Proposed Regulations

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PA Assisted Living Consumer Alliance Comments on Interim Regulations

Here are the PALCA comments to the interim draft assisted living regulations released by the Office of Long Term Living.

PALCA is a coalition of organizations and Pennsylvanians that formed in January 2008 to ensure that the concerns of consumers are heard in the formation of Assisted Living licensure rules for Pennsylvania.  Organizations participating in the Alliance include:

We are pleased that we have been provided the opportunity to comment on an interim draft.  We would also like to strongly commend the Office of Long Term Living for the critical improvements made in this draft.

While we believe that several additional improvements are necessary, as we outline below, the Department is clearly on the right track.  We are very pleased that the interim draft:

  • requires assessments and support plans to be completed prior to admission, in most cases, laying out the care needs of the new resident and the plans for addressing them 

  • requires the support plan to be included as part of the resident’s contract

  • defines core benefits packages that facilities must offer, thereby allowing consumers to make meaningful comparisons among facilities and to make educated admissiondecisions

  • articulates clear parameters for when a facility can be dually licensed as both an assisted living facility and another type of facility and

  • adopts several critical training topics for administrators and direct care staff.

Although the interim draft moves the assisted living regulations very much in the right direction, some important changes recommended by PALCA were not made. In particular, we urge the Department to address several major outstanding quality of life and quality of care issues in the final regulations which we lay out below, in addition to some drafting errors. 

Drafting Errors:

We spotted the following drafting errors in our review of the interim draft:

  1. The definition of “assessment” we believe requires correction.  The interim draft defines assessment as if it were a pre-admission screening tool to determine whether a consumer is appropriate for assisted living.  However, the subsequent sections on assessment all reflect an understanding that an assessment is more than just a tool to determine whether a consumer is appropriate for the assisted living admission and is instead a full evaluation of various needs and preferences that influence what care a resident receives. 

  2. The language in 2800.22 still includes the possibility that a medical evaluation could be completed 15 days after admission.  However, the subsequent section on medical evaluations at 2800.141 references only the “60 days prior” timeframe.  We do not support medical evaluations occurring 15 days after admission.  Additionally, allowing 15 days following admission for medical evaluations would not work with the timeframes established for initial assessments and support plans.

  3. We believe it must be an error that 2800.30 only allows a consumer to rescind an informed consent agreement within 30 days of signing it.  It is unimaginable that 6 months into such an agreement, the consumer cannot choose to terminate it.  Of course, a consumer who decides he would rather refrain from the action or inaction upon which his informed consent agreement was premised should be allowed to do so and should be released from the informed consent agreement. 

  4. The language in 2800.56 allowing the designee or administrator to be on site at least 30 hours a week is unworkable and must be corrected.  As now written, a designee with the same training as an administrator must be onsite anytime the administrator is not.  However, (a) appears to permit the designee to wholly replace the administrator and undo any obligation for the administrator ever to be onsite.  Surely the Department does not intend (a) to eliminate any requirement that the administrator ever be on site, as long as the facility has a designee present.   We note that the proposed provision is less stringent than the equivalent personal care home regulation, and as such violates the statutory requirement that the Department enact assisted living regulations which are at least as protective as those for personal care homes.  The reason for the enactment of the regulation requiring that PCH administrators be present a minimum number of hours per week was repeated incidents of poor care and management in facilities where the “administrator” was almost never present and left the day to day running of the facility to a designee.   We would wholly object to this significant change from the proposed regulations.  Additionally, the language in (a) as it relates to designees makes no sense as how could one reconcile a provision requiring a designee on site 30 hours a week with the requirement in (b) that there be a designee on site at all times the administrator is not.  We recommend the words “or designee” be removed.  At all times there must be an administrator or designee who has satisfactorily completed the administrator training on site.  The facility must have one specified administrator and this person must be onsite a minimum of x hours a week.

  5. While we are pleased that additional training topics were added for the administrator, we cannot imagine how all of the training topics listed could be adequately covered in just 100 hours.  Likewise, we are concerned about the number of hours overtaking the importance for assuring that adequate training happens in all modules.  It must be an error to fix the hours at the same amount required of PCH administrators while at the same time requiring training on several additional topics.  We would like to see the hours increased substantially beyond 100 hours, to somewhere closer to 150 hours.   We strongly encourage a correction that adds in the words “at least” so that the regulations requires “at least 150” hours in the following topic areas.  This way, the number or necessary hours are increased and the substance of the training will hold priority over the number of training hours.

Quality of Life Issues:

We cannot imagine residents would have a good quality of life when they are forced to share a dresser, night stand, and lamp with their roommate.  There is no dignity or privacy in such an arrangement and it should not be permissible.   The provisions of 2800.101 should be revised accordingly to require each resident have his/her own furniture to use.

Where is the qualify of life if there are never enough staff around to help residents when they need assistance, requiring them to lay in wait crying out for help?   The staffing levels must be changed to require a minimum of 2 hours of staff time per resident with the actual staffing hours above 2 hours per resident per day to be based on the assessed needs of the residents using an assessment tool development by the Department.

What quality of life will residents have when the common areas and hallways are not required to be accessible thus excluding wheelchair users from activities that may be occurring in the inaccessible rooms?  All common areas and hallways in facilities must be accessible.   Likewise, because existing facilities are allowed to have inaccessible rooms sized at only 175 square feet, residents will be forced, as many are now, to wait in bed for an aide to come and transfer them because they do not have enough room to roll their wheelchair next to the bed and  self-transfer.  We urge the increase in room sizes to 250 sq ft for all living units.

The final regulations must require that service animals be permitted in the facility when required to meet a resident’s needs.  Arguably, federal laws require these admissions but leave to the resident the onus of individually challenging her denied access to a service animal.  These regulations must recognize the immeasurable value service animals add to independence and quality of life for those residents who need them.   For this reason, we urge 2800.109 be revised to require that facilities admit service animals.

There is a serious negative impact on residents’ quality of life when meals are not planned and overseen by a dietician able to use nutrition planning to enhance and facilitate overall health and wellness.   While it is good to require that a dietician be consulted for consumers whose assessments uncover needs for special diets, this doesn’t assure that menu planning and food preparation for those individuals will comport with the special diet, nor will it have any impact on maximizing the health and wellness of other residents.  We have received complaints about elderly residents gaining 30+ pounds above their lifetime weight due to their facility’s poorly implemented menus.  We have heard complaints of special diets being addressed with healthy sized portions of vegetables which are rendered unhealthful when drowned in heaping portions of cream sauce.  A dietician must be involved in a facility’s meal planning and in oversight of meal preparation.

The interim draft, as the proposed draft before it, contains no clear articulation of residents’ rights and no mechanism through which to challenge the facility’s decisions about charges, provision of care and grounds for discharge.  These pose quality of life challenges and health and safety worries, all of which are surmountable by clearly delineating all of a resident’s rights upon application, during residency and during discharge as well as by providing a fair mechanism through which to challenge the facility’s decisions.    Absent these, residents live under a regime of fear of retaliatory eviction that is both real and well-founded.

Health and Safety Issues:

Resident health and safety cannot be assured when fire safety standards do not go beyond the existing rules for personal care homes (which involve treating these facilities like hotels and college dorms).   We urge the adoption of the NFPA Life Safety 101 for Assisted Living in Pennsylvania.  We also firmly believe that the ceiling height provision in 2800.101 is both a health and safety issue and a quality of life issue.  While we absolutely recognize that some rooms may have sloped ceilings or dormers near which the ceiling height is not 7ft, it is unacceptable to set a ceiling height at an average of 7 feet.  In application this could mean one room at 9 feet ceiling, one at 5.5 ft.  It is just unsafe and uncomfortable for anyone living there.  The 7 ft number also makes little sense given how construction actually occurs, since drywall for the walls comes in 8ft pieces. Living units must all have no less than 7 ft and NOT an average of 7 feet.  Rooms that have sloped ceilings or dormers should not be excluded from being used for residents, but instead, the room’s size must be measured so as to exclude any space where the ceiling height is less than 7 feet.

Section 2800.203 must be struck in its entirety (not just striking (b) as was done in the interim draft) with 2800.202 clearly referencing bedrails as an impermissible restraint. In the alternative, 203(b) must be retained and revised to include the language from the statement of policy for personal care home use of half-length bedrails.  As currently written, 2800.203 is unworkable and objectionable.  While we were willing to concede to the industry’s recommended deletion of the entire section and an outright prohibition on restraints in section 2800.202 during our negotiation sessions, if the department is determined to include any part of the section 2800.203, it must also include (b) along with the additional language DPW adopted in response to the 4 bedrail deaths that occurred in the Commonwealth.

We do not believe that health and safety can be guaranteed when the facility can dictate all healthcare providers used by a resident except for their primary care physician.   While strongly urging the revocation of provision 1057.3 (a)12 in Act 56, we press the Department to do a better job of clarifying the appropriate (and thus precluding the inappropriate) use of this provision.

Health and safety cannot be assured when only one first aid kit is required in a building, regardless of its size.  These kits are not expensive, especially now that the interim draft does not require that they include an AED.   There must be no less than one per floor and more if the floor has many resident living units.

Health and safety are not protected when direct care staff persons are given so few hours of initial training or when so few hours of direct care staffing are provided to care for residents.  Lack of training and insufficient staff to meet residents’ needs are the most common problems consumers and their loved ones complain about when they write to PALCA.    We believe the minimum number of hours of training for direct care staff must be increased beyond 18 hours.  We strongly recommend 75 hours of initial training and urge the Department to use, as we urged on page 2 above, the words “at least 75 hours” so that the topics covered take regulatory priority over the fixed number of hours. Making these changes will assure that if a new issue comes up that requires training existing topics don’t have to be skipped or short-changed to make room and time for the new topics.

The health and safety of our loved ones cannot be guaranteed when care needs are only assessed annually.  While the facility must “review” the support plan quarterly, this is not the same thing as “reviewing” the resident and her needs and preferences.  We feel very strongly that care needs must be reassessed on a more regular basis and continue to press that these reassessments be done quarterly, as well as immediately following a hospitalization or a significant change in the resident’s condition.

Please do not hesitate to contact us through the leader of the Alliance, Alissa Halperin at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or at 215-435-3257.

Alliance members and supporters have less than a week to submit comments since the Office of Long Term Living will accept comments by close of business on Friday, July 24, 2009. The state is asking for comments to be submitted in a Microsoft Word document and prefers to receive them by e-mail. Comments may be submitted to the Office of Long Term Living via e-mail at: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

or via mail at:

  Office of Long Term Living
  Bureau of Policy and Strategic Planning
  P.O. Box 2675
  Harrisburg, PA 17105
  Attention: Bill White

The lists of good and bad things about the interim draft below should serve as a guide as you formulate your comments.

Click here to download the PDF document (Interim Regulations Good list)

Click here to download the PDF document (Interim Regulations Bad list)

Urgent Regulations Update

On June 24, the Office of Long Term Living released the interim draft Assisted Living Regulations to stakeholders and interested persons.  This draft is available here:  Document-12700.pdf.  This is just an interim draft and the state is accepting comments on last changes to make prior to publishing their final draft in the months ahead.

We have reviewed it along side the proposed regulations.  There are many good changes.  These are listed here:

However, there are still some major outstanding issues that need to be resolved so that consumers can be well-served in Pennsylvania’s assisted living facilities.  These are listed here:

Comments may be submitted to the Office of Long Term Living via e-mail at: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

or via mail at:

  Office of Long Term Living
  Bureau of Policy and Strategic Planning
  P.O. Box 2675
  Harrisburg, PA 17105
  Attention: Bill White

Comments must be submitted by close of business on Friday July 24, 2009.  Additionally, the state is asking for comments to be submitted in a Microsoft Word document and prefers to receive them by e-mail.

We strongly encourage folks to submit their support for the good things that have been done and their opinion that more needs to be done to make these regulations good enough for the people we love.

The Interim Regulations include several significant improvements over the proposed regulations. This considerably improves the regulatory package and we are very pleased with these additions.

Click here to download the PDF document (Interim Regulations Good list)

Click here to download the PDF document (Interim Regulations Bad list)

February 5, 2009 Expected publication of final regulations in mid-November 2009:

Here is the status of the Assisted Living Residence regulations and information regarding the timeframe the Department of Public Welfare (DPW) is using to finalize the regulations.

  • DPW is reviewing the comments received from all interested parties on the proposed regulations to determine what amendments will be made in the final regulation package. A final draft of the regulations will be ready by the end of February 2009.

  • DPW will disseminate the final draft to the Assisted Living Residence workgroup for its review and comment.

  • The workgroup will have a 30-day period for comment and review.

  • DPW then will review the comments received from the Assisted Living Residence workgroup members and make amendments to the package.

  • The final regulation package will then be prepared and submitted into the formal regulatory review process.

  • Based on the submission of the regulation package into the review process by the end of May 2009, the DPW will submit the regulations to the IRRC by the end of August 2009.

  • The expected publication date of the final regulations is mid-November 2009.

October 21, 2008 Announcement from the Department of Public Welfare:

On October 21, 2008, Department of Public Welfare (DPW) announces that the final regulations will not be published before the end of 2008 and that the final-form regulations should be expected to be published in early 2009 and, they hope, to take effect in July 2009.

October 15, 2008 IRRC Comments:

The Independent Regulatory Review Commission issued its formal comments to the proposed regulations on October 15th.  Click here to view the IRRC comments.

September 18, 2008 Testimony: 

Alissa Halperin of PALCA testified before the House Aging and Older Adult Services Committee on the Department of Public Welfare’s Proposed Assisted Living Regulations.  Read the testimony of other PALCA members and all those who testified at the 9/18 hearing here.

September 15 Deadline for Public Comment:

The public comment period on the proposed regulations ended on September 15. Click here to view the public comments submitted by all commentators.

PALCA Submits Comments to DPW & IRRC

On September 10, PALCA submitted comments on the proposed assisted living regulations to the Department of Public Welfare and the Independent Regulatory Review Commission.  Read them here.

Proposed Regulations

On August 9, 2008, the Department of Public Welfare published the Proposed Assisted Living Regulations #14-514.  The regulations fall far short of what is needed to ensure that Pennsylvania’s elderly and those with disabilities receive adequate care in safe surroundings.

To view the regulations, click here: http://www.irrc.state.pa.us/Documents/SRCDocuments/Regulations/2712/AGENCY/Document-10301.pdf

The regulations for personal care homes served as the platform from which the state proposes to build assisted living licensure.  We note, at the outset, that several of the proposed requirements represent crucial enhancements to the personal care home regulatory requirements.  These are essential changes for meeting the care needs of the population that assisted living residences are intended to serve.  These are changes we wholly support. However, more provisions were left exactly the same as in the personal care home system, even though changes are critical for ensuring that assisted living facilities are able to safely serve Pennsylvania’s assisted living consumers.

Fundamental changes must be made to the proposed regulations before they are finalized to ensure that assisted living facilities are equipped, enabled, and accountable for providing all residents with quality care, provided by appropriate numbers of adequately trained staff in a home-like setting that is safe, accessible, and stimulating.

 

We do not believe that the regulations make sufficient strides towards 1) meeting residents’ care needs, 2) guaranteeing that all consumers have meaningful rights of which they are aware, and that they are free to exercise their rights, 3) assuring a safe and accessible physical site, 4) ensuring care is provided by appropriate numbers of adequately trained staff, and 5) responding to critical unanswered questions that the public needs answered.

 

We encourage you to learn more by clicking on the following links, which provide: