Comments Submitted by PALCA

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Below are the final comments PALCA submitted to the Department of Public Welfare and the Independent Regulatory Review Commission.  

September 10, 2008 

 

Gail Weidman

Department of Public Welfare

Office of Long-Term Care Living

P.O. Box 2675

Harrisburg, PA 17105 

 

Arthur Coccodrilli

Chair, Independent Regulatory Review Commission

333 Market St, 14th Floor

Harrisburg, PA 17101 

 

Dear Ms. Weidman and Chairman Coccodrilli: 

The Pennsylvania Assisted Living Consumer Alliance hereby submits comments to the Proposed Assisted Living Regulations - # 14-514.   PALCA is a coalition of organizations and Pennsylvanians that formed in January of 2008 to ensure that the concerns of consumers are heard in the formation of Assisted Living licensure rules for Pennsylvania.  Organizations participating in the Alliance include: 

Many of us have worked for years to see assisted living licensure come to pass.  We are excited to see that licensure for assisted living is finally happening.   We are excited because consumers need licensure for assisted living. 

We emphasize the importance of having good assisted living regulations.  Assisted living is a critical part of the continuum of long term care and is invaluable for rebalancing our long term care system towards providing care in more home-like settings than nursing facilities.     

Everyone who has ever had to look for care for a loved one, care that can no longer be provided at home, knows that this search is painful and difficult. There is a delicate balance between the most home-like environment possible, and the institutional supports that must be provided. Although it may appear contradictory, promoting independence, dignity, privacy, and choice requires Pennsylvania to set clear standards in order for those in need of assisted living to find it in our Commonwealth.

Our Alliance formed earlier this year to give voice to consumers, family members, and their advocates who are all seeking to ensure that assisted living facilities are equipped, enabled, and accountable for providing all their loved ones with quality care, provided by appropriate amounts of adequately trained staff in a home-like setting that is safe, accessible, and stimulating.

We have analyzed these regulations and many of us reviewed preliminary drafts, as we participated in the Assisted Living Workgroup of the Department of Public Welfare.  We applaud the many good things the Department did in the proposed assisted living regulations as these provide some hope of quality care.  However, the regulations do not go far enough towards the promise of quality care. 

The regulations for personal care homes served as the platform from which the state proposes to build assisted living licensure.  Several of the proposed requirements represent crucial enhancements to the personal care home regulatory requirements.  These are essential changes for meeting the care needs of the population that Assisted Living residences are intended to serve.  These are changes of which we are wholly supportive and we list all of these herein.  More provisions, however, were left exactly the same as in the personal care home system, even though changes are critical for ensuring that Assisted Living facilities are able to safely serve Pennsylvania’s assisted living consumers.   

While the personal care home regulations are the floor for the proposed regulations assisted living regulations, it is critical to remember that Assisted Living is a new licensure category and, thus, grandfathering of staff qualifications, physical site or other elements of the new regulations is not appropriate.  Historically, “grandfathering” has a limited use where an existing licensed system is facing a hardship by an updating of standards, as happened in 2005 with the Personal Care Home regulations.  This situation must be distinguished as the state is not updating an existing set of regulations but creating a new licensed entity to operate under a new regulatory system.  Grandfathering is not appropriate as a regulatory construct when creating a brand new licensed entity.  There is no hardship to the facility; it faces no harm by the new requirements as it can continue to operate exactly as it always has under the Personal Care Home licensure should it choose not to meet the new standards. 

While the proposed regulations make small steps in the right direction, we do not believe that the proposed regulations make adequate strides towards 1) meeting residents’ care needs, 2) guaranteeing that all consumers have meaningful rights of which they are aware and that they are free to exercise their rights, 3) assuring safe and accessible physical site, 4) ensuring care is provided by appropriate amounts of adequately trained staff, and 5) answering critical unanswered questions that the public needs answered.  We urge the Department to take additional steps towards ensuring that consumers can be safely, happily, and healthily served in Pennsylvania’s assisted living facilities.               

Our comments are broken down as follows:  First, we offer our overarching concerns we have about the proposed regulations.  We then outline the crucial improvements from what we have in the personal care home system, improvements which we feel must be retained in the final regulations.  Third, we list by section the outstanding problems with the regulations.  Finally, as an attachment, we offer line-by-line recommended edits to the entire set of proposed regulations to delineate how our comments could be implemented.   

I. Overarching concerns with the proposed regulations: 

A. 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 the rules provide for a short-form, pre-screening checklist to determine whether the consumer could be safely admitted to an ALR or if he has conditions or needs that would require exclusion from the facility, an ALR is only required to perform a comprehensive assessment “within 15 days” after admission to the facility.  In addition, the facility has until 30 days after admission to develop the resident’s actual care plan. The result is that consumers are put in the untenable position of having to move into a facility without knowing for certain if the ALR can meet their needs and if they will be able to remain in the facility.  With the possible exception of an immediate discharge to the Assisted Living facility from a hospital, an ALR should be required to perform a comprehensive assessment of a potential resident prior to admission in order to determine: whether she can live in the facility successfully; her care needs; whether her needs can be met in a way that comports with consumer choice around how and when to receive care; and the costs associated with meeting her care needs in that facility.  

As written, the proposed regulations provide no sufficiently clear statement as to the specific assisted living services a consumer should expect to receive from an ALR, nor do they articulate a minimum, core package of benefits   If consumers are not assured that every ALR must provide at least a uniform minimum core benefit package with the admission price, consumers cannot meaningfully compare and choose among facilities.  Without a minimum core benefit, consumers cannot understand the differences in costs/ extra services from one facility to the next or the value added if they purchase 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.   We are sure that the last thing the state wants to see is a consumer being forced to choose between three nutritious meals a day and having their care needs met in an ALR.

The proposed regulations give the facility total control over where residents get all medical care and supportive services. Consumers want to be able to choose and use their own trusted healthcare providers. The personal care home system recognizes this and allows consumers to use their own physicians and pharmacies.  The proposed ALR regulations, however, do not provide residents with any ability to choose and to use outside providers.  Instead, a facility can mandate that residents use providers of its choosing. This clearly flies in the face of consumer freedom of choice provisions found within Medicare, Medicaid and other insurance programs.  The vague regulatory language in the proposed rules that facilities not “unreasonably withhold approval of outside provider when consumers have insurance” does not fully redress this problem.    Protecting residents’ rights to choose and use their own providers provides a check and balance against poor care, conflicts of interest, and complete isolation within the facility.  It also allows consumers to use the marketplace to meet their medical needs when quality care is not provided in their supportive, apartment- like assisted living setting. 

The Informed Consent Process fails to adequately protect residents.  The proposed regulations create an informed consent system that does not include adequate protections for residents.  ALRS cannot be allowed to use the informed consent process on a regular basis as a means to get around their responsibility to provide good care and/or their liability when such care is not provided.  Residents who are at the mercy of those who are caring for them must be assured they will not be forced to hastily release the facility from its responsibilities when that may not be in the resident’s best interests. There must be an independent entity designated to help consumers determine and understand the merits and consequences of entering into an informed consent agreement.  Ombudsmen are inappropriate to serve in this role.

Consumers are disadvantaged where 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 consumers aging in place, yet at the same they set out a blanket list of excludable conditions that, if present, would warrant a facility to discharge the consumer without exception.  The excludable conditions provisions in the proposed regulations draw black and white lines in areas where there are clearly shades of gray.  For example, why should a resident be DISCHARGED for developing stage 3 or 4 decubitus ulcer?  Why not transfer the resident to a hospital and readmit when she has healed if that is what the consumer wants?  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 allow for exceptions and for fair and reasonable considerations so as to protect residents’ ability to remain in the place the resident has come to call home. Additionally, there is a process for facilities to seek exceptions to the excludable conditions prohibitions.  There is no mechanism for insuring that these exceptions are fairly sought and that facilities do not discriminate against two similar residents based on payment source or history of complaints against the facility, etc. 

B. 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 ALR applicants have enumerated rights and that the rights of applicants and residents are all set out in a regulatory section on rights.  The proposed regulations simply provide ALR residents the same rights provided personal care home residents, despite the differences in the facilities and the greater frailty and dependence of the population being served in ALRs.  Additionally, the “rights” section is what residents are provided as their list of “rights”.  It is also what is posted in the facility as the residents’ rights.  Yet, the residents’ rights section of the proposed regulations does not articulate a consolidated statement of all the rights the resident has.  For example, the resident’s rights to view their own records or to be notified of egregious incidents or serious regulatory violations within the ALR are embedded elsewhere in the regulations.  Because these rights do not appear in the official statement of “rights” however, most consumers are unaware of these other rights and how to exercise them.  All residents’ rights must be contained in a distinct rights section of the regulations to which consumers and their families can turn to understand how or whether they are protected.  Residents must also be provided additional rights and protections beyond what are already set out in the personal care home regulations.

The proposed regulations set forth no ALR applicant rights. This must be addressed to assure applicants such important rights as the right to a written decision regarding their application, the right to reasons/the basis of the decision if their application is denied, and the right to receive a list of facility services and costs upon request and prior to signing an admission agreement. 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 state licensing decision or a penalty imposed, the proposed regulations give the resident no ability to challenge the facility’s unilateral determination that her needs can no longer be met and that she must be discharged.  The resident is provided 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 their appeal.  These must be provided to residents.    

C. 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 current standards or practices for fire safety or even for wheelchair accessibility.  The regulations do not address the issues of older construction that do not meet current fire or life safety or facilities that were grandfathered years back and never had to come up to current standards for safety and accessibility.  The purposed of assisted living licensure is to create facilities to care for people who need long-term care and the ability to aging in place.  Such facilities need to be accessible to persons with physical disabilities.  No one has a right to operate an assisted living facility.  Existing personal care homes can continue to operate as personal care homes if they cannot be brought up to current safety standards.  Similarly, these facilities 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. We urge that the existing construction provision be removed because 175 square feet is too small to be accessible for anyone using a walker or a wheelchair. 

D. The proposed regulations do not ensure that care is provided by sufficient numbers of adequately trained staff. 

As written, the proposed regulations rely on the archaic labeling of residents as “mobile” and “immobile” and rely solely on those labels to determine whether the resident needs 1 versus 2 hours of direct care. This formula in turn defines how many staff an ALR must employ to care for residents. Instead, the regulations should establish a floor of at least 2 hours of care per resident per day with the actual care hours determined based on the assessed needs of each resident.  

The proposed ALR regulations simply adopt the direct care staff qualifications and training required of personal care home staff despite the differences in the facilities and the greater care needs often found in ALR residents.   As proposed, direct care staff would not have to complete a minimum amount of training hours and not all direct care staff must be trained in first aid and CPR.   No minimum training or qualifications are articulated for third party contractors serving as direct care staff and there are no requirements that all supervisory staff meet 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.  Finally, the regulations contain no affirmative statement ensuring that training requirements will not be waived.   

E. 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 from an ALR.   

The regulations fail to address marketing or set forth any parameters on how facilities can market or present themselves as “assisted living residences”.  We understand from state officials that they anticipate facilities having an ALR license but also having at least part of the facility licensed as a personal care home or a skilled nursing facility. Yet the regulations do not address this issue at all. The regulations do not set out any parameters nor do they address the requirements that would have to be met in order for a dual licensure to be allowed.  The regulations also fail to define key terms and take no steps towards improving upon the inadequate enforcement provisions inherited from the personal care home regulatory system.     

I. The proposed regulations contain some crucial improvements over the personal care home system.  These provisions must, at a minimum, be retained.   

It is crucial that the Assisted Living regulations go beyond the regulations for personal care homes.  There are a number of provisions of the proposed regulations that are clear improvements upon the regulations for personal care homes.    These provisions must be included in the final regulations and serve as a minimum for what the regulations include.  Specifically, the proposed regulations:

1) Establish licensure fees that are meaningful and potentially sufficient to fund the licensure, oversight and relocation efforts of the Department, as required by Act 56.  2800.11 

2) Require fire safety approval to be renewed every 3 years (in the past approval was at the outset and was never required to be renewed).  2800.14 

3) Exclude many regulatory provisions from the list of provisions for which a facility could seek a waiver (so that they not have to comply.)   2800.19. 

4) Add a few critical pre-admission disclosures that facilities will have to make to potential residents.  2800.22(b). 

5) Standardize that the resident-residence contracts should all run month to month with 14 day advance notice by the resident required for termination.   2800.25(b) 

6) Add a requirement that the person who manages and controls the operations of the facility have prior experience in the health or human services field.    2800.53 

7) Require the facility to, at all times, be under the supervision of a person who is trained in how to operate and manage the facility.  This is a substantial improvement over the personal care home system where the only person with training and knowledge in how to manage, operate, and supervise need only be present in the facility 20 of the 168 hours in a week.   2800.56  

8) Require a nurse to be on call 24 hours a day and a dietician to be involved in meal planning for residents’ whose support plans call for special diets.  2800.60 

9) Call for Air Conditioning for the entire facility, contrary to personal care homes which have never been required to have air conditioning, despite the care needs or health conditions of their residents.   2800.83 

10) Require all stairs and steps to have strips to help ensure evacuation for those with vision impairments.  2800.94 

11) Require newly constructed facilities to have larger rooms than in personal care homes, with 250 square feet of living space (this is only for new construction). 2800.101 

12) Require living units to have kitchenettes with counter space, cabinet, microwave, fridge, and access to a sink.  2800.101 

13) Require facilities to disclose their policies about pets and whether pets are already in the facility.  2800.109 

14) Require smoke detectors in each living unit. 2800.129 

15) Require access to all exits required to be marked with readily visible signs indicating the direction to travel.  2800.133 

16) Prohibit unreasonable withholding of provider’s approval of resident’s choice of healthcare provider where resident has insurance.  We wholly oppose limits on resident choice of provider.  And, this does not exist in the personal care home system.  We are only minimally comforted by the idea that, and include this in the list of positive attributes of the proposed regulations only because, a facility cannot unreasonably limit resident choice where health insurance or long term care insurance may pay only for specific providers.  Please note, however, unreasonable withholding is not defined and there are no appeals processes or rights for consumers to challenge such determinations made by a provider.  2800.142 

17) Require assistance with meals and cueing for meals for residents who require this in order to make it to or through a meal.  2800.162. 

18) Require vehicles for transportation to be accessible to residents with wheelchairs and other devices.  2800.171 

19) Require facilities to provide medication administration.  2800.182 

20) Require facilities to obtain medications prescribed for resident and to maintain an adequate amount of the residents’ medications on site.  2800.185 

21) Require all residences to provide cognitive support services.  2800.119 

22) Require a written decision if residency is denied with an explanation of why.  2800.224  

23) Requires a nurse to review and approve the support plan, whereas in the current system, there are neither qualifications nor specific training requirements for the individual who conducts assessments or trainings.  2800.227 

24) Mandate that a facility must ensure that residents that are discharged have a safe and orderly discharge and that the resident’s medications, durable medical equipment, and personal belongings go with the resident.  2800.228 

25) Improve upon the termination notice that consumers must receive, providing them more information on why they are being discharged and what limited steps they may take about the discharge.  2800.228 

26) Require tracking of admissions and discharges and transfers by the facility – including those involving excludable conditions.  2800.228 and 2800.229.  

27) Adopted a good standard for when an exception to the excludable conditions prohibitions would/should be granted.  2800.229.  
 

III. Specific Problems with the Proposed AL Regulations Published on 8/9/08 for Public Comment by 9/15/08, provided by section number: 

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 elsewhere linked in the regulations to whether a resident is mobile or has mobility needs 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 facility from requiring that the administrator or any employee of the facility serve as any residents’ 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  2

5) 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 recommend that facilities be required to use carbon monoxide detectors. 27) 2800.88 – Surfaces – We recommend 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 each 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.  With regard to shared rooms, it is not appropriate to require roommates to share dresser drawers, lamps, and night tables.  This is supposed to be a home-like setting where one resident can continue to read despite their roommate having chosen to go to sleep.  Residents need privacy and autonomy and the dignity of their own storage space.  Not even a college student is required to share dresser drawers with a roommate.   

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 which provide critical support to persons with various disabilities.   

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 we understand the facility should be able to have minimum expectations of any outside provider (such as: licensed, insured, willing to follow facility’s operating rules/procedures), this goes far too far!  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; the section must address such things like how facilities present the ability to age in place, to continue residence even when care needs change or money runs out. 

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.  And yet, the regulations require a discharge in the event of stage 3 or 4 decubitus ulcers, unless the facility opts to request an exception from the state in order to retain the resident.

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. 

 IV. Recommended Line-By-Line Changes to the Proposed Regulations: 

Please see Attachment A for our “track changes” edited version of the proposed regulations.  We provide these line-by-line recommended changes along with margin comments, throughout, explaining the importance of making the recommended changes.              

We thank you for the opportunity to provide input into the inception of assisted living in Pennsylvania.  Please call Alissa Halperin (215)435-3257 or e-mail her at This e-mail address is being protected from spambots. You need JavaScript enabled to view it should you have any questions or need additional information.  

Sincerely,  

The Pennsylvania Assisted Living Consumer Alliance