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RULES AND REGULATIONS

Title 55—PUBLIC WELFARE

DEPARTMENT OF PUBLIC WELFARE

[ 55 PA. CODE CH. 2800 ]

Assisted Living Residences

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

 The Department of Public Welfare (Department) adopts Chapter 2800 (relating to assisted living residences) to read as set forth in Annex A under the authority of sections 211, 213 and Article X of the Public Welfare Code (code) (62 P. S. §§ 211 and 213 and 1001—1087). Notice of proposed rulemaking was published at 38 Pa.B. 4459 (August 9, 2008).

Purpose of the Final-Form Rulemaking

 The purpose of this final-form rulemaking is to fulfill the statutory requirement in the act of July 25, 2007 (P. L. 402, No. 56) (Act 56) that requires the Department to adopt regulations establishing minimum standards for building, equipment, operation, care, program and services, staffing qualifications and training, and for the issuance of licenses for assisted living residences (ALR) operated in this Commonwealth. See section 1021(a)(2)(i) of the code (62 P. S. § 1021(a)(2)(i)).

Background

 Prior to Act 56, there was not a legal definition of ''assisted living residence'' in this Commonwealth. Act 56 directed the Department to adopt regulations establishing the minimum licensing standards for ALRs which ''meet or exceed'' standards established for personal care homes (PCH) under Chapter 2600 (relating to personal care homes). See section 1021(a)(2)(i) of the code.

 Act 56 was intended to recognize that ALRs are a significant long-term care alternative Nationwide. ALRs are a combination of housing and supportive services, as needed. They are widely accepted by the general public because they allow people to age in place, maintain their independence and exercise decision making and personal choice. In enacting Act 56, the General Assembly found that it is in the best interests of the residents of this Commonwealth that a system of licensure and regulation be established for ALRs to ensure accountability and a balance of availability between institutional and home-based and community-based long-term care for adults who need this type of care. See Act 56, Legislative Findings and Declarations.

 Act 56 further directed the Department to develop regulations for ALRs in consultation with industry stakeholders, consumers and other interested parties. See section 1021(d) of the code. As described more fully in the preamble to the proposed rulemaking, the Department convened a group of industry stakeholders, consumers and other interested parties and held numerous meetings over a period of many months to carefully consider the viewpoints of the groups and individuals that have a stake in this new licensure program. See 38 Pa.B. 4459. Following the notice of proposed rulemaking, the Department continued to consult with industry stakeholders, consumers and other interested parties which culminated in issuance of a draft final-form regulation on June 24, 2009. The purpose of the release of the draft final-form regulation was to solicit additional input as recommended by the Independent Regulatory Review Commission (IRRC) and commentators.

Affected Individuals and Organizations

 Individuals who choose to live in ALRs are affected by this final-form rulemaking. ALR providers are also affected.

Accomplishments and Benefits

 This final-form rulemaking establishes the minimum standards for licensure of ALRs to allow individuals to age in place. This final-form rulemaking protects consumers' health and safety, privacy and autonomy, while at the same time balancing industry stakeholders' concerns related to costs, liability and individual choice.

Fiscal Impact

 The Department estimates a net administrative cost to implement this change at $0.437 million State funds in Fiscal Year (FY) 2010-2011. In the out years, costs will be covered by fee revenues.

 Costs are expected to be incurred by the regulated community beginning in FY 2010-2011 ranging from $0.006 million to $0.403 million per ALR based on a 75-bed ALR. At a minimum, ALRs would be required to pay a licensure fee amounting to the $0.006 million on average. This cost assumes a flat application or renewal fee of $300 per home, an additional fee of $75 per bed and for those facilities granted a special care designation, a third fee of $150. It is assumed these fees will remain constant in the subsequent years. Additional costs may be incurred, which when added to the licensing fee brings the total potential cost up to the maximum estimated average cost of $0.403 million in the first year. These costs may or may not be incurred depending upon each facility's current status in relation to potential new costs imposed by the regulation. The majority of the costs relate to additional personnel expense in administering medication, enhanced reporting and additional administrative costs for resident care. It is assumed that those facilities that choose to apply for ALR licensure will already comply with the facility structural requirements of the proposed rulemaking, so no costs are assumed for structural modifications. It is assumed that 50 ALRs will incur these costs in FY 2010-2011.

Paperwork Requirements

 The final-form rulemaking does require some additional paperwork by the Commonwealth and ALRs. However, there is no reasonable alternative to the increased paperwork.

 Required forms will be developed by the Department in cooperation with the ALRs and will be shared in draft form with external stakeholders for review and comment prior to implementation. With respect to the initial assessment form and the preliminary and final support plans (§§ 2800.224, 2800.225 and 2800.227 (relating to initial assessment and preliminary support plan; additional assessments; and development of the final support plan)), the ALR may use its own forms as long as all the required information in the Department's standard forms is included. The Department will also work with stakeholders to develop sample policies and procedures to assist ALRs to comply with the final-form rulemaking. ALRs are also required to develop a residence handbook which is to be approved by the Department.

Public Comment

 Written comments, suggestions and objections regarding the proposed rulemaking were requested within a 30-day comment period following publication of the proposed rulemaking. The Department received 222 public comment letters as well as comments from legislators and IRRC. The Department also testified at a public hearing on September 18, 2008, convened by the House Aging and Older Adult Services Committee regarding the proposed rulemaking. In addition, the Department held individual meetings with industry stakeholders, consumers and other interested parties following the proposed rulemaking. Finally, as previously mentioned, in response to a recommendation of IRRC, the Department issued a draft final-form regulation on June 24, 2009, to solicit further comment. IRRC posted this draft regulation on its web site at http://www.irrc.state.pa.us/Regulations/RegInfo. cfm?IRRCNo=2712. The Department received 79 additional comment letters in response to this draft final-form regulation.

 The Department received comments from every sector of the community that will be affected by the final-form rulemaking including industry stakeholders, consumers and other interested parties, IRRC and the majority and minority chairpersons and members of the House Aging and Older Adult Services Committee and the Senate Public Health and Welfare Committee.

 The Department has continued to consult with and meet with industry stakeholders, consumers and interested parties to help ensure that this final-form rulemaking will achieve a balance between the competing interests of all parties in the regulatory review process. The Department carefully considered the comments it received in response to the proposed rulemaking and the draft final-form rulemaking. The Department would like to thank the many industry stakeholders, consumers and other interested parties for their expertise and consultation in the development of this final-form rulemaking. The Department appreciates the many thoughtful comments submitted. Many of the suggestions and recommendations made by commentators have been incorporated into this final-form rulemaking.

Discussion of Comments and Major Changes

 The Department finds that IRRC summarized the major comments noted by commentators. As a result, the Department will use IRRC's comments as a ''blueprint'' for discussion of the major comments received. The Department has filed a separate comment and response document, which includes the comments received, with IRRC, the legislative committees, the Legislative Reference Bureau and commentators along with this final-form rulemaking. This preamble also includes responses to the major comments received as a result of the release of the draft final-form regulation on June 24, 2009.

Legislative comments

 IRRC recommended that the Department carefully consider the comments from legislators.

Response

 The Department agrees with this recommendation and appreciates the high level of interest that this final-form rulemaking has generated from the General Assembly, IRRC and the public. Many of the concerns expressed by members of the General Assembly were echoed in the public comment letters as well as in IRRC's comments and are included in this preamble and are reflected in the comment and response document which has been filed separately along with this final-form rulemaking.

General—A. Distinction between ALRs and PCHs

 IRRC posed several questions regarding the implementation of Act 56 through the proposed rulemaking. IRRC stated that it would review the Department's response to its questions as part of its determination of whether the final-form rulemaking is in the public interest. IRRC requested the Department explain the difference between an ALR and a PCH.

 IRRC specifically asked for an explanation of the statutory language in Act 56 that allows PCHs to ''assist residents in obtaining health care services'' versus the requirement that ALRs be ''required to provide supplemental health care services.'' It also asked ''If a PCH offers many of the same services as an ALR, what will stop consumers from contracting with PCHs when there is no statutory protection for 'supplemental health care services' or 'aging in place' at a PCH?'' IRRC also inquired about the implications of the differences between an ALR and a PCH, including how these differences will affect residents and licensees in the future.

 Finally, IRRC inquired about the fact that the current statutory provision for Act 56 regarding special care designation does not reference the existing PCH regulations in §§ 2600.231—2600.239 (relating to secured dementia care units). IRRC commented that the definition of ''special care designation'' in Act 56 only refers to ALRs.

Response

 The Department submits that this final-form rulemaking is in the public interest for a number of reasons. Implementation of Act 56 through this final-form rulemaking provides another choice for consumers who are searching for a residential care option to meet the rising demand for this Commonwealth's rapidly growing population of older adults as well as individuals with disabilities who wish to have another alternative to nursing facility care or a PCH. Assisted living is a new model of care for this Commonwealth in three basic ways: 1) the concept of aging in place; 2) the types of care offered to consumers; and 3) the design and construction of the facility. While there are similarities between ALRs and PCHs, there are also distinctions between the two types of licensure categories. As the following more fully describes, there are clear differences between PCHs and ALRs regarding the kinds of service offered to the residents, the physical site requirements for individual living units and the conditions for licensure. In addition, assisted living offers an opportunity for the Commonwealth to seek Medicaid waiver funding.

 As the Department noted in the preamble to the PCH final-form rulemaking ''. . . the demand for residential care options is increasing.'' See 35 Pa.B. 2499 (April 23, 2005). For consumers, an ALR is another choice in the array of long-term care alternatives in this Commonwealth. This final-form rulemaking accords with the legislative intent behind Act 56 to ''allow people to age in place, maintain their independence and exercise decision making and personal choice.'' (Act 56, Legislative Findings and Declarations.) Implementing the final-form rulemaking will fulfill the legislative intent to provide a ''significant long-term care alternative'' to residents of this Commonwealth and to ''ensure a balance of availability between institutional and home-based and community-based long-term care for adults who need such care.'' (Act 56, Legislative Findings and Declarations (1) and (3).)

 To address IRRC's specific concerns regarding the provision of supplemental health care services in an ALR, Act 56 defines an ''ALR'' 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 who are not relatives of the operator and who require assistance or supervision in such matters as dressing, bathing, diet, financial management, evacuation from the residence in the event of an emergency or medication prescribed for self-administration.

Section 1001 of the code (62 P. S. § 1001). (Emphasis added.)

 The definition of a PCH, while similar to the definition of an ALR, does not contain the key phrase ''supplemental health care services are provided.'' Hence, a distinction between an ALR and a PCH is that an ALR is required by law to provide ''supplemental health care services,'' whereas under Act 56 a PCH may not provide supplemental health care services, but, instead, may assist residents in obtaining health care services in the manner provided by §§ 2600.29, 2600.142 and 2600.181—2600.191 (relating to hospice care and services; assistance with health care; and medications). See section 1057.3(a)(13) of the code (62 P. S. § 1057.3(a)(13)).

 There is a major difference between requiring a facility to actually provide supplemental health care services and having a facility merely assist with securing health care. While one is mandatory, the other is permissive. A PCH can choose whether it wants to assist the resident to secure health care, but an ALR has no choice in the matter. An ALR must provide supplemental health care as defined in Act 56 or it will not meet the minimum licensure standard to operate as an ALR.

 Requiring that an ALR provide supplemental health care services supports another core concept of an ALR, that is, an ALR allows individuals to age in place. Act 56 defines ''age in place'' or ''aging in place'' as ''receiving care and services at a licensed assisted living residence to accommodate changing needs and preferences in order to remain in the assisted living residence.'' (Emphasis added.) See section 1001 of the code.

 Rather than having to move out of a PCH when a resident's acuity needs become too great for the PCH to meet, an ALR is designed to allow a resident to age in place to accommodate changing needs as well as preferences of the resident. As stated in the preamble to the PCH final-form rulemaking, ''Personal care homes are not licensed as medical facilities and are not required to hire licensed, certified or registered medical professionals. Although some personal care homes employ doctors, registered nurses, certified nursing assistants, certified registered nurse practitioners and licensed practical nurses to assist in service provision for the residents, this is not mandated.'' See 35 Pa.B. 2499, 2502.

 This leads to a discussion of another significant difference between ALRs and PCHs. A PCH is restricted in the type of care that it can provide. A PCH, by statute, is not permitted to serve individuals who ''require the services in or of a licensed long-term care facility.'' See section 1001 of the code. This was emphasized in the preamble to the PCH final-form rulemaking at 35 Pa.B. 2499: ''Personal care homes are designed to provide safe, humane, comfortable and supportive residential settings for adults who do not require the services in or of a licensed long-term care facility, but who do require assistance or supervision with activities of daily living (ADL) or instrumental activities of daily living (IADL), or both.'' (Emphasis added.) Indeed, the preamble to the PCH final-form rulemaking emphasized ''Commonwealth law prohibits a personal care home from housing and serving residents whose care needs would qualify them for nursing facility care. This distinction is made in the statutory definition of 'personal care home' in section 1001 of the Public Welfare Code (62 P. S. § 1001), which provides that an individual who needs the level of care of a long-term care facility, or nursing home, cannot be served in a personal care home.'' See 35 Pa.B. 2499, 2502.

 To reinforce the distinction between an ALR and a PCH, Act 56 provides that prior to admission, an initial screening must be done to determine whether the potential resident requires the services provided by an ALR or a PCH. See section 1057.3(a)(1)(ii) and (iii) of the code. According to section 1057.3(a)(1)(iii) of the code, ''a resident who currently does not require assistance in obtaining supplemental health care services, but who may require such services in the future or who wishes to obtain assistance in obtaining such services or reside in a facility in which such services are available, may be admitted to the ALR provided the resident is only provided service required or requested by the resident. Where services are required, the ALR shall develop a support plan as defined in 55 Pa. Code Chapter 2600 (relating to personal care homes) and any other regulations applicable to assisted living residences.''

 Thus, the level of care for an ALR resident can vary widely, ranging from an individual: who does not require supplemental health care services at the time of admission to the ALR, but who may require services in the future; or who wishes to obtain assistance with obtaining such service; or who wants to live in a facility in which such services are available.

 By contrast, the screening for a PCH provides that the screening will be done ''to determine that the potential resident does not require the services in or of a long-term care facility and whether the resident requires the services of a personal care home, and if so, the nature of the services and supervision necessary.'' See section 1057.3(a)(1)(ii) of the code.

 The screening requirements in this final-form rulemaking clearly exceed the preadmission screening currently in place for PCHs. See §§ 2800.224, 2800.225 and 2800.227. This should further allay concerns that there will be confusion in the minds of potential residents as to the appropriate place to live, whether it be a PCH or an ALR. The screening and assessment process for an ALR will allow an individual and his family, if applicable, to know up front whether or not the ALR can meet his care needs and preferences and what those care needs are through the assessment process.

 Furthermore, Act 56 provides that some services that would traditionally be offered in a skilled nursing facility may be offered by an ALR. For example, although Act 56 contains a prohibition against allowing a consumer with certain excludable conditions to be admitted, retained or served in an ALR, the law permits an exception to be granted by the Department upon the request of the ALR. These excludable conditions defined in Act 56 include skilled nursing care needs such as ventilator dependency, stage III and IV decubiti and vascular ulcers that are not in a healing stage, continuous intravenous fluids, reportable infectious diseases in a communicable state, nasogastric tubes, physical restraints and ''continuous skilled nursing care twenty-four hours a day.'' See section 1057.3(e) of the code. Nevertheless, if an exception is granted by the Department, an ALR may care for an individual whose health care needs fall within these excludable conditions, some of which would ordinarily be provided in a skilled nursing facility. See section 1057.3(f) and (g) of the code. Again, this accords with the legislative intent of Act 56 that consumers who choose an ALR be allowed to ''age in place'' and receive care that is beyond the level that a PCH is authorized to provide.

 The concept of allowing an ALR to provide for ''aging in place'' is also reinforced by the provisions of Act 56 that require the regulations for ALRs to create ''standards for transfer and discharge that require the ALR to make reasonable accommodations for aging the place and that may include service from outside providers.'' See section 1026(a)(1)(viii) of the code (62 P. S. § 1026(a)(1)(viii)). Finally, with respect to informed consent agreements, Act 56 provides that the Department's regulations must create standards for informed consent agreements that promote aging in place. See section 1026(a)(1)(vii) of the code. Including the concept of informed consent in promoting the ability of an individual to age in place is yet another distinction between PCHs and ALRs.

 In addition, in further response to IRRC's request that the Department explain the difference between an ALR and a PCH, the Department would point out that a key distinction between PCHs and ALRs relates to ''bricks and mortar.'' As stated in the preamble to Act 56 ''[a]ssisted living residences are a combination of housing and supportive services, as needed.'' (Act 56, Findings and Declarations.) While PCHs are required under § 2600.101 (relating to resident bedrooms) to have bedrooms for residents, there is not a requirement that the PCH resident have a private bathroom, living space or kitchen capacity in his own room. Furthermore, the regulations for PCHs permit up to four residents per bedroom. Bathrooms in a PCH may be shared and § 2600.102 (relating to bathrooms) provide specific ratios for residents for matters such as toilets, sinks and bathtubs or showers. On the other hand, Act 56 mandates that the regulations issued by the Department require that an ALR provide a resident with the resident's own living unit. See section 1026(a)(2)(ii) of the code. Act 56 further provides that a licensee may not require residents to share a living unit, but two residents may voluntarily agree to share one unit, provided that the agreement is in writing and contained in each of the residency agreements of those individuals. See section 1026(a)(2)(ii) of the code.

 A living unit in an ALR must contain a ''. . . private bathroom, living and bedroom space, kitchen capacity, which may mean electrical outlets to have small appliances such as a microwave and refrigerator, closets and adequate space for storage and a door with a lock, except where a lock or appliances in a unit under special care designation would pose a risk or be unsafe.'' See section 1021(a)(2)(iv) of the code. Under no circumstances may a resident be required to share a living unit in an ALR. See section 1021(a)(2)(ii) of the code. By law, the Department is required to establish the minimum square footage requirements for individual living units. See section 1021(a)(2)(v) of the code. Clearly, the characteristics of the accommodations that are provided in a PCH versus an ALR are distinguishable.

 The physical site requirements for an ALR provide for greater privacy and freedom for the individual to exercise decision making and personal choice. Residents in an ALR will have more options regarding their personal preferences in their living units, such as meal planning and preparation, since kitchen capacity is required for the living units in an ALR.

 Further, the minimum square footage for resident bedrooms versus living units is distinguishable between PCHs and ALRs. The minimum square footage for a single resident bedroom in a PCH is 80 square feet. Each PCH shared bedroom must have at least 60 square feet per resident with up to four residents sharing a bedroom. See § 2600.101. The Department also notes that for individuals with mobility needs, the square footage requirement for PCHs is 100 square feet for the individual's bedroom. See § 2600.101(c). This final-form rulemaking requires for ALRs, however, at a minimum, 160 square feet for single person living units for existing facilities that wish to convert to ALR licensure, and 225 square feet for single person living units in an ALR which is built after the effective date of this proposed rulemaking. Since the requirement that the living unit must not only provide space for a resident's bedroom, but must also contain living space and kitchen capacity to allow for the individual a private place to relax, entertain family and friends and possibly prepare meals (if the resident chooses to have appliances in his living unit), adequate square footage must be provided to accommodate all of these activities.

 Additionally, as the Legislature made clear in enacting Act 56, ''No person, organization or program shall use the term 'assisted living' in any name or written material, except as a licensee in accordance with this chapter.'' See section 1057.3(i) of the code. Hence, only those ALRs licensed under this final-form rulemaking will be authorized to advertise themselves as an ALR. When comparing potential long-term living options, prospective residents will have the assurance that the facility that they are considering is licensed as an ALR by the Department. This should further reduce the confusion that has been expressed by commentators as to explaining the difference between an ALR and a PCH.

 In response to IRRC's inquiry about how residents and licensees will be affected by the statutory differences between ALRs and PCHs, an existing licensed PCH is neither required to seek licensure as an ALR, nor meet the new licensure requirements in Chapter 2800. It is a business decision by a facility whether to seek licensure as an ALR or remain licensed as a PCH. This final-form rulemaking is designed to fulfill the statutory requirement that the Department establish minimum licensure requirements for an ALR. It does not dictate that an existing PCH convert to an ALR. The Department did, however, take into account that there are many existing PCHs that are interested in becoming licensed as ALRs. Therefore, the Department, with the advice and consultation of the stakeholders, made provision in the final-form rulemaking to allow existing PCHs to convert to ALR by providing decreased square footage for living units and lower kitchen capacity requirements for existing facilities. In addition, the Department amended the language in § 2800.53(a)(6) (relating to qualifications and responsibilities of administrators) to provide for a PCH administrator to be qualified as an ALR administrator if certain conditions are met.

 Finally, as to IRRC's inquiry about the fact that the statutory provision for Act 56 regarding ''special care designation'' does not reference the existing PCH regulations in §§ 2600.231—2600.239, the Department finds that there is not a restriction in Act 56 that would preclude a PCH from continuing to provide secure dementia care in accordance with the PCH regulations cited by IRRC.

General—B. Resident population

 IRRC inquired about what population will be served by an ALR. Specifically, IRRC asked how the care in an ALR differs from the care currently provided by long-term care facilities and PCHs. IRRC commented that this distinction is vital to potential residents and their families in their evaluation of which path best fits their current and future health care needs and the ability to pay and promotes happiness and wellness. IRRC further inquired what would be the advantages and disadvantages of choosing one over the other.

Response

 Since ALRs provide for residents to age in place, the population of an ALR will vary widely. Prospective residents include adults who require assistance or supervision in matters such as dressing, bathing, diet, financial management, emergency evacuation and self-administra-tion of medication. With respect to the provision by the ALR of supplemental health care services, some consumers may not require assistance in obtaining supplemental health care services currently, but may require such services in the future. Some may wish to obtain such services or reside in a facility in which supplemental health care services are available. It is apparent that the legislature wanted to provide flexibility to consumers by requiring that the ALR screening process would determine the individual's needs regarding provision of supplemental health care services. The distinction between ALRs and PCHs is that ALRs are a long-term care alternative that allow individuals to age in place, maintain independence and exercise decision making and personal choice. Note that a PCH is not defined in Act 56 as a long-term care alternative. Instead, as previously discussed, the definition of a ''PCH'' specifically excludes individuals who require the services in or of a licensed long-term care facility. ALRs are designed to provide a home-like environment where residents have an opportunity to have their own private living unit complete with a private bathroom and kitchen capacity which gives the residents an area to prepare their own meals if they choose to do so. As stated previously, as a long-term care alternative, an ALR is required to provide supplemental health care services; by contrast, a PCH is merely permitted to assist the resident in obtaining health care service as provided in the PCH regulations under §§ 2600.29 and 2600.181—2600.191. A PCH may not provide supplemental health care services to residents. See section 1057.3(a)(13) of the code.

 The distinction between an ALR and a long-term care facility is that a long-term care facility provides ''nursing care and related medical or other health services'' to individuals who need care. See section 1001 of the code. In § 2800.22(b)(1) and (d) (relating to application and admission), the Department clarified that an adult who requires the services of a licensed long-term care nursing facility may reside in the ALR, if certain conditions are met. These include: the needs of the potential resident can be met by the ALR; the appropriate supplemental health care services are provided to the resident; and the design, construction, staffing and operation of the ALR allow for a safe emergency evacuation of the resident.

 In choosing between a PCH, an ALR and a long-term care facility, an individual or the individual's family will have to examine the individual's current health care needs, potential future health care needs and preferences for living environments. As previously noted, an ALR offers another choice for consumers as the demand for residential options for older residents and people with disabilities is increasing in this Commonwealth.

General—C. Affect on PCHs and their residents

 IRRC noted that commentators are concerned that the new ALR licensure will affect Departmental policy concerning PCHs in a manner that disrupts current PCH residents receiving higher levels of care. For example, under existing PCH regulations, the permissible spectrum of care extends through hospice care. The Department was asked to explain how implementation of ALR licensure will affect PCHs and their residents, whether the proposed rulemaking will in any manner diminish the ability of licensed PCHs to continue providing the same levels of care as they do now, and how Departmental enforcement actions regarding PCHs and their current care will change as a result of this new category of licensure.

Response

 PCHs are required in § 2600.1 (relating to purpose) to provide safe, humane, comfortable and supportive residential settings for adults who do not require the services in or of a licensed long-term care facility, but who do require assistance or supervision with tasks of daily living, such as dressing, bathing, diet, and financial management. (Emphasis added.) It is the Department's position that if a resident's needs are being safely met in a PCH, the resident should be permitted to remain in the PCH. However, it is the PCH's responsibility under § 2600.225(d) (relating to initial and annual assessment) to assess, on an ongoing basis, whether the resident is in need of a higher level of care, and to develop plan for placement as soon as possible.

General—D. What specifically does ''aging in place'' mean for the resident and the ALR?

 Since aging in place allows a resident to remain in the ALR, IRRC inquired how the Department defines ''residence.'' IRRC further inquired if a resident will remain in the same living unit or whether a resident will be moved to another area within an ALR as the resident' needs changed.

Response

 The Department's interpretation of ''residence'' in the definition of ''aging in place'' refers to the ALR since aging in place is distinctly a new concept which applies to ALRs. As IRRC noted previously, a key distinction in Act 56 is the definition of ''aging in place.'' ''Aging in place'' is defined as ''receiving care and services at a licensed assisted living residence to accommodate changing needs and preferences in order to remain in the assisted living residence.'' See section 1001 of the code. Act 56 provides residences with the discretion to decide whether they designate portions or sections of the ALR for use only by residents not requiring supplemental health care services or whether they allow both those needing these services and those who do not need these services to reside within the same portions or sections of the ALR. See section 1057.3(h)(ii) of the code. This will be a major determining factor in whether or not a person will move when needs change.

 Additionally, special care units are residences or portions of residences that provide specialized care and services for residents with Alzheimer's disease, dementia and brain injury. It is only in these special care units that specialized care can be provided to residences with these conditions. That is also another determinative factor in whether a resident will move from one portion of an ALR to another area within the facility.

 In the case of a dually-licensed facility which is licensed as both a PCH and an ALR, when a resident who currently resides in a PCH later requires the services of an ALR, there are a number of factors to consider whether the resident would need to transfer to the ALR portion of the facility. A requirement of dual licensure for a PCH and ALR is that ALR areas must be collocated in the same building and be a distinct part of the building. A ''distinct part'' is defined in § 2600.4 (relating to definitions) as a portion of a building that is visually separated such as a wing or floor, or sections or parts of floors. This provision is in the regulation because ALRs and PCHs have a number of significantly different physical site licensing requirements, such as room size, private bath and kitchen capacity. ALR living units must meet the square footage requirements of the ALR regulations; kitchen capacity must be provided to allow for resident meal choice; the living unit would have to be located in a distinct part of the facility and would have to meet all other ALR standards including the mandate to provide supplemental health care services. In other words, a PCH bedroom cannot automatically become an ALR living unit merely because the needs of its occupant change. If, however, a PCH bedroom qualifies as an ALR living unit by meeting the requirements of this chapter, and if the ALR chooses to designate it and increase its ALR capacity accordingly, the resident would be able to remain in the same room he occupied as a PCH resident.

General—E. Revision of existing PCH regulations

 IRRC questioned whether the Department has a strategy for revising the existing PCH regulations.

Response

 The Department's policy is to continually review its regulations as circumstances change. Once this final-form rulemaking is promulgated, the Department will give careful consideration to whether the PCH regulations should be amended.

General—F. Fiscal impact and the potential for Medicaid funding

 IRRC and legislators questioned the fiscal impact of this final-form rulemaking and also the potential for Federal financial assistance through a Medicaid waiver program. IRRC requested that the Department explain how and when the Department intends to seek Medicaid waiver funding, including the anticipated Federal response. IRRC also inquired into how many rooms will be qualified to be licensed to provide ALR services. IRRC also requested an explanation on the availability of ALRs at a cost residents of this Commonwealth can afford.

Response

 The Department intends to apply for a Medicaid waiver after this final-form rulemaking is published. The waiver application process consists of an application submitted to the United States Department of Health and Human Services' Centers for Medicare and Medicaid (CMS). Thereafter, CMS reviews the application, provides comment and can request additional information. This process may be repeated until final approval is obtained. At least 38 states have CMS-approved Assisted Living waivers in place. If approval for the waiver is granted, the Department would implement it in FY 2010-2011.

 In October 2008, the Department conducted a survey of the 1,437 PCHs licensed in this Commonwealth. We received 723 responses to the survey. The 723 responses represented a total of 28,774 rooms. Of those rooms, 20,648 were indicated to have a bathroom and 5,409 with a kitchen or kitchen facilities. Using the originally proposed square footage of 175 square feet, the Department estimated that there were approximately 220 PCHs that had at least 90% of their rooms that would meet the square footage requirements under the ALR regulations. Using the same survey results, approximately 243 PCHs had 90% of their rooms that would qualify as to room size under a square footage requirement of 160 square feet. While these PCHs would meet the square footage requirements, it is unknown how many of them plan to pursue licensure as an ALR.

 In terms of the availability of ALRs at a cost that people can afford, it is important to recognize how costly long-term care services are and to view that cost in the context of services provided in other settings, such as in nursing facilities. Medical Assistance is the primary payer for approximately 2/3 of those using nursing facility-based care.

 Today, the older population in this Commonwealth at highest risk of needing nursing facility level of care lacks the personal financial resources to pay for that care. Eighty percent of this population has less than $100,000 in liquid assets and only 27% of those over 65 years of age have sufficient resources to cover 2 1/2 years of nursing facility care. The cost of nursing facility care is over $70,000 a year for a private payer (Health Affairs, Volume 22, Number 3, May/June 2003, http://www.healthaffairs.org). On the other hand, according to MetLife data, the average cost for assisted living Nationally is $3,000 a month, or $36,000 a year (http://www.metlife.com/assets/cao/mmi/publications/studies/mmi-market-survey-nursing-home-assisted-living.pdf).

 By establishing a licensed ALR program in this Commonwealth, once a waiver is approved, persons with low income will have an opportunity to age in place and receive supplemental health care services at a much more affordable rate than they would in nursing facilities.

General—G. Dual licensure

 IRRC, legislators and many other public commentators objected to the fact that the proposed rulemaking did not provide standards for dual licensure of PCHs and ALRs.

Response

 The Department has provided for dual licensure for PCHs and ALRs in this final-form rulemaking. The dual licensure provisions are in §§ 2800.4 and 2800.11(g) (relating to definitions; and procedural requirements for licensure or approval of assisted living residences; special care designation and dual licensure). If the ALR and the PCH are collocated in the same building and are each located in a distinct part of the building, they may be dually licensed. See § 2800.11(g). As previously noted, a ''distinct part'' is defined as ''a portion of a building that is visually separated such as a wing or floor, or sections or parts of floors.'' See § 2800.4.

 Based on industry stakeholder input, the Department's intent in this language is to provide some flexibility in the configuration of what constitutes a distinct part to allow for the establishment of smaller, visually separated clusters of ALR-licensed living units.

General—H. Levels of care

 IRRC questioned whether the final-form rulemaking provides a single level of care to residents. IRRC further commented that the Department should explain why the Department did not develop different ranges of requirements or levels of care to meet the unique needs of the different types of residents and also provide for choice and availability for consumers.

Response

 The Department carefully weighed the competing concerns expressed by consumers versus industry stakeholders. Industry stakeholders suggested a ''menu'' approach whereby a few essential services such as personal care services, linen service, meals, housekeeping and supervision are required so-called core assisted living services. They recommended that other services be optional so that the resident could pick and choose from a menu containing a variety of services with different costs associated with each service option.

 Consumers, however, were very concerned that it is difficult to compare and contrast one ALR from another if each offers an array of confusing add-ons to the basic core services. Further, there was concern that once an individual entered an ALR, the individual could be ''nickeled and dimed'' for various add-ons that would rapidly deplete his financial resources and increase the cost of care dramatically from the consumer's planned outlay for residing in an ALR. In the draft final-form regulation issued in June 2009, the Department attempted to reconcile these competing concerns by establishing two distinct levels of care: an independent core package and enhanced core package. See § 2800.220 (relating to service provision). The Department further modified these provisions of the final-form rulemaking to allow a consumer to opt-out of certain services in the two core service packages with a concomitant contract price adjustment. Further, to allay the concerns of consumers, the Department added much more depth and detail to assessment of a potential ALR resident to ensure that the needs of the potential resident are carefully assessed so that the type and cost of care that will be provided by the ALR will be known ''up-front.''

General—I. Further consultation and advanced notice of rulemaking

 Although IRRC commended the Department for convening numerous meetings to consult with industry stakeholders, consumers and other interested parties in preparing the proposed rulemaking, IRRC recommended that the Department organize additional meetings with stakeholders and that the Department publish an advance notice of final rulemaking to allow the opportunity to resolve and review remaining issues prior to publication of the final-form rulemaking.

Response

 The Department recognizes that in any new licensure program, there will be many voices to consider and viewpoints to reconcile. To expect that consensus can be achieved in all areas is not realistic or feasible. Nevertheless, the Department strived to be as inclusive and transparent in this final-form rulemaking as possible. The Department, following notice of proposed rulemaking, continued to meet with stakeholders, both in group settings as well as individually. In addition, the Department facilitated several meetings with representatives from major industry groups and a coalition of consumers for both the elderly and persons with disabilities. In some cases, the parties were able to come to mutual agreement regarding specific language changes and resolve several key issues in the final-form rulemaking.

 Finally, the Department worked closely and collaboratively with stakeholders, IRRC and the legislative committees by issuing a draft final-form regulation that was released for public comment and posted on IRRC's website on June 24, 2009. Following the 30-day comment period, the Department carefully considered the additional 79 comment letters it received and participated in further meetings with stakeholders and legislators. The Department finds that it has identified the major concerns expressed on all sides of the regulatory debate and has attempted either to resolve the competing concerns by consensus or has struck a balance between what the industry stakeholders would like to see versus what consumers have advocated.

§ 2800.1. Purpose

§ 2800.2. Scope

 IRRC commented that it believes that these sections did not sufficiently explain the proposed rulemaking. IRRC also commented that these sections should distinguish ALRs from PCHs.

Response

 The Department finds that the two cited provisions are designed to be very general overall statements regarding the scope and purpose of the regulations. The language in these provisions is similar to the PCH regulations. See § 2600.1 and § 2600.2 (relating to scope). Further, the distinctions between an ALR and a PCH are more fully set forth previously in the discussion regarding the statutory distinctions between an ALR and a PCH.

§ 2800.3. Inspections and licenses

 IRRC questioned how the abbreviated inspection process would work and how it would differ from a routine inspection. Also, IRRC asked what portions of the inspection the Department would waive during an abbreviated inspection.

Response

 Act 56 provides that ''while developing regulations under this act, the department may provide for an abbreviated annual licensure visit when a residence has established a history of exemplary compliance.'' (Emphasis added.) See section 211(l) of the code. After careful consideration, the Department decided to delete proposed § 2800.3(c) (relating to inspections and licenses). This issue will be the subject of a future rulemaking after the Department has had an opportunity to study and review the matter further and gain greater experience in licensing ALRs.

§ 2800.4. Definitions—Age in place or aging in place

 IRRC questioned why the definition did not mirror the statutory definition.

Response

 The Department amended the definition to conform to the statutory definition.

§ 2800.4. Definitions—Commercial boarding residence

 IRRC questioned the inclusion of this definition and noted that it was found in the exclusions in § 2800.2(b) (relating to scope).

Response

 The proposed definition contained an error. The Department's intent was to conform to the definition and the exclusion in the PCH regulation since ALR regulations must ''meet or exceed'' the PCH regulations under section 1021(a)(2)(i) of the code. The definition has been corrected to be a ''commercial boarding home'' and the exclusion relates to a ''commercial boarding home'' to be consistent with the PCH regulations in § 2600.4.

§ 2800.4. Definitions—Designated person and legal representative

 IRRC asked for an explanation of these terms. IRRC suggested that the terms are confusing. IRRC requested the Department explain why different terms are needed and appropriate. IRRC further questioned the intent of the phrase ''or other person authorized to act for the resident'' in the definition of ''legal representative.''

Response

 A ''designated person'' is a broader term than ''legal representative'' and may be a family member, close friend or relative who is to be notified in exigent circumstances, such as an emergency or closure of an ALR. See § 2800.4. Although in some situations a resident may choose a legal representative as a ''designated person,'' it is not required for a resident to have a legal representative fulfill this role. In contrast, a ''legal representative'' has powers beyond those of a designated person and is ''an individual who holds a power of attorney, a court-appointed guardian or other person legally authorized to act for the resident.'' See § 2800.4.

 Since not every type of legal representation can be identified, the definition left open the possibility of other types of authorization being included in the definition of ''legal representative.'' The Department did, however, clarify the definition to include ''other person legally authorized to act for the resident.''

§ 2800.4. Definitions—Exemplary compliance

 IRRC questioned the use of this term and inquired how the 3-year history of exemplary compliance was established. IRRC further inquired into what would constitute a ''deficiency.''

Response

 As noted previously, the Department decided to withdraw this provision and will consider it for a future rulemaking.

§ 2800.4. Definitions—Informed consent agreement

 IRRC questioned why the regulatory and statutory terms differed. The regulatory definition included additional language in subparagraph (iii) and IRRC recommended its deletion.

Response

 The Department agreed and made the change so that the two definitions mirror each other.

§ 2800.4. Definitions—Supplemental health care services

 IRRC questioned why the regulatory definition did not precisely mirror the statutory definition.

Response

 The Department agreed and made the change so that the two definitions mirror each other.

§ 2800.11. Procedural requirements for licensure or approval of assisted living residences; special care designation and dual licensure

 IRRC and legislators commented the licensure fees for an ALR were excessive. IRRC requested that the Department provide detailed information on how the fees were established, how the fees cover the Department's costs in implementing quality assurance and how much the fees will increase costs to residents. IRRC also requested an explanation of whether an application to change maximum capacity requires payment of a fee and, if so, the amount of the fee. Finally, IRRC requested an explanation of how fees will be charged for dually licensed facilities.

Response

 Based on the comments received, the Department reconsidered the fee structure for ALRs. The Department reduced the licensure application and renewal fee from $500 to $300 and reduced the per bed fee from $105 to $75. An application to change the maximum capacity will not require an additional licensure fee. It will, however, result in additional per bed fees to reflect the increased capacity. For dually-licensed facilities, the fee will be the same fee charged for a PCH license plus the licensing fee previously mentioned for an ALR. Dually-licensed facilities would continue to pay the PCH per bed fee for those beds in the licensed PCH parts of the facility and the ALR per bed fee for those beds in the licensed ALR parts of the facility. The Department also will charge an application fee of $150 for an ALR to request special care designation.

 In terms of how the Department arrived at these fees, the initial intent was to make them reasonably related to the cost of regulating this care setting. The Department looked at the number of potential residences, approximated the number of beds per residence and calculated how much staff time it would take to license and oversee the program. The Department then looked at other states to make sure that the rates were not unduly higher or lower than others. When the proposed rulemaking was published, the Department received many comments from industry stakeholders stating that the fees that were proposed would be a disincentive for many of them to seek ALR licensure. Consequently, the fees were decreased. Attachment B of the Regulatory Analysis Form contains a comparative analysis of licensure fees between this Commonwealth and a number of other states.

§ 2800.19. Waivers

 IRRC questioned the time frame for the Department to respond to waiver requests.

Response

 The Department did not specify a time frame for responding to waiver requests. A review of the Department's other licensure chapters discloses that no other chapter provides for a time frame for responding to waivers. See §§ 2600.19, 3130.4, 3140.5, 3270.13, 3280.13, 3680.5, 3700.5, 3800.22, 5310.5 and 6500.12. Indeed, at the request of commentators, the Department has provided greater transparency in the waiver process in this final-form rulemaking than that which exists in other Department licensure regulations. Under the final-form rulemaking, waiver requests will be posted to the Department's website for a 30-day comment period prior to review and decision on the requested waiver. Given that the types of waivers requested may vary widely in scope and complexity, the Department is reluctant to bind itself to a specific time frame for responding to waiver requests. Furthermore, since there is no other precedent in Department licensure regulations for a deadline for responding to waiver requests, the Department will not establish a deadline in this final-form rulemaking.

§ 2800.22. Application and admission

 IRRC questioned the application and admission procedures and raised a concern as to whether these procedures are completed quickly enough to protect a resident's health and to protect a resident who may later be rejected. The Department was also asked to explain how it came up with the time frames for the various admission procedures and why those time frames are reasonable and protective of the public health, safety and welfare.

Response

 The Department made several significant changes to the admission and assessment procedures to respond to the concerns expressed by IRRC and other commentators. Based on these comments, this final-form rulemaking now provides for an initial assessment, a preliminary support plan, final support plan and certification that the needs of a potential resident can be met by the services provided by the residence. Specifically, the admission process includes the following: a medical evaluation completed within 60 days prior to or within 15 days after admission; an initial assessment completed within 30 days prior to admission or within 15 days after admission; a preliminary support plan developed within 30 days prior to admission or within 15 days after admission; a certification that the needs of a potential resident can be met prior to admission; and a final support plan within 30 days after admission.

 These preadmission and assessment procedures provide both the resident and the ALR with the information to determine whether a potential resident's needs can be met by the ALR prior to admission.

 Further, to allow for flexibility, the final-form rulemaking provides exceptions to the medical evaluation, initial assessment and preliminary support plan timelines under certain circumstances. The medical evaluation, initial assessment and the preliminary support plan can be completed 15 days after admission if one of the following conditions applies: the resident is being admitted directly to the ALR from an acute care hospital; the resident is being admitted to escape an abusive situation; or there is a situation where the resident has no alternative living arrangement. See §§ 2800.22 and 2800.224.

 In addition to additional preadmission requirements, the Department also added language to clarify both the certification process and the admission process. The final-form rulemaking now defines who is authorized to make a certification. The Department added language that potential residents who do not need supplemental health care services and also potential residents who require the service of a licensed long-term care nursing facility may be admitted to an ALR. This added language was based on the statutory language of Act 56. See section 1057.3(b) of the code.

§ 2800.25. Resident—residence contract

 IRRC questioned whether assisted living services must be listed separately or whether they can be bundled or unbundled to meet a resident's needs. IRRC also questioned the relationship between this section and § 2800.220, regarding assisted living services.

Response

 The Department clarified the language in this section. Subsection (c)(2) now provides that a contract must specify the ''fee schedule that lists the actual amount of charges for each of the assisted living services that are included in the resident's core service package in accordance with § 2800.220 (relating to service provision).'' As previously mentioned, the Department further amended § 2800.220 to provide for two core service packages: an independent core package and an enhanced core package. These two packages provide different services based on a resident's needs. Since the services are clearly identified in the resident-residence contract, a potential resident will be able to accurately compare the prices of assisted living services offered by different ALRs. In addition to the core service packages, an ALR must provide supplemental health care services and the supplemental health care services must be packaged, contracted and priced separately from the contract. See section 1026(b)(iii) of the code.

 The Department also carefully considered the comments of industry stakeholders who argued that there were too many services listed in the two core service packages that consumers neither ''want nor need'' and expressed concern that the final-form rulemaking would require individuals to accept and pay for services that consumers could do for themselves. The two examples cited most often were meals and personal laundry service as being services that many consumers would prefer to do on their own or ask family or friends for assistance. The Department heeded these concerns and made provision for the resident to ''opt-out'' of three services in the core service packages with an accompanying requirement that the contract price be adjusted accordingly. See § 2800.25(c)(2) and (l) (relating to resident-residence contract) and § 2800.220(d). The three services that a resident may opt out of are meals, housekeeping and laundry service. See § 2800.220(c)(1)(ii)—(iv).

§ 2800.30. Informed consent process

 IRRC questioned whether the informed consent process will discourage providers from participating in the process, but also pointed out that other commentators believe that the informed consent provisions do not provide sufficient protection for consumers. IRRC requested that the Department explain how it developed the informed consent process and why it represents the best alternative to accomplish informed consent agreements.

Response

 While the informed consent process generated numerous comments, including suggestions that the process be omitted, the Department is, nevertheless, required by Act 56 to develop standards for an informed consent process. Act 56, however, was silent with respect to those standards. Thus, the Department, based upon recommendations by the American Association of Retired Persons during the meetings that included industry stakeholders, adopted the procedures from House Bill 1583, Printer's Number 2012 (2007 Session) introduced by Representative Mundy.

 In the proposed rulemaking, the Department was criticized for including a provision that would involve the local ombudsman in the informed consent process as an investigator or mediator rather than as an advocate for the resident. The Department deleted those provisions in the final-form rulemaking. Instead, the notification provisions for the availability of the ombudsman are the only references remaining in the final-form rulemaking. A rescission provision that allows either the resident or the ALR to cancel the agreement was also added in the final-form rulemaking, which further protects the rights of residents and providers. The Department also listened to the concerns of consumers by including in the proposed rulemaking that informed consent agreements are entered into only by the residence and the resident when there was ''imminent'' risk of ''substantial'' harm to the resident. On reconsideration, however, and in response to objections made by other commentators, the Department decided to delete these terms and adhere strictly to the provisions in the statute, which does not qualify the level or immediacy of the risk to the resident.

 The Department further limited the informed consent process to a resident who is competent unless a legal representative is involved in the process. Based upon these changes, the Department finds that it has struck a balance between the competing concerns of the parties while at the same time ensuring that the informed consent process meets the legislative intent and protects both the providers and consumers involved in the process.

§ 2800.51. Criminal history checks

 IRRC questioned the requirements for criminal history checks of employees in light of Nixon v. Commonwealth, 789 A.2d 376 (Pa. Cmwlth. Ct. 2001). IRRC specifically inquired how the Department will enforce this provision without violating the Nixon rule.

Response

 The Department clarified in the final-form rulemak- ing that it will follow the hiring polices in the Department of Aging's policy concerning the Older Adults Protective Services Act (OAPSA) (35 P. S. §§ 10225.101—10225.5102). This policy is available at http://www.dsf.health.state.pa.us/health/lib/health/dncf-ciunit/nixon case.pdf. This represents the official administration policy and, until there is legislative action to address the Nixon case, the Department is bound by the policy enunciated by the Department of Aging, which is responsible for OAPSA. This approach was suggested to the Department by Community Legal Services and we find that is a sound recommendation.

§ 2800.56. Administrator staffing—Administrator hours

 IRRC commented that the number of hours for an administrator to be present at the facility is excessive and that there is ambiguity in the proposed rulemaking regarding the number of hours that an administrator or a designee shall be physically present at the facility. IRRC asked for an explanation of why the Department is setting stricter standards for ALRs than for other long-term care facilities and noted that other types of long-term care facilities may share an administrator. IRRC also asked the Department to explain how many administrators would be needed for a typical facility to meet the requirements in a typical year and the associated costs. IRRC also requested the Department explain how the administrator requirements will accommodate the need for an administrator to attend offsite training sessions and meetings.

Response

 The basis for the requirement that an administrator or a designee be present 40 hours per week, with 30 of those hours during normal business hours was the Department's expectation that the acuity needs of the residents in ALRs will be substantially higher than for residents of PCHs. (There was an inadvertent error in the proposed rulemaking that provided that the administrator had to be present at the facility an average of 30 hours per ''month'' during normal business hours. This has been corrected to require that the administrator be present at least 30 hours per week during normal business hours.)

 The Department, however, never intended that an administrator or the administrator designee be present at the facility 24 hours a day, 365 days per year. Instead, the administrator designee is to be available to fill the balance of the required hours per week that an administrator is absent. The Department clarified the language in the final-form rulemaking to reflect that the administrator is able to go offsite for temporary absences, such as vacation and training. During those temporary absences, the administrator designee is required to be present to fill the required administrator hours in subsection (a). The Department also clarified in the final-form rulemaking that during the administrator's and administrator designee's absences, a direct care staff person shall be in charge of the facility. During those times, the administrator or administrator designee shall be on-call.

 In addition to these clarifying amendments, the Department also amended the hourly requirement for administrators to 36 hours per week. The PCH regulations require that administrators be present in the PCH on average at least 20 hours per week. Because of the higher acuity levels anticipated in ALR residents, the Department did not think this was adequate administrative coverage and instead initially set the ALR standard to be 40 hours a week. However, the Department received many comments from industry stakeholders who felt that meeting this requirement would be a challenge. They felt it would be difficult for them to conduct the functions of the position and to attend required training if they had to spend that amount of time at the residence. In response, the requirement was reduced to 36 hours and maintained that this change, coupled with the language added to clarify that administrator designees may provide some of the coverage, address the concerns raised.

 Further, in § 2800.11, allowance has been made for administrator-sharing for dually licensed ALRs and PCHs. Finally, in response to the question regarding costs of administrators, the Department provided this information in its analysis in the Regulatory Analysis Form.

§ 2800.56. Administrator staffing—Administrator designee

 IRRC commented on the provision requiring the same training for an administrator designee as for the administrator. Specifically, IRRC asked why the Department is setting this training requirement.

Response

 Based on the comments received, the Department amended the language regarding the requirements for an administrator designee. The administrator designee is not required to meet the same training requirements as the administrator. Instead, in the final-form rulemaking, the administrator designee shall meet the qualification and training requirements of a direct care staff person, have 3,000 hours of direct operational responsibility and pass the Department-approved competency-based training test. A number of considerations went into development of this requirement. Industry stakeholders suggested that having 3,000 hours of direct operational experience, which is one criteria for being an ALR administrator in Ohio, would represent sufficient experience to be an ALR administrator designee. The Department accepted this recommendation but, to ensure resident health and safety, chose to add that administrator designees shall also meet direct care staff requirements and pass the Department-approved competency-based training test.

§ 2800.60. Additional staffing based on the needs of the residents

 IRRC recommended that the level of nursing training for the on-call nurse be specified in the final-form rulemaking.

Response

 The Department agrees and made the change that the on-call nurse had to be licensed. This would allow either a licensed practical nurse (LPN) or a licensed registered nurse (RN) to fulfill that requirement. The requirements for licensure of either are in 49 Pa. Code Chapter 21 (relating to State Board of Nursing).

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