§ 2800.11. Procedural requirements for licensure or approval of assisted living residences; special care designation and dual licensure.
(a) Except for § 20.32 (relating to announced inspections), the requirements in Chapter 20 (relating to licensure or approval of facilities and agencies) apply
to assisted living residences.
(b) Before a residence is initially licensed and permitted to open, operate or admit residents, it will be inspected by the Department and found to be in compliance
with applicable laws and regulations including this chapter. The Department will reinspect newly licensed residences within 3 months of the date of initial licensure.
(c) After the Department determines that a residence meets the requirements for a license, the Department’s issuance or renewal of a license to a residence is
contingent upon receipt by the Department of the following fees based on the number of beds in the residence, as follows:
(1) A $300 license application or renewal fee.
(2) A $75 per bed fee that may be adjusted by the Department annually at
a rate not to exceed the Consumer Price Index. The Department will publish a
notice in the Pennsylvania Bulletin when the per bed fee is increased.
(d) A person, organization or program may not use the term ‘‘assisted living’’
in any name or written material, except as a licensee in accordance with this
chapter. Corporate entities which own subsidiaries that are licensed as assisted
living residences may not use the term ‘‘assisted living’’ in any written material
to market programs that are not licensed in accordance with this chapter.
(e) Multiple buildings located on the same premises may apply for a single
assisted living residence license.
(f) A licensed assisted living residence may submit an application and a $150
application fee to the Department requesting special care designation. If the
Department determines that the residence meets the requirements for special care
designation, the residence will be issued a license indicating special care designation.
(g) A licensed personal care home may submit an application to the Department requesting dual licensure if the licensed personal care home and the assisted
living residence are collocated in the same building and are each located in a distinct part of the building. If the Department determines that the licensed facility
meets all of the requirements of this chapter, the facility will be issued a dual
license.
(1) A facility that is dually licensed may not segregate residents or transfer
residents from one licensed facility to another based on payment source.
(2) A facility that is dually licensed may request approval from the Department to share the administrator for the two licensed facilities by requesting a
waiver of the administrator hourly staffing requirements contained in
§ 2800.56 (relating to administrator staffing). The qualifications for a shared
administrator must be as set forth in this chapter.
§ 2800.12. Appeals.
(a) Appeals related to the licensure or approval of the assisted living residence shall be made in accordance with 1 Pa. Code Part II (relating to General
Rules of Administrative Practice and Procedure (GRAPP)).
(b) Appeals related to the licensure or approval of the assisted living residence shall be made by filing a petition within 30 days after service of notice of the action.
(c) Subsection (b) supersedes the appeal period of 1 Pa. Code § 35.20 (relating to appeals from actions of the staff).
§ 2800.13. Maximum capacity.
(a) The maximum capacity is the total number of residents who are permitted to reside in the residence at any time. A request to increase the capacity shall
be submitted to the Department and other applicable authorities and approved
prior to the admission of additional residents. The maximum capacity is limited
by physical plant space and other applicable laws and regulations.
(b) The maximum capacity specified on the license may not be exceeded.
§ 2800.14. Fire safety approval.
(a) Prior to issuance of a license under this chapter, a written fire safety
approval from the Department of Labor and Industry, the Department of Health
or the appropriate local building authority under the Pennsylvania Construction
Code Act (35 P. S. §§ 7210.101—7210.1103) is required.
(b) If the fire safety approval is withdrawn or restricted, the residence shall
notify the Department orally immediately, and in writing, within 48 hours of the withdrawal or restriction.
(c) If a building is structurally renovated or altered after the initial fire safety
approval is issued, the residence shall submit the new fire safety approval, or
written certification that a new fire safety approval is not required, from the
appropriate fire safety authority. This documentation shall be submitted to the
Department within 15 days of the completion of the renovation or alteration.
(d) The Department will request additional fire safety inspections by the
appropriate agency if possible fire safety violations are observed during an inspection by the Department.
(e) Fire safety approval must be renewed at least every 3 years, or more frequently, if requested by the Department.
§ 2800.15. Abuse reporting covered by law.
(a) The residence shall immediately report suspected abuse of a resident
served in the residence in accordance with the Older Adult Protective Services
Act (35 P. S. §§ 10225.701—10225.707) and 6 Pa. Code §§ 15.21—15.27 (relating to reporting suspected abuse, neglect, abandonment or exploitation) and
comply with the requirements regarding restrictions on staff persons.
(b) If there is an allegation of abuse of a resident involving a residence’s staff
person, the residence shall immediately develop and implement a plan of supervision or suspend the staff person involved in the alleged incident.
(c) The residence shall immediately submit to the Department’s assisted living residence office a plan of supervision or notice of suspension of the affected staff person.
(d) The residence shall immediately notify the resident and the resident’s
designated person of a report of suspected abuse or neglect involving the resident.
Cross References
This section cited in 55 Pa. Code § 2800.16 (relating to reportable incidents and conditions).
§ 2800.16. Reportable incidents and conditions.
(a) A reportable incident or condition includes the following:
(1) The death of a resident.
(2) A physical act by a resident to commit suicide.
(3) An injury, illness or trauma requiring treatment at a hospital or medical
facility. This does not include minor injuries such as sprains or minor cuts.
(4) A violation of a resident’s rights in §§ 2800.41—2800.44 (relating to resident rights).
(5) An unexplained absence of a resident for 24 hours or more, or when
the support plan so provides, a period of less than 24 hours, or an absence of
a resident from a special care unit.
(6) Misuse of a resident’s funds by the residence’s staff persons or legal entity.
(7) An outbreak of a serious communicable disease as defined in 28
Pa. Code § 27.2 (relating to specific identified reportable diseases, infections and conditions).
(8) Food poisoning of residents.
(9) A physical or sexual assault by or against a resident.
(10) Fire or structural damage to the residence.
(11) An incident requiring the services of an emergency management
agency, fire department or law enforcement agency, except for false alarms.
(12) A complaint of resident abuse, suspected resident abuse or referral of a
complaint of resident abuse to a local authority.
(13) A prescription medication error as defined in § 2800.188 (relating to
medication errors).
(14) An emergency in which the procedures under § 2800.107 (relating to
emergency preparedness) are implemented.
(15) An unscheduled closure of the residence or the relocation of the residents.
(16) Bankruptcy filed by the legal entity.
(17) A criminal conviction against the legal entity, administrator or staff that
is subsequent to the reporting on the criminal history checks under § 2800.51
(relating to criminal history checks).
(18) A termination notice from a utility.
(19) A violation of the health and safety laws under § 2800.18 (relating to applicable laws).
(20) An absence of staff so that residents receive inadequate care as defined
by the respective resident’s support plan.
(b) The residence shall develop and implement written policies and procedures on the prevention, reporting, notification, investigation and management of
reportable incidents and conditions.
(c) The residence shall report the incident or condition to the Department’s
assisted living residence office or the assisted living residence complaint hotline
within 24 hours in a manner designated by the Department. The residence shall
immediately report the incident or condition to the resident’s family and the resident’s designated person. Abuse reporting must also follow the guidelines in
§ 2800.15 (relating to abuse reporting covered by law).
(d) The residence shall submit a final report, on a form prescribed by the
Department, to the Department’s assisted living residence office immediately following the conclusion of the investigation.
(e) If the residence’s final report validates the occurrence of the alleged incident or condition, the affected resident and other residents who could potentially
be harmed or his designated person shall also be informed immediately following
the conclusion of the investigation.
(f) The residence shall keep a copy of the report of the reportable incident or condition.
§ 2800.17. Confidentiality of records.
Resident records shall be confidential, and, except in emergencies, may not be
accessible to anyone other than the resident, the resident’s designated person if
any, staff persons for the purpose of providing services to the resident, agents of
the Department and the long-term care ombudsman without the written consent
of the resident, an individual holding the resident’s power of attorney for health
care or health care proxy or a resident’s designated person, or if a court orders
disclosure.
§ 2800.18. Applicable laws.
A residence shall comply with applicable Federal, State and local laws, ordinances and regulations.
Cross References
This section cited in 55 Pa. Code § 2800.16 (relating to reportable incidents and conditions).
(a) A residence may submit a written request for a waiver of a specific
requirement contained in this chapter. The waiver request must be on a form prescribed by the Department. The Secretary, or the Secretary’s appointee, may grant
a waiver of a specific requirement of this chapter if the following conditions are met:
(1) There is no jeopardy to the residents.
(2) There is an alternative for providing an equivalent level of health,
safety and well-being protection of the residents.
(3) Residents will benefit from the waiver of the requirement.
(b) Following receipt of a waiver request, the Department will post the
waiver request on the Department’s website with a 30-day public comment period
prior to final review and decision on the requested waiver.
(c) The scope, definitions, applicability or residents’ rights, assisted living
service delivery requirements, special care designation requirements, staff training requirements, disclosure requirements, complaint rights or procedures, notice
requirements to residents or the resident’s family, contract requirements, reporting requirements, fire safety requirements, assessment, support plan or service
delivery requirements under this chapter may not be waived.
(d) At least 30 days prior to the submission of the completed written waiver
request to the Department, the residence shall provide a copy of the completed
written waiver request to the affected resident and designated person to provide the opportunity to submit comments to the Department. The residence shall provide
the affected resident and designated person with the name, address and telephone number of the Department staff person to submit comments.
(e) The residence shall discuss the waiver request with the affected resident
and designated person upon the request of the resident or designated person.
(f) The residence shall notify the affected resident and designated person of
the approval or denial of the waiver. A copy of the waiver request and the
Department’s written decision shall be posted in a conspicuous and public place within the residence.
(g) The Department will review waivers annually to determine compliance
with the conditions required by the waiver. The Department may revoke the
waiver if the conditions required by the waiver are not met. When the Department
revokes a standing waiver from a residence that residence may appeal the revocation consistent with § 2800.12 (relating to appeals).
§ 2800.20. Financial management.
(a) A resident may manage his personal finances unless the resident has a
guardian of his estate.
(b) If the residence provides assistance with financial management or holds
resident funds, the following requirements apply:
(1) The residence shall keep a record of financial transactions with the
resident, including the dates, amounts of deposits, amounts of withdrawals and
the current balance.
(2) Resident funds shall be disbursed during normal business hours within
24 hours of the resident’s request.
(3) The residence shall obtain a written receipt from the resident for cash
disbursements at the time of disbursement.
(4) Resident funds and property shall only be used for the resident’s benefit.
(5) Commingling of resident funds and residence funds is prohibited.
(6) If a residence is holding more than $200 for a resident for more than 2
consecutive months, the administrator shall notify the resident and offer assistance in establishing an interest-bearing account in the resident’s name at a
local Federally-insured financial institution. This does not include security
deposits.
(7) The legal entity, administrator and staff persons of the residence are
prohibited from being assigned power of attorney or guardianship of a resident
or a resident’s estate.
(8) The residence shall give the resident and the resident’s designated person, an itemized account of financial transactions made on the resident’s behalf
on a quarterly basis.
(9) A copy of the itemized account shall be kept in the resident’s record.
(10) The residence shall provide the resident the opportunity to review his
own financial record upon request during normal business hours.
Cross References
This section cited in 55 Pa. Code § 2800.25 (relating to resident-residence contract); and 55
Pa. Code § 2800.220 (relating to service provision).
§ 2800.21. Offsite services.
If services or activities are provided by the residence at a location other than
the premises, the residence shall ensure that the residents’ support plans are followed and that the health and safety needs of the residents are met.
§ 2800.22. Application and admission.
(a) Documentation. The following admission documents shall be completed
for each resident:
(1) Medical evaluation completed within 60 days prior to admission on a
form specified by the Department. The medical evaluation may be completed
within 15 days after admission if one of the following conditions applies:
(i) The resident is being admitted directly to the residence from an
acute care hospital.
(ii) The resident is being admitted to escape from an abusive situation.
(iii) The resident has no alternative living arrangement.
(2) Assisted living resident initial assessment completed within 30 days
prior to admission on a form specified by the Department. The initial assessment may be completed within 15 days after admission subject to § 2800.224
(relating to initial assessment and preliminary support plan).
(3) Preliminary support plan developed within 30 days prior to admission.
The preliminary support plan may be completed within 15 days after admission
if one of the following conditions applies:
(i) The resident is being admitted directly to the residence from an
acute care hospital.
(ii) The resident is being admitted to escape from an abusive situation.
(iii) The resident has no alternative living arrangement.
(4) Final support plan is developed and implemented within 30 days after admission.
(5) Resident-residence contract is completed prior to admission or within 24 hours after admission.
(6) Medical evaluations, resident assessments and support plans may be
subsequently updated as needed, but no less frequently than required in
§§ 2800.225 and 2800.227 (relating to additional assessments; and development of the final support plan).
(b) Certification.
(1) A certification shall be made, prior to admission, that the needs of the
potential resident can be met by the services provided by the residence.
(2) The certification shall be made by one of the following persons:
(i) The administrator acting in consultation with the supplemental
health care providers.
(ii) The individual’s physician or certified registered nurse practitioner.
(iii) The medical director of the residence.
(3) A potential resident whose needs cannot be met by the residence shall
be provided with a written decision denying his admission and provide a basis
for the denial. The decision shall be confidential and may only be released with
the consent of the potential resident or his designated person. The potential
resident shall then be referred to a local appropriate assessment agency.
(c) Supplemental health care. A potential resident who requires assisted living services but does not currently require assistance in obtaining supplemental
health care services may be admitted to the residence, provided the resident is
only provided supplemental health care services required or requested by the
resident. When supplemental health care services are required, the residence shall
develop a preliminary support plan as required in § 2800.224. This subsection
applies to residents under any of the following circumstances:
(1) A resident who currently does not require assistance in obtaining
supplemental health care services, but who may require supplemental health
care services in the future.
(2) A resident who wishes to obtain assistance in obtaining supplemental health care services.
(3) A resident who resides in a residence in which supplemental health care services are available.
(d) Adults requiring services of a long-term care nursing facility. Adults
requiring the services of a licensed long-term care nursing facility, including
those with mobility needs, may reside in a residence, provided that appropriate
supplemental health care services are provided those residents and the design,
construction, staffing and operation of the residence allows for their safe emergency evacuation.
(e) Written disclosure. Upon application for residency and prior to admission
to the residence, the licensee shall provide each potential resident or potential
resident’s designated person with written disclosures that include:
(1) A list of the nonwaivable resident rights.
(2) A copy of the contract the resident will be asked to sign.
(3) A copy of residence rules and resident handbook. The resident handbook shall be approved by the Department.
(4) Specific information about the following:
(i) The services and the core packages that are offered by the residence.
(ii) The cost of those services and of the core packages to the potential resident.
(iii) When a potential resident may require the services offered in a different core package.
(iv) The contact information for the Department.
(v) The licensing status of the most recent inspection reports and
instructions for access to the Department’s public website for information on
the residence’s most recent inspection reports.
(vi) The number of living units in the residence that comply with the
Americans with Disabilities Act (42 U.S.C.A. §§ 12101—12213).
(vii) Disclosure of any waivers that have been approved for the residence and are still in effect.
§ 2800.23. Activities.
(a) A residence shall provide each resident with assistance with ADLs and
appropriate cueing for ADLs as indicated in the resident’s assessment and support plan.
(b) A residence shall provide each resident with assistance with IADLs and
appropriate cueing for IADLs as indicated in the resident’s assessment and support plan.
§ 2800.24. Personal hygiene.
A residence shall provide the resident with assistance with personal hygiene
and appropriate cueing to encourage personal hygiene as indicated in the resident’s assessment and support plan. Personal hygiene includes one or more of the
following:
(1) Bathing.
(2) Oral hygiene.
(3) Hair grooming and shampooing.
(4) Dressing, undressing and care of clothes.
(5) Shaving.
(6) Nail care.
(7) Foot care.
(8) Skin care.
Cross References
This section cited in 55 Pa. Code § 2800.220 (relating to service provision).
§ 2800.25. Resident-residence contract.
(a) Prior to admission, or within 24 hours after admission, a written residentresidence contract between the resident and the residence must be in place. The
administrator or a designee shall complete this contract and review and explain
its contents to the resident and the resident’s designated person if any, prior to signature.
(b) The contract shall be signed by the administrator or a designee, the resident and the payer, if different from the resident, and cosigned by the resident’s
designated person if any, if the resident agrees. The contract must run month-tomonth with automatic renewal unless terminated by the resident with 14 days
notice or by the residence with 30 days notice in accordance with § 2800.228 (relating to transfer and discharge).
(c) At a minimum, the contract must specify the following:
(1) Each resident shall retain, at a minimum, the current personal needs
allowance as the resident’s own funds for personal expenditure. A contract to
the contrary is not valid. A personal needs allowance is the amount that a resident shall be permitted to keep for his personal use.
(2) A 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).
(3) An explanation of the annual assessment, medical evaluation and support plan requirements and procedures, which shall be followed if either the
assessment or the medical evaluation indicates the need for another and more
appropriate level of care.
(4) The party responsible for payment.
(5) The method for payment of charges for long distance telephone calls.
(6) The conditions under which refunds will be made, including the refund
of admission fees and refunds upon a resident’s death.
(7) The financial arrangements if assistance with financial management is
to be provided.
(8) The residence’s rules related to residence services, including whether
the residence permits smoking.
(9) The conditions under which the resident-residence contract may be terminated including residence closure as specified in § 2800.228.
(10) A statement that the resident is entitled to at least 30 days advance
notice, in writing, of the residence’s request to change the contract.
(11) A list of assisted living services or supplemental health care services,
or both, to be provided to the resident based on the outcome of the resident’s
support plan, a list of the actual rates that the resident will be periodically
charged for food, shelter and services and how, when and by whom payment is to be made.
(12) Charges to the resident for holding a bed during hospitalization or other extended absence from the residence.
(13) Written information on the resident’s rights and complaint procedures
as specified in § 2800.41 (relating to notification of rights and complaint procedures).
(d) A residence may not seek or accept payments from an SSI resident in
excess of one-half of any funds received by the resident under the Senior Citizens Rebate and Assistance Act (72 P. S. §§ 4751-1—4751-12). If the residence
will be assisting the resident to manage a portion of the rent rebate, the requirements of § 2800.20 (relating to financial management) may apply. There may be
no charge for filling out this paperwork.
(e) The resident-residence contract must include whether the residence collects a portion of a resident’s rent rebate under subsection (d).
(f) If the residence collects a resident’s rent rebate under subsection (e), the
resident-residence contract must include the following:
(1) The dollar amount or percentage of the rent rebate to be collected.
(2) The residence’s intended use of the revenue collected from the rent rebate.
(g) A statement signed by the resident, and the resident’s designated person
if applicable, at the time of admission, informing the resident that the information required in subsections (e) and (f) is to be kept in the resident’s record.
(h) The resident, or a designated person, has the right to rescind the contract
for up to 72 hours after the initial dated signature of the contract. The resident
shall pay only for the services received. Rescission of the contract must be in
writing addressed to the residence.
(i) The residence may not require or permit a resident to assign assets to the
residence in return for a life care contract/guarantee. A life care contract/
guarantee is an agreement between the legal entity and the resident that the legal
entity will provide care to the resident for the duration of the resident’s life. Continuing care communities that have obtained a Certificate of Authority from the
Insurance Department and have provided a copy of the certificate to the Department are exempt from this requirement.
(j) A copy of the signed resident-residence contract shall be given to the
resident and a copy shall be filed in the resident’s record.
(k) The service needs addressed in the resident’s support plan shall be available to the resident every day of the year.
(l) The resident-residence contract shall identify the assisted living services
included in the core service package the individual is purchasing and the total
price for those services. Supplemental health care services shall be packaged,
contracted and priced separately from the resident-residence contract. Services
provided by or contracted for by the residence other than supplemental health
care services must be priced separately from the service package in the residentresidence contract.
§ 2800.26. Quality management.
(a) The residence shall establish and implement a quality management plan.
(b) The quality management plan must address the periodic review and evaluation of the following, to assure compliance with law and with the relevant standard of care:
(1) The reportable incident and condition reporting procedures.
(2) Complaint procedures.
(3) Staff person training.
(4) Licensing violations and plans of correction, if applicable.
(5) Resident or family councils, or both, if applicable.
(c) The quality management plan must include the development and implementation of measures to address the areas needing improvement that are identified
during the periodic review and evaluation.
§ 2800.27. SSI recipients.
(a) If a residence agrees to admit a resident eligible for SSI benefits, the residence’s charges for actual rent and other services may not exceed the SSI resident’s actual
current monthly income reduced by the current personal needs allowance.
(b) The administrator or staff persons may not include funds received as lump
sum awards, gifts or inheritances, gains from the sale of property or retroactive
government benefits when calculating payment of rent for an SSI recipient or for
a resident eligible for SSI benefits.
(c) The administrator or staff persons may not seek or accept any payments
from funds received as retroactive awards of SSI benefits, but may seek and
accept the payments only to the extent that the retroactive awards cover periods
of time during which the resident actually resided in the residence and for which
full payment has not been received.
(d) The administrator shall provide each resident who is a recipient of SSI, at
no charge beyond the amount determined in subsection (a), the following items or services as needed:
(1) Necessary personal hygiene items, such as a comb, toothbrush, toothpaste, soap and shampoo. Cosmetic items are not included.
(2) Laundry services for personal laundry, bed linens and towels, but not
including dry cleaning or other specialized services.
(3) Assistance or supervision in ADL or IADL, or both.
(e) Third-party payments made on behalf of an SSI recipient and paid
directly to the residence are permitted. These payments may not be used for food,
clothing or shelter because to do so would reduce SSI payments. See 20 CFR
416.1100 and 416.1102 (relating to income and SSI eligibility; and what is
income). These payments may be used to purchase items or services for the resident that are not food, clothing or shelter.
§ 2800.28. Refunds.
(a) If, after the residence gives notice of transfer or discharge in accordance
with § 2800.228(b) (relating to transfer and discharge), and the resident moves
out of the residence before the 30 days are over, the residence shall give the resident a refund equal to the previously paid charges for rent, assisted living services
and supplemental health care services, if applicable, for the remainder of the
30-day time period. The refund shall be issued within 30-days of transfer or discharge. The resident’s personal needs allowance shall be refunded within 2 business
days of transfer or discharge.
(b) After a resident gives notice of the intent to leave in accordance with
§ 2800.25(b) (relating to resident-residence contract) and if the resident moves
out of the residence before the expiration of the required 14 days, the resident
owes the residence the charges for rent and assisted living services and supplemental health care services, or both, for the entire length of the 14-day time
period for which payment has not been made.
(c) If no notice is required, as set forth in subsection (d), the resident shall be
required to pay only for the nights spent in the residence.
(d) If the residence does not require a written notice prior to a resident’s
departure, the administrator shall refund the remainder of previously paid charges
to the resident within 30 days of the date the resident moved from the residence.
(e) In the event of the death of a resident under 60 years of age, the administrator shall refund the remainder of previously paid charges to the resident’s
estate within 30 days from the date the living unit is cleared of the resident’s personal property. In the event of the death of a resident 60 years of age and older,
the residence shall provide a refund in accordance with the Elder Care Payment
Restitution Act (35 P. S. §§ 10226.101—10226.107). The residence shall keep
documentation of the refund in the resident’s record.
(f) Within 30 days of either the termination of service by the residence or the
resident’s leaving the residence, the resident shall receive an itemized written
account of the resident’s funds, including notification of funds still owed the
residence by the resident or a refund owed the resident by the residence. Refunds
shall be made within 30 days of discharge.
(g) Upon discharge of the resident or transfer of the resident, the administrator shall return the resident’s funds being managed or stored by the residence to
the resident within 2 business days from the date the living unit is cleared of the
resident’s personal property.
§ 2800.29. Hospice care and services.
Hospice care and services that are licensed by the Department of Health as a
hospice may be provided in an assisted living residence.
§ 2800.30. Informed consent process.
(a) Initiation of process.
(1) When a licensee determines that a competent resident’s decision,
behavior or action creates a dangerous situation and places the competent resident, other residents or staff members at risk of harm by the competent resident’s wish to
exercise independence in directing the manner in which the competent resident receives care, the licensee may initiate an informed consent process to address the
identified risk and to reach a mutually agreed-upon plan of action with the competent resident or the resident’s designated person. The initiation of an informed
consent process does not guarantee that an informed consent agreement, which is agreeable to all parties, will be reached and
executed.
(2) When a competent resident wishes to exercise independence in directing the manner in which the competent resident receives care, the competent
the resident may initiate an informed consent process to modify the support plan
and attempt to reach a mutually agreed-upon plan of action with the licensee.
(3) An incompetent resident shall be eligible for an informed consent agreement only if the resident’s legal representative is included in the negotiation of the
informed consent agreement and executes the agreement.
(b) Notification.
(1) When the licensee chooses to initiate an informed consent process, the provider shall do so by notifying the competent resident and, if applicable, the
resident’s designated person in writing and orally. The notification must include the contact information for the ombudsman. For incompetent residents,
the ombudsman shall be automatically notified by the licensee. The notification shall be documented in the resident’s file by the licensee.
(2) When a competent resident chooses to initiate an informed consent
negotiation, the competent resident shall do so by notifying the licensee in
writing and orally. The notification shall be documented in the competent resident’s
file by the licensee. When a legal representative for an incompetent resident
chooses to initiate an informed consent negotiation, the legal representative
shall do so by notifying the licensee in writing or orally. The notification shall be
documented in the incompetent resident’s file by the licensee.
(c) Resident’s involvement. A resident who is not incompetent shall be
entitled, but is not required, to involve his legal representative and physician, and
any other individual the competent resident wants to be involved, to participate or
assist in the discussion of the competent resident’s wish to exercise independence
and, if necessary, in developing a satisfactory informed consent agreement that
balances the competent resident’s choices and capabilities with the possibility
that the choices will place the resident, other residents or staff members at risk of
harm.
(d) Informed consent meeting.
(1) In a manner the competent resident can understand, the licensee shall
discuss the competent resident’s wish to exercise independence in directing the
manner in which he receives care. The discussion must relate to the decision,
behavior or action that places the competent resident, other residents or staff
members at risk of harm and hazards inherent in the resident’s action. The discussion must include reasonable alternatives, if any, for mitigating the risk, the
significant benefits and disadvantages of each alternative and the most likely
outcome of each alternative. In the case of an incompetent resident, the incompetent resident’s legal representative shall participate in the discussion.
(2) A resident may not have the right to place other residents or staff
members at risk, but, consistent with statutory and regulatory requirements,
may elect to proceed with a decision, behavior or action affecting only his own
safety or health status, foregoing alternatives for mitigating the risk, after consideration of the benefits and disadvantages of the alternatives including his
wish to exercise independence in directing the manner in which he receives
care. The licensee shall evaluate whether the competent resident understands
and appreciates the nature and consequences of the risk, including the significant benefits and disadvantages of each alternative considered, and then shall
further ascertain whether the competent resident is consenting to accept or mitigate the risk with full knowledge and forethought.
(e) Successful negotiation. If the parties agree, the informed consent agreement shall be reduced to writing and signed by all parties, including all individuals
engaged in the negotiation at the request of the competent resident, and shall be retained in the resident’s file as part of the service plan.
(f) Unsuccessful negotiation. If the parties do not agree, the licensee shall
notify the resident, the resident’s legal representative and the individuals engaged
in the informed consent negotiation at the request of the resident. The residence
shall include contact information on the local ombudsman or the appropriate
advocacy organization and whether the licensee will issue a notice of discharge.
(g) Freedom from duress. An informed consent agreement must be voluntary
and free of force, fraud, deceit, duress, coercion or undue influence, provided that
a licensee retains the right to issue a notice of involuntary discharge in the event
a resident’s decision, behavior or action creates a dangerous situation and places
other residents or staff members at risk of harm and, after a discussion of the risk,
the resident declines alternatives to mitigate the risk.
(h) Individualized nature. An informed consent agreement must be unique to
the resident’s situation and his wish to exercise independence in directing the
manner in which he receives care. The informed consent agreement shall be utilized
only when a resident’s decision, behavior or action creates a situation and
places the resident, other residents or staff members at risk of harm. A licensee
may not require execution of an informed consent agreement as a standard condition of admission.
(i) Liability. Execution of an informed consent agreement does not constitute
a waiver of liability beyond the scope of the agreement or with respect to acts of
negligence, tort, products defect, breach of fiduciary duty, contract violation, or
any other claim or cause of action. An informed consent agreement does not
relieve a licensee of liability for violation of statutory or regulatory requirements
promulgated under this chapter nor does it affect the enforceability of regulatory
provisions including those provisions governing admission or discharge or the
permissible level of care in an assisted living residence.
(j) Change in resident’s condition. An informed consent agreement must be
updated following a significant change in the resident’s condition that affects the
risk potential to the resident, other residents or staff members.
(k) Either party has a right to rescind the informed consent agreement within
30 days of execution of the agreement.