-
DEPARTMENT OF HEALTH
NOTICE OF FINAL RULEMAKING
The Director of the Department of Health, pursuant to the authority set forth in section 402 of the Assisted Living Residence Regulatory Act of 2000, effective June 24, 2000 (D.C. Law 13-127, D.C. Official Code § 44-104.02), Mayor's Order 2005-137, dated September 27, 2005, section 104 of the Department of Consumer and Regulatory Affairs Civil Infractions Act of 1985, effective October 5, 1985 (D.C. Law 6-42, D.C. Official Code § 2-1801.04), Mayor's Order 99-68, dated April 28, 1999, and Reorganization Plan No. 4 of 1996., hereby gives notice of the intent to adopt the following amendments to Chapter 36 (Civil Infractions) of Title 16 of the District of Columbia Municipal Regulations (DCMR). The amendments prescribe civil infraction fines for violations of the law governing the licensing and operating standards of assisted living facilities.
The proposed rulemaking was published in the D.C. Register on August 8, 2008 at 55 D.C. Register 8532 and the comment period was extended on October 3, 2008. The Department received three (3) sets of comments which resulted in several revisions to the rulemaking. A revised Proposed Rulemaking was published for comment on July 10, 2009 at 56 D.C. Register 5592. No comments were received. No changes were made to the July 2009 Proposed Rulemaking. The required sixty (60) day Council period of review was completed on March 7, 2010, deeming them approved without Council action.
Chapter 36 (Civil Infractions) of Title 16 DCMR is amended by adding a new section 3663 to read as follows:
3663 LICENSING OF ASSISTED LIVING FACILITIES
3663.1 Violation of any of the following provisions shall be a Class 1 infraction:
(a) D.C. Official Code § 44-103.01 (operating an assisted living facility without a license);
(b) D.C. Official Code § 44-103.07(b) (describing, marketing or offering a business as an assisted living facility without having obtained a license);
(c) D.C. Official Code § 44-105.09(a) (failure to develop and implement policies and procedures on abuse, neglect and exploitation of residents);
(d) D.C. Official Code § 44-105.09(b)(1) and (b)(2) (failure to report abuse of a resident);
(e) D.C. Official Code § 44-105.09(b)(3) (failure to thoroughly investigate an allegation of abuse, neglect or exploitation against a resident; failure to take preventive action; failure to report results of investigation);
(f) D.C. Official Code § 44-106.01(a) (accepting a resident for whom the facility cannot provide appropriate services or failure to make or allow arrangements with a third party to provide appropriate services);
(g) D.C. Official Code § 44-106.01(b) (failure to determine that a resident is appropriate for admission and that the resident's needs can be met in addition to the needs of other residents);
(h) D.C. Official Code § 44-106.01(c) (admitting an individual who is younger than eighteen (18) years of age);
(i) D.C. Official Code § 44-106.01(d)(1) (admitting an individual who upon admission is dangerous to him or herself or others);
(j) D.C. Official Code § 44-106.01(d)(2) (admitting an individual who is at high risk for health or safety complications and who requires more than thirty-five (35) hours per week of skilled nursing and home care services combined);
(k) D.C. Official Code § 44-106.01(e) (admitting an individual who requires more than intermittent skilled nursing care, treatment of stage three (3) or four ulcers, ventilator services or treatment for an active, infectious and reportable disease or condition that requires more than contact isolation);
(l) D.C. Official Code § 44-106.02 (failure to provide a written contract to the resident that the resident or representative signs prior to admission);
(m) D.C. Official Code § 44-106.04(a) (failure to develop an Individualized Service Plan (ISP) for a resident prior to admission);
(n) D.C. Official Code § 44-106.04(e) (failure to appropriately transfer resident when appropriate services cannot be provided);
(o) D.C. Official Code § 44-106.07 (failure to provide twenty-four (24) hour supervision, three (3) nutritious meals per day, fresh and seasonal foods assistance with Activities of Daily Living (ADL) and Instrumental Activities of Daily Living (IADL), laundry and housekeeping services, access to appropriate health and social services and transportation or arrangement for transportation to community-based services);
(p) D.C. Official Code § 44-106.08(e) (failure to comply with provisions on discharge);
(q) D.C. Official Code § 44-107.01(a) (failure to have the assisted living residence supervised by an assisted living administrator who is responsible for all personnel and services);
(r) D.C. Official Code § 44-107.01(b) (failure of the assisted living administrator to ensure that each resident has access to appropriate medical, rehabilitation, psychosocial services, oversight and monitoring);
(s) D.C. Official Code § 44-108.01 (failure to complete a resident assessment that will be the basis of the resident's service plan);
(t) D.C. Official Code § 44-108.02(a) (failure to complete a medical, rehabilitation and psychosocial assessment within thirty (30) days prior to admission);
(u) D.C. Official Code § 44-108.02(c) (failure to obtain the appropriate examination from the resident's primary health practitioner within thirty (30) days prior to admission); and
(v) D.C. Official Code § 44-108.04 (for individuals who will be admitted for no longer than thirty (30) days, failure to obtain an analysis of the resident's physical condition, medical status and functional assessment and as well as a resident agreement).
(x) D.C. Official Code § 44-107.01(e) (failure of newly hired staff to timely document their communicable disease status);
(y) D.C. Official Code § 44-107.01(f) (failure of employee to document annual freedom from tuberculosis in a communicable form);
(z) D.C. Official Code § 44-107.01(h) (allowing an employee who has not completed training to work unsupervised by a trained person);
(aa) D.C. Official Code § 44-110.02 (failure to comply with fire safety requirements);
(bb) D.C. Official Code § 44-108.05 (failure to comply with requirements on emergency placements);
(cc) D.C. Official Code § 44-109.01 (failure to comply with requirements on medication management); and
(dd) D.C. Official Code § 44-109.02 (failure to comply with requirements on medication management assessments).
3663.2 Violation of any of the following provisions shall be a Class 2 infraction:
(a) D.C. Official Code § 44-103.02 (failure to comply with initial license and application requirements) ;
(b) D.C. Official Code § 44-103.04 (failure to comply with license and application requirements for license renewals);
(c) D.C. Official Code § 44-103.07 (using the word "hospital", "nursing", "sanitorium", "convalescent", "rehabilitative", "subacute" or "hospice" in the facility's title);
(d) D.C. Official Code § 44-105.01 (failure to care for residents in a manner and in an environment that promotes maintenance and enhancement of the residents' quality of life and independence by providing or arranging for twenty-four (24) hour supervision and assistance in activities of daily living);
(e) D.C. Official Code § 44-105.02 (failure to comply with requirements on self-determination, choice, independence, participation and privacy);
(f) D.C. Official Code § 44-105.03 (failure to comply with requirements on residents' dignity);
(g) D.C. Official Code § 44-105.04 (failure to comply with requirements on accommodation of needs);
(h) D.C. Official Code § 44-105.05 (failure to comply with requirements on representation and resolution of grievances and complaints);
(i) D.C. Official Code § 44-105.06 (failure to comply with requirements on privacy and confidentiality);
(j) D.C. Official Code § 44-105.07 (failure to disclose fair and reasonable contract terms and billing practices);
(k) D.C. Official Code § 44-105.08 (failure to post and distribute notice of residents' rights);
(l) D.C. Official Code § 44-105.09(c) (failure to post policies and procedures on prohibiting abuse, neglect and exploitation of residents);
(m) D.C. Official Code § 44-106.01(f) (failure to maintain records on denial of admissions);
(n) D.C. Official Code § 44-106.01(g) (automatically excluding from admission a person with primary or secondary metal health issues);
(o) D.C. Official Code § 44-106.04(b) (failure to require items in the ISP);
(p) D.C. Official Code § 44-106.04(c) (failure to confer with resident or surrogate during the ISP development process);
(q) D.C. Official Code § 44-106.04(d) (failure to timely and appropriately review and update ISP);
(r) D.C. Official Code § 44-106.05 (failure to comply with requirements on shared responsibility agreements);
(s) D.C. Official Code § 44-106.06 (failure to comply with requirements on residents' records);
(t) D.C. Official Code § 44-106.08(b) (failure to give appropriate timely notice when there is an immediate transfer of a resident);
(u) D.C. Official Code § 44-106.08(c) (failure to renegotiate an ISP after a resident has been immediately transferred);
(v) D.C. Official Code § 44-106.08(d) (failure to give appropriate and timely notice of discharge);
(w) D.C. Official Code § 44-107.01(c) (failure of ALA to be at least twenty-one (21) years of age);
(x) D.C. Official Code § 44-107.01(c)(2) (failure of ALA to have requisite education and experience);
(y) D.C. Official Code § 44-107.01(c)(3) (failure of ALA to have requisite satisfactory knowledge);.
(z) D.C. Official Code § 44-107.01(d) (failure to employ staff and develop a staffing plan based on required criteria to assure the safety and proper care of residents);
(aa) D.C. Official Code § 44-107.01(g) (failure of staff to have requisite qualifications and experience);
(bb) D.C. Official Code § 44-107.02 (failure to comply with requirements on staff training);
(cc) D.C. Official Code § 44-109.03 (failure to comply with requirements on on-site medication review);
(dd) D.C. Official Code § 44-109.05 (failure to comply with requirements on medication administration);
(ee) D.C. Official Code § 44-110.01 (failure to comply with other applicable laws, regulations and codes);
(ff) D.C. Official Code § 44-110.03 (failure to comply with requirements on the building exterior);
(gg) D.C. Official Code § 44-110.04 (failure to comply with requirements on the building interior);
(hh) D.C. Official Code § 44-110.05 (failure to comply with requirements on accessibility);
(ii) D.C. Official Code § 44-110.10 (failure to comply with requirements on laundry);
(jj) D.C. Official Code § 44-110.11 (failure to comply with requirements for seventeen (17) beds or more); and
(kk) D.C. Official Code § 44-111.01 (failure to comply with requirements on insurance).
(ll) D.C. Official Code § 44-108.02 (failure to have a medical, rehabilitation and psychosocial assessment of the resident done 30 days prior to admission and/or failure to maintain the appropriate assessment information);
(mm) D.C. Official Code § 44-109.04 (failure to comply with requirements on medication storage); and
(nn) D.C. Official Code § 44-109.07 (failure to comply with requirements on medication control).
3663.3 Violation of any of the following provisions shall be a Class 3 infraction:
(a) D.C. Official Code § 44-103.05(b) (failure to timely submit a written request for a change in the license or to pay the license fee);
(b) D.C. Official Code § 44-103.05(c) (failure to notify residents of a request for change in licensure);
(c) D.C. Official Code § 44-106.03 (failure to comply with requirements on financial agreements);
(e) D.C. Official Code § 44-108.01(c)(1) (failure to include a medical history with a resident's recent evaluation);
(f) D.C. Official Code § 44-108.03 (failure to comply with requirements on functional assessments);
(i) D.C. Official Code § 44-110.06 (failure to comply with requirements on bathrooms);
(j) D.C. Official Code § 44-110.07 (failure to comply with requirements on heat, light and ventilation);
(k) D.C. Official Code § 44-110.08 (failure to comply with requirements on bedrooms); and
(l) D.C. Official Code § 44-110.09 (failure to comply with kitchen requirements).
Comments on this proposed rulemaking should be submitted, in writing, to Feseha Woldu, Ph.D., Senior Deputy Director, Health Regulation and Licensing Administration, Department of Health, at 717 14th Street, Suite 600, Washington, DC. 20005, within thirty (30) days of the date of publication of this notice in the D.C. Register.
Additional copies of this rulemaking are available from the above address.
