-
DEPARTMENT OF HEALTH
NOTICE OF PROPOSED RULEMAKING
The Director of the Department of Health, pursuant to the authority set forth in section 5(a) of the Health-Care and Community Residence Facility, Hospice, and Home Care Licensure Act of 1983, effective February 24, 1984 (D.C. Law 5-48, D.C. Official Code § 44-504(a)) (hereinafter “the Act”), and in accordance with Mayor’s Order 98-137, dated August 20, 1998, hereby gives notice of the intent to adopt the following amendments to chapter 32 (Nursing Facilities) of subtitle B (Public Health and Medicine) of title 22 (Health) of the District of Columbia Municipal Regulations (DCMR). The amendments will modify the licensure, construction, and operating standards for nursing facilities, in accordance with provisions of the Health Care Facilities Improvement Amendment Act of 2010, effective April 29, 2010 (D.C. Law 18-145; 57 DCR 1834), which amended the Act to provide additional safeguards and promote improved quality of care for residents of nursing facilities.
A prior notice of proposed rulemaking was published in the D.C. Register on December 24, 2010, at 57 DCR 12251. Based on comments received in response to that notice, several minor changes were made to the proposed rules. The revised proposed rules, are published in this notice.
The rules shall be adoped in not less than thirty (30) days after the date of publication of this notice in the D.C. Register and upon completion of the forty-five (45) day Council period of review if the Council does not act earlier to adopt a resolution approving the rules.
Chapter 32, NURSING FACILITIES, of subitle B, PUBLIC HEALTH AND MEDICINE, of title 22 of the DCMR is amended as follows:
Section 3206, RESIDENT CARE POLICIES, is amended as follows:
Subsection 3206.1 is amended to read as follows:
3206.1 There shall be written policies to govern nursing care and related medical and other services provided, including written policies on:
(a) Nursing services;
(b) Physician services;
(c) Emergency care;
(d) Dental services;
(e) Ventilator services;
(f) Use of physical and chemical restraints;
(g) Infection control;
(h) Medication management;
(i) Podiatry services;
(j) Dialysis services;
(k) Recreational services;
(l) Emergency water supply;
(m) Laundry and linen management;
(n) Fire and disaster preparedness;
(o) Resident emergency and non-emergency transportation;
(p) Continuity in assigning the same nursing staff to the same residents; and
(q) Therapeutic services.
Section 3207, PHYSICIAN SERVICES AND MEDICAL SUPERVISION OF RESIDENTS, is amended as follows:
Subsection 3207.2 is amended by amending paragraphs (g) and (h) and adding a new paragraph (i) to read as follows:
(g) Assist the Administrator in arranging twenty-four (24) hours of continuous physician services a day for medical emergencies and in developing procedures for emergency medical care;
(h) Ensure that attending medical professionals who treat residents in the facility have current District of Columbia licenses and U.S. Drug Enforcement Agency and District of Columbia Controlled Substances registrations on file in the facility, along with initial and annual certifications of their freedom from communicable disease; and
(i) Ensure that each resident is seen by a physician within seventy-two (72) hours after admission and that the physician has included in the record information identified in subsection 3231.12.
Subsection 3207.6(f) is amended to read as follows:
(f) Plans for continuing care and discharge in accordance with section 3234.
New subsections 3207.14 to 3207.16 are added to read as follows:
3207.14 The facility shall make contact information of each resident’s attending physician available to facility staff as well as to each resident and his or her family, including the family designee, or legal representative upon request.
3207.15 Each facility shall obtain a medical order from a resident’s attending physician, the facility’s medical director, an on-staff physician, or an advance practice registered nurse prior to calling 911 for emergency medical assistance, except that a prior medical order shall not be required if it is determined that there is a situation that requires an immediate transfer to a hospital.
3207.16 If a nursing facility does not obtain a required medical order prior to calling 911, the facility shall document in the resident’s medical record why obtaining a medical order was not practicable.
Section 3211, NURSING PERSONNEL, is amended as follows:
The heading is amended to read as follows: “NURSING PERSONNEL AND REQUIRED STAFFING LEVELS”.
Subesections 3211.3 through 3211.12 are amended as follows:
3211.3 Beginning no later than January 1, 2005, each facility shall employ sufficient nursing staff to provide a minimum daily average of three and half (3.5) nursing hours per resident per day. Nursing staff shall include registered nurses, licensed practical nurses, and certified nurse aides.
3211.4 Beginning January 1, 2011, each facility shall have either a physician, physician assistant, or an advanced practice registered nurse, excluding hours per week attributed to medical director duties, available on-site for a minimum of two tenths (0.2) hours per week for each resident at the facility.
3211.5 Beginning January 1, 2012, each facility shall provide a minimum daily average of four and one tenth (4.1) hours of direct nursing care per resident per day, of which at least six tenths (0.6) hours shall be provided by an advanced practice registered nurse or registered nurse, which shall be in addition to any coverage required by subsection 3211.4.
3211.6 The Director may adjust the staffing requirements and formulas set forth in subsections 3211.4 and 3211.5 based on the individual needs of a nursing facility; provided, that the staffing requirements of subsection 3211.5 shall not be reduced to less than three and half (3.5) hours of direct nursing care per resident per day.
3211.7 The Director may adjust the staffing requirements set out in subsections 3211.4 and 3211.5 to require more than the stated hours of care per resident if:
(a) Inadequate staffing or inadequate supervision of a resident is cited in four (4) consecutive on-site surveys. For the purposes of this paragraph, a survey shall be an on-site inspection, complaint investigation, or monitoring or compliance visit conducted by the federal government or the District of Columbia; or
(b) It is found that a resident has suffered demonstrable harm because of inadequate staffing or inadequate supervision.
3211.8 In accordance with subsection 3211.6, in order to have staffing requirements adjusted to require less than the stated hours of care per resident as set out in subsections 3211.4 and 3211.5, a nursing facility shall submit to the Director a written request based on the particular needs of the facility.
3211.9 In making a determination on the adjustment of staffing requirements in accordance with subsection 3211.8, the Director’s determination shall be based on one (1) or more of the following:
(a) Whether the facility has undergone a system-wide culture change and the impact the facility asserts that such change has had on resident care;
(b) The acuity levels of residents and how stable those levels are based on the case mix of residents; and
(c) Any other justification related to the needs of the facility that warrants revising the staffing pattern or ratio because of:
(1) A change in program or organizational structure; or
(2) An environmental or systemic change.
3211.10 The Department shall publish each request for an adjustment of a staffing ratio in the D.C. Register no later than fifteen (15) days after the written request is received by the Director.
3211.11 The Department shall publish each determination responding to a request for an adjustment in staffing ratios in the D.C. Register no later than sixty (60) days after the written request is received by the Director.
3211.12 Each facility shall maintain an organized process that promotes continuity in assigning the same nursing staff to the same residents as often as practicable in accordance with subsection 3206.1(p). The facility shall demonstrate and allow the Director access to the process upon request.
Section 3214, IN-SERVICE EDUCATION FOR NURSING PERSONNEL, is amended by adding a new subsection 3214.7 to read as follows:
3214.7 Each nursing employee shall be trained in areas that address the special health care needs of the elderly and the needs of specific populations, including the following:
(a) Emergency procedures;
(b) Emergency transport of residents;
(c) Emergency 911 services;
(d) Disaster plans and fire evacuation plans;
(e) Race;
(f) Ethnicity;
(g) Religious affiliation;
(h) Sexual orientation;
(i) Gender; and
(j) Gender identity.
Section 3230, RESIDENT ACTIVITIES, is amended by adding a new subsection 3230.6 to read as follows:
3230.6 Based on a resident’s right to participate in resident and family groups, each facility shall make available to any resident or family group the following:
(a) Promotional and advertising assistance so that residents and residents’ family members are aware of their right to convene groups;
(b) Adequate meeting space and logistical assistance;
(c) Information regarding policies and procedures for nursing home care, resident rights and responsibilities, and laws and rules that apply to the facility and its residents;
(d) Staff for the operation of each meeting, upon request from the group; and
(e) Written feedback and responses to recommendations and grievances.
Section 3231, MEDICAL RECORDS, is amended as follows:
Subsection 3231.12 is amended to read as follows:
3231.12 Each facility shall ensure that each medical record shall include the following information:
(a) The resident’s name, age, height, weight, sex, date of birth, race, marital status, home address, telephone number, and religion;
(b) Full names, addresses, and telephone numbers of the personal physician, dentist, and interested family member, including the designated family representative, or sponsor;
(c) Medicaid, Medicare, and health insurance numbers;
(d) Social security and other entitlement numbers;
(e) Date of admission, results of pre-admission screening, admitting diagnoses, and final diagnoses;
(f) Date of discharge and condition on discharge;
(g) Hospital discharge summaries or a transfer form from the attending physician;
(h) Medical history and allergies;
(i) Descriptions of physical examinations, diagnoses, and prognoses;
(j) Rehabilitation potential;
(k) Vaccine history, if available, and other pertinent information about immune status in relation to vaccine-preventable disease;
(l) The current status of the resident’s physical and mental condition;
(m) Physician progress notes which shall be written at the time of observation to describe significant changes in the resident’s condition, when medication or treatment orders are changed or renewed or when the resident’s condition remains stable;
(n) The resident’s medical experiences upon discharge, which shall be summarized by the attending physician and shall include final diagnoses, course of treatment in the facility, essential information of illness, medications on discharge and location to which the resident was discharged;
(o) Nurse’s notes which shall be kept in accordance with the resident’s medical assessment and the policies of the nursing service;
(p) A record of the resident’s assessment and ongoing reports of physical therapy, occupational therapy, speech therapy, podiatry, dental, therapeutic recreation, dietary, and social services;
(q) The plan of care;
(r) Consent forms and advance directives; and
(s) A quarterly inventory of the resident’s personal clothing, belongings, and valuables.
A new section 3268 is added to read as follows:
3268 TEMPORARY MANAGERS AND MONITORS
3268.1 If a facility is issued a restricted or provisional license, the Director may, if he or she determines it is appropriate, appoint a temporary manager or monitor in accordance with a mutually agreed upon timetable or until the facility is found to be in substantial compliance with licensing and applicable federal participation standards.
3268.2 Except as provided in subsection 3266.4, the tenure of the temporary manager or monitor shall be concurrent with the provisional or restricted license, except that the temporary manager or monitor may be terminated when:
(a) A court determines the temporary manager or monitor is no longer necessary because the grounds on which the appointment was made no longer exist; or
(b) The facility is closing and all of its residents have been transferred or discharged.
3268.3 The temporary manager or monitor may be extended beyond the date of expiration of the provisional or restricted license if the Director determines that the temporary manager or monitor is needed until the facility closes or until the Director takes additional enforcement action on behalf of the welfare of residents.
3268.4 The Director shall not appoint as a temporary manager or monitor:
(a) An employee of a District government agency that licenses, operates, or provides a financial payment to any nursing facility licensed in the District of Columbia;
(b) A former employee of the facility unless agreed to by the facility;
(c) The owner, licensee, or administrator of the facility, or an affiliate of the owner, licensee, or administrator; or
(d) A parent, child, grandchild, spouse, domestic partner, sibling, first cousin, aunt, or uncle of one of the facility’s residents, whether the relationship arises by blood, marriage, domestic partnership, or adoption. For the purposes of this subparagraph, the term “domestic partner” shall have the same meaning as provided in D.C. Official Code § 32-701(3), and the term “domestic partnership” shall have the same meaning as provided in D.C. Official Code § 32-701(4).
3268.5 A temporary manager shall:
(a) Take charge of or oversee the operation and management of the facility;
(b) Give notice of the temporary management to the facility’s residents and employees, each resident’s representative, the Long-Term Care Ombudsman, and any other person whom the Director orders must receive notice;
(c) Exercise his or her powers to correct the conditions that prompted the need for temporary management;
(d) Unless the facility is closing, take all steps necessary to achieve, maintain, or restore District licensure and federal Medicare/Medicaid certification;
(e) Preserve all property and records with which he or she is entrusted;
(f) Report to the Director at intervals to be determined by the Director as to the progress of the facility in reaching substantial compliance with licensing and federal certification standards; and
(g) Carry out any other duties established by the Director.
3268.6 A monitor shall:
(a) Observe the operation of the facility;
(b) Advise the facility on how to comply with licensing and federal participation standards;
(c) Give notice of the monitor to the facility’s residents and employees, each resident's representative, the Long-Term Care Ombudsman, and any other person whom the Director orders must receive notice; and
(d) Report to the Director and the owner of the facility at intervals to be determined by the Director as to the progress of the facility in reaching substantial compliance with licensing and federal participation standards.
3268.7 The temporary manager or monitor shall operate at the expense of the facility.
3268.8 Appointment of a temporary manager or monitor shall commence by notice from the Director to the facility. The notice shall include:
(a) A statement of the grounds for the action; and
(b) Notification that the facility may, within seven (7) business days after the day written notice is received, file with the Office of Administrative Hearings a written request for an expedited hearing. An expedited hearing shall be conducted within three (3) business days of a timely request.
3268.9 A request for a hearing shall not serve to stay the appointment of the temporary manager or monitor.
A new section 3269 to read as follows:
3269 RESIDENTS’ RIGHTS
3269.1 Each resident in a nursing facility shall have the right to the following:
(a) Freedom from discrimination in treatment or access to services based on reasons prohibited by the Human Rights Act of 1977, effective December 13, 1977 (D.C. Law 2-38; D.C. Official Code §§ 2-1401.01, et seq.);
(b) To be fully informed by the nursing facility of all resident rights and all facility rules governing resident conduct and responsibilities upon admission and annually thereafter;
(c) To either manage his or her own personal finances, or be given a quarterly report of the his or her finances if this responsibility has been delegated in writing to the nursing facility;
(d) To be treated with respect and dignity and assured privacy during treatment and when receiving personal care;
(e) To not be required to perform services for the nursing facility that are not for therapeutic purposes, as identified in the plan of care for the resident;
(f) To associate and communicate privately with persons of the resident’s choice, unless medically contraindicated;
(g) To send and receive personal mail, unopened by personnel at the nursing facility;
(h) To participate in activities of social, family, resident, religious, and community groups at the discretion of the resident, unless medically contraindicated;
(i) To keep and use personal clothing and possessions, as space permits, unless to do so would infringe on other residents’ rights or is medically contraindicated;
(j) To maintain, at the nursing facility, a private locker, chest, or chest drawer that is large enough to accommodate jewelry and small personal property and that can be locked by the resident;
(k) To be provided with privacy for visits by the resident’s spouse or domestic partner, or, if spouses or domestic partners are both residents in the nursing facility, be permitted to share a room, unless medically or psycho-socially contraindicated;
(l) To be free from mental or physical abuse;
(m) To be free from chemical and physical restraints except as authorized pursuant to federal or District law and regulation;
(n) To be discharged from the nursing facility after receiving a consultation from a physician of the medical consequences of discharge; and
(o) Providing the administrator, physician, or a nurse of the nursing facility with written notice of the desire to be discharged; provided, that if the resident is a minor or a guardian has been appointed for a resident, the written request for discharge shall be signed by the resident’s guardian, unless there is a court order to the contrary.
A new section 3270 is added to read as follows:
3270 DISCHARGE PLANNING
3270.1 A transfer or discharge of a resident from a nursing facility shall be done in accordance with the Nursing Home and Community Residence Facility Residents’ Protection Act of 1985, effective April 18, 1986 (D.C. Law 6-108; D.C. Official Code §§ 44-1003.01, et seq.).
3270.2 The facility shall conduct a discharge assessment of each resident within fourteen (14) days after admission and twice annually thereafter. The discharge assessment shall include:
(a) A timeframe for discharging the resident to return home or to another facility; and
(b) If the resident is likely to be discharged within six (6) months after the discharge assessment, a discharge plan.
3270.3 Upon oral and written notification of discharge, the nursing facility shall provide to the resident and his or her representative:
(a) A current assessment of the resident’s care needs and the kind of services and supports the resident will need upon discharge;
(b) Information about the resident’s right to receive counseling that explains the resident’s options of community-based care and care in the home, including the right to request that the facility arrange a visit to at least one (1) alternative community-based care facility; and
(c) A discharge plan that:
(1) Links the resident with community resources, including the District of Columbia Aging and Disability Resource Center;
(2) Explains the resident’s options of community-based care and care in the home, including the right to request that the facility arrange a visit to at least one (1) alternative community-based care facility; and
(3) Sets forth an arrangement for the resident and an immediate family member or legal representative, if any, to visit at least one (1) alternative community-based care facility, at the resident’s request.
A new section 3271 is added to read as follows:
3271 PROVISION OF ON-SITE SERVICES
3271.1 For the purpose of reducing the need to transport residents off-site for routine health services, each facility shall provide needed services on-site if the Department has determined that the provision of such on-site services is appropriate. On-site services that may be required by the Deparatment include:
(a) Podiatry;
(b) Rehabilitative services, such as physical therapy, speech therapy and
occupational therapy;
(c) Wound care;
(d) Mental health; and
(e) Substance-abuse treatment.
3271.2 Each facility shall provide dialysis services on-site if the Department has determined that the provision of such services on-site is appropriate and the facility has been issued a Certificate of Need authorizing the provision of on-site dialysis services.
3271.3 In order to operate a substance-abuse treatment program wherein the facility administers a narcotic, such as methadone, to manage addiction, the facility would have to be registered with the Department of Justice, Drug Enforcement Administration as a Narcotic Treatment Program. If the facility is not registered with the Drug Enforcement Administration, any resident who is treated for addiction with the administration of a narcotic, must be so treated as a patient of a certified Narcotic Treatment Program.
3271.4 In any substance-abuse treatment program that does not use the administration of a narcotic to manage addiction, as referred to in subsection 3271.3, the resident’s participation shall be kept private and any and all records related to a resident’s participation shall be confidential. The facility shall include in its operating policies and procedures, protocols on maintaining privacy and confidenetiality.
3271.5 Persons who provide counseling to participants in substance abuse treatment programs shall be qualified and certified to do so by and in accordance with standards of the D.C. Board of Professional Counseling.
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 899 North Capitol St., N.E., 2nd Fl., Washington, DC 20002, within thirty (30) days after the date of publication of this notice in the D.C. Register. Additional copies of this rulemaking are available from the above address.
