe this section needs to be stronger to ensure that consumers are fairly treated in the discussion and decision about whether they move to a special care unit. We provide specific language to make sure that alternatives to moving are discussed and that appropriate family members and healthcare providers are involved in the discussion.
51) 2800.235 – Discharge – The section should not be different from the general section for resident discharge in 2800.228. This section would give consumers with cognitive impairments fewer protections than other consumers.
52) 2800.238 – Staffing – We do not think the state should continue to label consumers as mobile or immobile. We make specific staffing level recommendations in 2800.57 above and in our line-by-line recommendations. These should apply to consumers living in special care units as well.
RESIDENT RECORDS
Section 2800.251 through 2800.254
53) 2800.252 – Resident Record – The proposed regulations do not identify key items that should be retained in the resident’s record to track needs and progress.
ENFORCEMENT
Section 2800.261 through 2800.270
54) We urge the Department to include a section 2800.260 on “dual licensure” and provide recommendations for when and how a facility could be dually licensed as assisted living and something else.
55) 2800.261 and .262 – Critical steps need to be taken to improve these provisions on plans of correction and the Department’s expectations.
Unanswered Questions
56) No statement prohibiting grandfathering of staff or facilities.
57) No statements around how existing PCH becomes an ALR.
58) No statements around how the prohibiting on using the “AL” terms plays out – no marketing or other rules around implying that are AL or being an AL just calling self “senior living”.
59) No rules around dual licensure.
60) Nothing included to protect against deceptive marketing
61) Whether critical info will be tracked and published. No annual tracking or making public of reportable incidents or informed consent utilization