On Aug. 9, 2008, the Pennsylvania Department of Public Welfare (“DPW”) published its proposed regulations for assisted living facilities operating within the Commonwealth. (Pennsylvania Bulletin, Vol. 38, No. 32, Aug. 9, 2008.) The proposed regulations were drafted in response to the Pennsylvania General Assembly’s enactment of Act 56 on July 25, 2007. Act 56 amended the statute regulating and licensing personal care homes by creating, defining, and providing for the regulation of a new form of facility to provide long-term care services within the state: the assisted living facility.
The development of the assisted living facility is a significant change in the current continuum of care and should be of interest to all owners, developers, and administrators of personal care homes and nursing homes operating within the Commonwealth. By obtaining licensure for assisted living, both nursing homes and personal care homes will have the ability to attract a greater range of individuals who wish to remain in a single facility and avoid undergoing transfers when their conditions improve or worsen. The change is also relevant to continuing care retirement communities (“CCRC”) that wish to provide, and advertise that they provide, the full continuum of care. Furthermore, the change is relevant to hospitals because assisted living facilities may provide a new option for discharging patients who need a higher level of residential care, but who do not require around-the-clock skilled nursing care. Of course, the alternative of assisted living is significant to patients and prospective patients who may require residential care. Parties interested in submitting comments, questions, and suggestions to the DPW must do so by Sept. 15, 2008.
As noted above, the newly enacted legislation and its implementing regulations represent a significant change in the Commonwealth with regard to the provision of long-term care services. The central focus of the Act is the concept of “aging in place,” which is defined as the receipt of “care and services at a licensed assisted living residence to accommodate changing needs and preferences in order to remain in the assisted living residence.” Under the Act, the assisted living facility is defined as “any premises in which food, shelter, personal care, assistance or supervision and supplemental health care services are provided for a period exceeding twenty-four hours for four or more adults.” Thus, an assisted living facility essentially functions as a natural extension of the personal care home setting, and thereby allows an individual to remain in one place while receiving a heightened level of service and care as physical needs increase.
II. WHERE ASSISTED LIVING FITS IN PENNSYLVANIA’S LONG-TERM CARE CONTINUUM
A. Assisted Living Facilities and Personal Care Homes
Until the enactment of Act 56, the terms “personal care home” and “assisted living facility” were often used interchangeably to describe personal care homes in Pennsylvania. This new legislation provides a clear distinction between the services provides at each type of facility, as well as between each type of facility’s physical environment. Personal care homes are limited to providing food, shelter and personal care assistance with general activities of daily living, such as bathing, grooming and meal preparation. By comparison, the Act authorizes an assisted living facility to provide food, shelter, and personal care assistance, as well as supplemental health care services.
Supplemental health care services may include any type of health care service not required by law to be provided by a hospital, a home health care agency, a home care agency, a hospice, or a long-term care nursing facility, and may be provided either directly by appropriate assisted living facility personnel, or through contractors, subcontractors, agents or designated providers of the facility. An assisted living facility’s provision of supplemental health care services facilitates the concept of “aging in place,” by allowing residents to remain in a single facility as their health needs increase. The ability of a facility to maintain dual licensure as both an assisted living facility and a personal care home (as described below) further expands a resident’s ability to “age in place.”
The provision of supplemental health care services at an assisted living facility is a significant change not only for residents, but also for facility operators. Essentially, the Act superimposes a medical management model onto what has previously been a home care model. In furtherance of this shift, the Act imposes specific requirements with respect to the size and occupancy of rooms, staffing ratios, education and training of staff, the establishment of designations for special care and cognitive support, creation of standards for resident consent agreements, and the establishment of standards for resident transfer and discharge.
B. Assisted Living Facilities and Nursing Homes
In Pennsylvania, nursing homes, referred to in legislation as long-term care nursing facilities, are governed by the Health Care Facilities Act,and are licensed by the Pennsylvania Department of Health (“DOH”). A nursing home is defined as any facility providing any skilled and/or intermediate nursing care to two or more patients for a period exceeding 24 hours. Intermediate care facilities that exclusively serve the developmentally delayed are not considered long-term care nursing facilities, and are licensed by DPW rather than DOH. DOH conducts annual surveys of nursing home facilities to ensure that they are in compliance with standards for safety and quality care.
Traditionally, nursing homes in Pennsylvania have been the last stop in the continuum of non-acute care. When a personal care home resident required more than the custodial care offered in the personal care home setting, transfer to a nursing home often became necessary in order for the resident to receive needed skilled nursing care, defined as the provision of medical services around the clock. For example, a personal-care-home resident who requires daily insulin shots and blood glucose monitoring would qualify for transfer to a nursing home, and prior to the enactment of Act 56, nursing homes were the only residential provider permitted to directly offer this type of skilled nursing care to the resident. However, as a result of Act 56, assisted living facilities are designed to allow for “aging in place,” thereby eliminating the need to immediately transfer individuals to nursing homes once nursing care is required. An assisted living facility is able to provide the less expensive custodial care of a personal care home, and also the more expensive skilled nursing care of a nursing home.
C. Assisted Living Facilities and CCRCs
Unlike nursing homes, personal care homes, and assisted living facilities, CCRCs must also obtain licensure through the Pennsylvania Department of Insurance under the Continuing Care Provider Registration and Disclosure Act. Under the Act, continuing care is defined as the furnishing of room and board as well as nursing services, medical services, and/or other health services, pursuant to an agreement effective for the life of the individual and in consideration of the payment of an entrance fee with or without other periodic charges. The health services may be provided outside the CCRC or through a separate entity. CCRCs providing custodial care are also licensed by DPW as a personal care home, and those providing skilled nursing care are licensed through DOH. A CCRC that wishes to provide an assisted living alternative to its residents may also become licensed as an assisted living facility through DPW.
III. THE PROPOSED REGULATIONS
As referenced above, DPW is responsible for implementing the necessary rules to regulate the new assisted living facilities. The proposed effective date for the regulations is July 1, 2009. However, DPW has invited interested persons to submit written comments and suggestions in response to the proposed rulemaking. All comments must be submitted by Sept. 15, 2008. Please note that DPW revised the due date for submissions that appeared in the original version of the proposed rulemaking published Aug. 9, 2008. Below is an overview of the proposed rulemaking, which highlights the major changes that will occur with this new type of long-term care facility.
A. Licensure and Inspection
As with personal care homes, assisted living facilities will be licensed by DPW. Facilities that are not licensed as assisted living facilities by DPW can no longer use the term “assisted living” in any name or written materials. To obtain a license, a facility must undergo an inspection by DPW and be found in compliance with all laws and regulations applicable to assisted living facilities. Under the new regulations, DPW will re-inspect all new facilities within three months of issuance of a license to ensure compliance. DPW will also conduct at least one unannounced onsite visit for inspection purposes per year, and, as necessary, may conduct additional inspections of an assisted living facility. In contrast to the existing rules for both personal care homes and nursing homes, the proposed regulations grant DPW the authority to conduct abbreviated inspections of assisted living facilities with an established history of exemplary compliance.
DPW may revoke, temporarily revoke, or refuse to renew a facility’s license because of violations discovered through inspection. Violations of the regulations will be classified into the following categories:
Class I – A violation that indicates a substantial probability that death or serious mental or physical harm to any resident may result.
Class II – A violation that has a substantial adverse effect upon the health, safety or well-being of any resident.
Class III – A minor violation that has an adverse effect upon the health, safety or well-being of any resident.
DPW will temporarily revoke the license of an assisted living facility if one or more Class I violations remain uncorrected for a period of 24 hours or more after citation, without good cause, or if one or more Class II violations remain uncorrected for a period of 15 days or more after citation, without good cause. If, during any two-year period, and on two or more separate occasions without good cause, the assisted living facility has been cited for Class I violations, DPW will revoke or refuse to renew the facility’s license. If the DPW does not reissue a license within three months of revocation, the license is deemed automatically revoked for at least five years. A provider of an assisted living facility with a revoked or non-renewed license may not operate, staff, or hold an interest in another assisted living facility or personal care home for at least five years. The DPW is also granted the authority to assess monetary penalties on facilities with violations, and to impose a ban on new admissions to the facility.
B. Reimbursement Issues
Consisted with the current rules for personal care homes, the proposed regulations for assisted living facilities require the facilities to accept Supplemental Security Income (“SSI”) benefits for qualified indigent residents. The actual rent charged by the assisted living facility may not exceed the resident’s actual current monthly income, reduced by an amount to be set by the DPW for the residents’ allowances. Additionally, an assisted living facility is prohibited from seeking any additional reimbursement from a resident receiving SSI.
Furthermore, an assisted living facility is prohibited from receiving an assignment of assets of a resident in return for a care contract or guarantee. However, CCRCs that have provided the DPW with a Certificate of Authority from the Insurance Department to operate a CCRC are exempt from this prohibition.
Since assisted living facilities will be reimbursed through a similar mechanism as personal care homes, yet are licensed to provide their residents a broader scope and quantity of services, the reimbursement scheme contemplated by Act 56 may not adequately address such facilities’ financial needs. To this end, the drafters of the Act contemplate that DPW will apply for a waiver from the federal government to support Medicaid recipients who wish to live in assisted living residences. The waiver will provide funding for residents who are Medicaid eligible. The Act provides for a report by the Legislative Budget and Finance Committee to the General Assembly regarding existing funding initiatives in the federal government, as well as a study of the initiatives in other states. After the report is developed, a joint legislative task force is required to create a proposal for a funding mechanism for Pennsylvania assisted living facilities. Under the terms of the Act, the proposal is due to the Legislative Budget and Finance Committee by Fall 2008.
C. The Relationship between the Facility and Resident
Prior to admission, an assisted living facility must complete and document certain required procedures, including preadmission screening, medical evaluations, and resident assessments for each prospective resident. The preadmission screening is intended to determine whether an individual’s needs can be adequately met by the facility. If an individual’s need cannot be met, the facility is required to issue a written denial that includes a referral to a local assessment agency for more appropriate placement.
Additionally, the facility is required to develop and implement a support plan for each resident within 30 days of admission. A support plan is an assisted-living-facility-specific document that details the care, service, and/or treatment needs for each resident based on an individual assessment of the resident. The plan must state by whom and when the necessary care will be provided. Each plan must cover the dietary, medical, dental, vision, hearing, and/or mental health services that will be provided to the resident.
Furthermore, a facility is obligated to have in place a resident-residence contract prior to, or within 24 hours of, admission. At a minimum, the contract must provide for a personal needs allowance for the resident, a fee schedule for the core services received by the resident, an explanation of the support plan and what will happen if the resident’s need change, the name of the party responsible for payment, any financial arrangements if the facility is to provide financial management, the rules of the residence, and the conditions under which the contract may be terminated or modified. The contract must also list the services to be provided to the resident based on the support plan.
Under the proposed regulations, an assisted living facility is required to have an informed consent process. The informed consent process is a new mandate that does not apply to either personal care homes or to nursing homes. This process could be used by either the resident or the residence to determine the amount of independence a resident should be given in directing his own care. A facility may initiate the process when the decisions or behaviors of a resident place the resident, staff, or other residents in danger of substantial harm. Residents may initiate the process when they wish to modify their support plans in order to gain more independence in directing their own care. Once initiated, a meeting between the facility and the resident (and representatives of the resident, if requested or if necessary) must be scheduled. If the parties agree during an informed consent meeting, the informed consent agreement must be written and signed by all parties.
Each assisted living facility must have a formal complaint procedure that allows both residents and other sources to lodge complaints with the facility. (Residents must also be apprised of their right to lodge complaints with the Office of Assisted Living Residence, local ombudsman, or local protective services.) After a complaint is made, the facility must investigate and timely resolve it. A status report must be provided to the complainant within two business days, and a written decision regarding the resolution of the complaint within seven days.
The services provided by assisted living facilities blend the functions of personal care homes and nursing homes. An assisted living facility is required to provide core services to residents, but, as referenced above, may have supplemental services provided through other agencies or individuals. Core services include meals, laundry services, daily social activities, assistance with the activities of daily living as provided in the resident’s support plan, assistance with medication, household services, and transportation. Supplemental services must be provided by the facility or the facility must make arrangements for these services to be provided by other agencies or individuals. Supplemental services may include, but are not limited to, skilled nursing services, physical therapy, hospice services, occupational therapy, behavior health services, and home health services.
An assisted living facility may provide a special care unit for individuals suffering from Alzheimer’s disease or other dementia. The unit is required to provide specialized care for these residents in the least restrictive manner consistent with each resident’s support plan. An assisted living facility must provide cognitive support services to residents who require such services, whether in a special care unit or elsewhere in the facility.
E. Staff and Facilities
Unlike the rules for personal care homes, and even for nursing homes, the proposed regulations for assisted living facilities set forth the specific training, education, and working policies for caregivers. For example, the regulations provide for certain hours of continuing education classes, which must be approved by DPW, to be completed by caregivers and administrators of the facilities.
The regulations also set forth detailed facility specifications, including room size, room temperature, lighting, recreational space, and kitchen capacity. In general, new facilities must abide by the exact requirements of the proposed regulations. Existing facilities may not have to provide every facility specification. However, an existing residence may be required to modify its facilities to meet a minimum standard set forth by the regulations. For instance, new facilities must provide living units that have at least 250 square feet of floor space, excluding bathrooms and closets. In contrast, existing facilities must provide living units with at least 175 square feet of floor space, excluding bathrooms and closets.
Act 56 and the proposed regulations for assisted living facilities represent a significant change in the manner in which the Commonwealth views the continuum of care for seniors and individuals with chronic disabilities. The establishment of assisted living facilities within Pennsylvania will provide residents in need of health care and personal services with an alternative to nursing homes, and with the ability to exercise independence and age in place.
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Please contact Karl A. Thallner (215.851.8171, [email protected]), Jacqueline B. Penrod (215.851.8275, [email protected]), Amie E. Schaadt (215.851.8106, [email protected]), or Brad M. Rostolsky (215.851.8195, [email protected]), or any other member of the Reed Smith Life Sciences Health Industry Group with whom you work, if you would like additional information or if you have any questions.