910 KAR 1:240 - Certification of assisted-living communities
RELATES TO: KRS Chapter 13B, 17.165(1), (2), 194A.060(1), 194A.700-729, 209.030, 216.300(1), 216.595, 216.789, 216.793
NECESSITY, FUNCTION, AND CONFORMITY: KRS 194A.050(1) requires the Cabinet for Health and Family Services to promulgate administrative regulations necessary under applicable state laws to protect, develop, and maintain the health, personal dignity, integrity, and sufficiency of the individual citizens of the commonwealth. KRS 194A.707(1) and (2) require the cabinet to promulgate an administrative regulation establishing an initial and annual certification review process for assisted-living communities that shall include an on-site visit and procedures related to applying for, reviewing, and approving, denying, or revoking certification, as well as the conduct of hearings upon appeals as governed by KRS Chapter 13B. This administrative regulation establishes the certification process for assisted-living communities.
Section 1.
Definitions.
(1) "Activities of daily living"
is defined by
KRS
194A.700(1).
(2) "Ambulatory" means the ability to walk
without assistance.
(3) "Applicant"
means the owner or manager who represents a business seeking initial or annual
certification as an assisted-living community.
(4) "Assisted-living community" is defined by
KRS
194A.700(4).
(5) "Certification review" means the process
of reviewing applications and issuing certification for an assisted-living
community.
(6) "Client",
"resident", or "tenant" is defined by
KRS
194A.700(5).
(7) "Client's designated representative"
means a person identified in a document signed and dated by the client,
client's guardian, or attorney-in-fact identifying a representative authorized
to prepare or direct medication pursuant to
KRS
194A.700(3).
(8) "Danger" is defined by
KRS
194A.700(6).
(9) "Functional needs assessment" means the
client data required by
KRS
194A.705(5)(a) and
(b).
(10) "Instrumental activities of daily
living" is defined by 194A.700(9).
(11) "Licensed healthcare professional" is
defined by
KRS
216.300(1).
(12) "Living unit" is defined by
KRS
194A.700(10).
(13) "Mobile non-ambulatory" is defined by
KRS
194A.700(11).
(14) "Plan of correction" is defined by
KRS
194A.700(12).
(15) "Statement of danger" is defined by
KRS
194A.700(13).
(16) "Statement of noncompliance" is defined
by
KRS
194A.700(14).
(17) "Temporary condition" means a condition
that affects a client as follows:
(a) The
client loses mobility either before or after entering a lease agreement with
the as-sisted-living community but is expected to regain mobility within six
(6) months of loss of ambu-lation or mobile nonambulation; is documented by a
licensed healthcare professional who is not the owner, manager, or employee of
the assisted-living community; and the assisted-living community has a written
plan in place to ensure that the client is not a danger; or
(b)
1. The
client loses mobility after entering a lease agreement;
2. The client is not expected to regain
mobility;
3. Hospice or similar
end-of-life services are provided in accordance with
KRS
194A.705(2) documented by
hospice or a licensed health care professional; and
4. The assisted-living community has a
written plan in place to ensure that the client is not a danger.
Section 2.
Application and Fees for Initial Certification Review.
(1) For initial certification an applicant
shall, at least sixty (60) days prior to a planned opening, file with the
department:
(a) A completed DAIL-ALC-1,
Assisted-Living Community Certification Application;
(b) A copy of a blank lease agreement and any
documentation incorporated by reference into the lease agreement;
(c) A copy of written material used to market
the proposed assisted-living community, including material that markets offered
special programming, staffing, or training in accordance with
KRS
194A.713(11);
(d) The floor plan of the proposed
assisted-living community identifying the:
1.
Living units, including features that meet the requirements of
KRS
194A.703(1);
2. Central dining area;
3. Laundry facility; and
4. Central living room; and
(e) A nonrefundable application
fee for applications submitted for certification beginning July 1, 2019 shall
be:
1. Forty (40) dollars per unit requested
to be certified, according to the DAIL-ALC-1, Assist-ed-Living Community
Certification Application, in addition to the following fee schedule:
a. 100 or more units $2,000;
b. 75-99 units $1,750;
c. 50-74 units $1,500;
d. 25-49 units $1,000; or
e. < 25 units $500;
2. Made payable to the Kentucky State
Treasurer; and
3. Mailed to the
Department for Aging and Independent Living, 275 East Main Street, Frankfort,
Kentucky 40621.
(2) The applicant shall notify the department
upon occupancy of five (5) residents in the as-sisted-living
community.
Section 3.
Application and Fees for Annual Certification Review. The department shall
renew a certification if an assisted-living community:
(1) Has obtained its initial certification in
accordance with Section 5 of this administrative regulation; and
(2) Submits to the department annually by
July 1:
(a) A completed DAIL-ALC-1,
Assisted-Living Community Certification Application;
(b) The documentation required by Section
2(1)(a) through (d) of this administrative regulation, if changes have occurred
since the previous certification; and
(c) The nonrefundable annual application and
certification fee, that beginning July 1, 2019, shall be:
1. Forty (40) dollars per certified unit, in
addition to the following fee schedule:
a. 100
or more units $2,000;
b. 75-99
units $1,750;
c. 30-74 units
$1,500;
d. 25-49 units $1,000;
or
e. < 25 units $500;
2. Made payable to the Kentucky
State Treasurer; and
3. M ailed to
the Department for Aging and Independent Living, 275 East Main Street,
Frankfort, Kentucky 40621.
(3) The 2019 annual certification fee may be
made in payments over six (6) months if:
(a)
There is a documented hardship; and
(b) The payments are approved by the
department's commissioner.
Section 4. Change in an Assisted-Living
Community.
(1) If there is an increase in the
number of living units, an assisted-living community shall reapply for
certification with the department:
(a) In
accordance with Section 2(1) of this administrative regulation; and
(b) Not less than sixty (60) days prior to
the increase.
(2) If the
increase in units occurs before or after the required annual certification
date, the certification fee shall be sixty (60) dollars per each additional
unit.
(3) If there is a decrease in
the number of living units, an assisted-living community shall notify the
department within sixty (60) days of the decrease.
(4) If there is a change of more than fifty
(50) percent interest in ownership of an assisted-living community, the new
owner shall apply for certification:
(a) By
following the procedures in Section 3 of this administrative regulation;
and
(b) Within thirty (30) days of
the change of owners.
(5) An assisted-living community shall:
(a) Notify the department in writing:
1. Within thirty (30) days of a name or
mailing address change for the assisted-living community or the applicant;
or
2. At least sixty (60) days
prior to termination of operation; and
(b) Notify a client of termination of
operation sixty (60) days prior to closure unless there is sudden termination
due to:
1. Fire;
2. Natural disaster; or
3. Closure by a local, state, or federal
agency.
Section
5. Initial Certification of an Assisted-Living Community. If
department staff determines that an applicant for initial certification meets
the application requirements specified in Section 2(1) of this administrative
regulation, the department shall:
(1) Consider
the application process complete;
(2) Notify the applicant of operation status
within ten (10) business days of receipt of the completed DAIL-ALC-1,
Assisted-Living Community Certification Application; and
(3) Conduct an announced on-site
review.
Section 6.
Annual Certification of an Assisted-Living Community. If department staff
determines that an applicant for annual certification meets the application
requirements specified in Section 3 of this administrative regulation, the
department shall:
(1) Consider the application
process complete; and
(2) Conduct
an unannounced on-site review pursuant to
KRS
194A.707(2)(b) or
(c).
Section 7. On-Site Review of an
Assisted-Living Community.
(1)
(a) A representative of the department
conducting a certification review shall not disclose information made
confidential by
KRS
194A.060(1).
(b) A confidential interview with a client or
access to a client's living unit shall be subject to the client's oral or
written consent.
(2) The
on-site review shall consist of:
(a) Review of
staffing pursuant to
KRS
194A.717(1);
(b) Review of employment records in
accordance with subsection (3) of this section;
(c) Verification that an employee reads and
agrees to the policy and procedures of the as-sisted-living community regarding
communicable disease pursuant to
KRS
194A.717(4);
(d) Documentation of:
1. Completion of employee orientation:
a. Pursuant to
KRS
194A.719(1); and
b. Within ninety (90) days of the date of
hire; and
2. Annual
in-service education pursuant to KRS 194.719(2);
(e) Verification of compliance with the
applicable building and life safety codes in accordance with
KRS
194A.703(3);
(f) Review of client records in accordance
with subsection (4) of this section;
(g) Review of an assisted-living community's
policies and procedures for compliance with
KRS
194A.700 through
194A.729
using a DAIL-ALC-2, Assisted-Living Community Certification
Checklist;
(h) Review of an
assisted-living community's written service provision and practices in
accordance with subsection (5) of this section; and
(i) Review of any documentation or records to
ensure compliance pursuant to
KRS
194A.707(10).
(3) Review of Employment Records.
(a) During the on-site review, the following
employment records shall be reviewed, except as provided in paragraph (b) of
this subsection:
1. An employment application
that shall contain a criminal record check notice pursuant to
KRS
216.793(1);
2. A criminal record check that shall:
a. Be requested in accordance with
KRS
216.789(3);
b. Be applied for no sooner than forty-five
(45) days prior to but no later than seven (7) days following an employee's
first day of work;
c. Be checked
every other year through the Kentucky Justice and Public Safety Cabinet or
Administrative Office of the Courts;
d. Include a criminal record check upon hire
from any state in which the employee lived outside of Kentucky in the last
three (3) years; and
e. Include a
criminal record check at least every other year from the state in which the
employee resides if the employee maintains residency outside of Kentucky;
and
3. A check of the
central registry, the adult protective services caregiver misconduct registry,
and nurse aide registry that shall:
a. Be
performed on an employee upon the initial date of hire and at least annually
thereafter; and
b. Show that the
employee was not found on the registries.
(b) An assisted living community may use
Kentucky's national background check program established by
906 KAR
1:190 to satisfy the background check requirements of
this subsection.
(4)
Review of Client Records. During the on-site review, the following client
records shall be reviewed:
(a) A completed
client functional needs assessment that shall:
1. Be completed:
a. Upon move in;
b. Once every twelve (12) months thereafter;
and
c. As needed due to a change in
function or condition;
2. Be administered by a person with at least:
a. A bachelor's degree in health or human
services or a related field;
b. An
associate's degree in health or human services or a related field and at least
one (1) year of experience working with the elderly or conducting assessments;
or
c. A high school diploma or its
equivalency and two (2) years of experience working with the elderly or
conducting assessments;
3. Assess to ensure the client meets the
eligibility requirements for assisted-living pursuant to
KRS
194A.711 and
194A.700(2);
4. Reflect the client's ability to perform
activities of daily living and instrumental activities of daily living pursuant
to
KRS
194A.700(2); and
5. Be provided to the client pursuant to
KRS
194A.705(5);
(b) Personal preferences and
social factors that shall be updated at least every two (2) years;
(c) A signed lease with all
attachments;
(d) Documentation of a
client's designated representative, if applicable; and
(e) Documentation that the client received a
copy of the assisted-living community's cardio-pulmonary resuscitation policies
pursuant to
KRS
194A.719(1)(d).
(5) Review of Written Service
Provision and Practices. The on-site review shall review an assisted-living
community's written service provision and practices related to:
(a) Assistance with self-administration of
medication in accordance with
KRS
194A.705(1)(d), which, for
medications not preset in a medication organizer or single dose unit container
as described in
KRS
194A.700(3)(a), may include
but shall not exceed the following staff actions if the client requests
assistance:
1. Providing the client with a
medication reminder;
2. Reading the
medication's label to the client, and confirming that the medication is being
taken by the client for whom it is prescribed; and
3. Opening the medication container or dosage
package, but not handling or removing the medication;
(b) Health services, delivered by
assisted-living staff, which shall be reported in compliance with
KRS
194A.709(1);
(c) Documentation in a client's file:
1. From a licensed health care professional
defined by
KRS
216.300(1) or entity
providing the health service to the client:
a.
Requested of the client by the assisted-living community; and
b. That states the client has a temporary
condition pursuant to
KRS
194A.711(1); and
2. From the assisted-living
community to ensure that the client is not a danger, including if hospice or
similar end-of-life services are provided;
(d) Compliance with
KRS
194A.713(11),
194A.719(1)(j),
and
216.595
regarding special programming, staffing, or training that may be provided to a
client of an assisted-living community if the assisted-living community:
1. Ensures a client's functional needs
assessment that:
a. Reflects the client's
abilities as specified in subsection (4)(a)4 of this section; and
b. Shall be updated at least annually;
and
2. Complies with the
requirements of
KRS
216.595; and
(e) Compliance with a department approved
waiver request in accordance with Section 8 of this administrative
regulation.
(6) The
department may, pursuant to
KRS
194A.707(11), request
additional information to ensure an assisted-living community complies with KRS
194A.700-729 and
216.789(1).
(7) Prior to completion of the on-site visit
at the assisted-living community, a department representative shall hold a
meeting with the assisted-living community manager or designee to discuss the
preliminary results of the on-site visit.
Section 8. Waiver of Building Requirements.
(1) Pursuant to
KRS
216.595(3), an
assisted-living community may request a waiver from the department regarding
building requirements to address the specialized needs of individuals with
Alzheimer's disease or other brain disorders.
(2) The department shall:
(a) Review the waiver request for approval;
and
(b) Not waive the building and
life safety codes established in
KRS
194A.703(3).
(3) An assisted-living community
shall not alter the building requirements established in
KRS 194A.703(1) and
(2) without department approval.
Section 9. Assisted-living On-Site
Review Findings.
(1) The department shall:
(a) Document any noncompliance with
KRS
194A.700 through
194A.729
or this administrative regulation found during an on-site review on the
DAIL-ALC-2, Assisted-Living Community Certification Checklist; and
(b) Submit the finding of noncompliance to
the applicant:
1. On a statement of
noncompliance located on the DAIL-ALC-3, Assisted-Living Community Statement of
Noncompliance and Plan of Correction; and
2. Unless the finding is due to a client
being a danger pursuant to Subsection (9) of this section, within fifteen (15)
business days upon completion of the on-site review.
(2)
(a) The assisted-living community shall
complete a plan of correction on the DAIL-ALC-3, Assisted-Living Community
Statement of Noncompliance and Plan of Correction and submit the form to the
department within fifteen (15) business days of receipt of the notice of
noncom-pliance.
(b) The
assisted-living community shall specify in the plan the dates by which the
noncom-pliance shall be corrected.
(3) The department shall notify the applicant
in writing within fifteen (15) business days of receipt of the plan of
correction:
(a) Whether the plan of correction
is approved or not approved; and
(b) The reasons for the department's
decision.
(4)
(a) If the plan of correction is approved and
the department determines a follow-up on-site review is unnecessary, the
department shall issue a certification certificate.
(b) The assisted-living community shall post
the certificate in a public area.
(5) If the plan of correction is not
approved, the applicant shall submit to the department an amended plan of
correction within fifteen (15) business days of receipt of notice the plan was
not approved.
(6) If the department
determines after reviewing the amended plan of correction that certification
may be denied or revoked, the department shall notify the assisted-living
community within ten (10) business days of the determination and of the
following rights:
(a) The opportunity for an
informal dispute resolution meeting:
1.
Between the department and the assisted-living community;
2. To be held within fifteen (15) days of the
assisted-living community's receipt of the notice; and
3. To address a dispute, including the
provision of additional documentation or support materials; and
(b) Appeal rights as specified in
Section 12 of this administrative regulation if:
1. An informal dispute is not requested;
or
2. A dispute is not resolved
with the informal dispute resolution.
(7) If an applicant meets all the
requirements on the DAIL-ALC-2, Assisted-Living Community Certification
Checklist, the department shall issue a certification certificate verifying its
status.
(8) The assisted-living
community shall post the certification certificate in a public area.
(9) If the department finds during a
complaint or certification review that a client is a danger, the department
shall:
(a) Immediately notify the
assisted-living community as established in Section 7(7) of this administrative
regulation; and
(b) Provide the
DAIL-ALC-4, Statement of Danger to the assisted-living community.
(10) Within forty-eight (48)
hours, unless issued on a Friday and then by 4:30 p.m. eastern standard time of
the next business day, of receiving the DAIL-ALC-4, Statement of Danger, the
assisted-living community shall begin to implement a plan to correct the danger
in accordance with Section 10(2)(e)1 or 2 of this administrative
regulation.
(11) The department
shall make a report of suspected abuse, neglect, or exploitation to Adult
Protective Services in accordance with
KRS
209.030(3).
(12) The department may conduct additional
on-site visits pursuant to
KRS
194A.707(11).
Section 10. Denial and Revocation
of Certification.
(1) Certification shall be
denied or revoked if:
(a)
1. The department determines upon a complaint
or certification review that an assisted-living community knowingly employs any
individual convicted of an offense prohibited by
KRS
216.789(1) or
216.789(2)
as disclosed by the individual's employment application or a criminal records
check and if the assisted-living community fails to immediately terminate the
employment upon the department's finding; or
2. The same repeat violation of subparagraph
1 of this paragraph is found by the department within a three (3) year period;
or
(b) An
assisted-living community or applicant fails to submit a plan of correction to
the department as specified in Section 9(2) through (7) of this administrative
regulation.
(2)
Certification may be denied or revoked if an assisted-living community:
(a) Fails to apply for certification as
specified in Sections 2(1), 3(1), or 4(1) of this administrative
regulation;
(b) Submits a completed
DAIL-ALC-1, Assisted-Living Community Certification Application more than
fifteen (15) days late for two (2) consecutive years;
(c) Fails to submit a completed DAIL-ALC-1,
Assisted-Living Community Certification Application within thirty (30) days of
July 1 annually;
(d) Fails to
implement its most recent approved plan of correction:
1. Under current ownership; and
2. Within the plan of correction's specified
timeframe on the DAIL-ALC-3, Assisted-Living Community Statement of
Noncompliance and Plan of Correction;
(e) Fails to comply with one (1) of the
following requirements if the department finds that a client is a danger and
the department initially verifies those findings in writing pursuant to Section
9(9) of this administrative regulation:
1.
Within forty-eight (48) hours, unless issued on a Friday and then by 4:30 p.m.
eastern standard time of the next business day, of receiving the DAIL-ALC-4,
Statement of Danger, the assisted-living community shall submit a written
response to the department that confirms how the danger has been eliminated or
why the danger is disputed, with submission occurring via:
a. Email;
b. Facsimile transmission;
c. Delivery to the department by
hand;
d. United States mail;
or
e. Courier service; or
2. Within forty-eight (48) hours,
unless issued on a Friday and then by 4:30 p.m. eastern standard time of the
next business day, of receiving the DAIL-ALC-4, Statement of Danger, the
assisted-living community shall:
a. Initiate
a move-out notice and begin the process of assisting the client to find
appropriate living arrangements pursuant to
KRS
194A.705(4); and
b. Submit a written response to the
department that confirms the assisted-living community took the required
action, with submission occurring via:
(i)
Email;
(ii) Facsimile
transmission;
(iii) Delivery to the
department by hand;
(iv) United
States mail; or
(v) Courier
service; or
(f) Except as provided in subsection (3) of
this section, fails to initiate the requirements of paragraph (e)2 of this
subsection, if the department:
1. Notifies
the assisted-living community in writing that the client remains a danger;
and
2. Does not accept the
assisted-living community's written response pursuant to paragraph (e)1 of this
subsection.
(3) If, after reviewing the assisted-living
community's written response pursuant to subsec-tion (2)(e)1 of this section,
the department determines the client remains a danger, the department shall
notify the assisted-living community in writing that:
(a) Certification may be denied or
revoked;
(b) The assisted-living
community has the right to an informal dispute resolution meeting:
1. Between the department and the
assisted-living community;
2. For
the purpose of attempting to resolve a dispute, including the provision of
additional documentation or support materials; and
3. To be requested by the assisted-living
community in writing within three (3) business days of receiving the
department's written notice; and
(c) It has appeal rights pursuant to Section
12 of this administrative regulation if:
1. An
informal dispute resolution meeting is not requested; or
2. A dispute is not resolved with the
informal dispute resolution meeting.
(4) The department shall issue a written
notice to the assisted-living community if the department determines:
(a)
1. A
danger is unsubstantiated; or
2.
The danger has been eliminated; or
(b) To deny or revoke certification following
an informal dispute resolution meeting pursuant to subsection (3)(b) of this
section.
(5)
(a) If an assisted-living community continues
to operate after its certification is revoked and fails to request an informal
dispute resolution meeting or an administrative hearing pursuant to Section 12
of this administrative regulation to resolve a danger dispute, the
assisted-living community may be fined in accordance with
KRS
194A.723.
(b) The fine shall be paid as specified in
Section 11(1) of this administrative regulation.
Section 11. Collection of Fees and
Fines.
(1) An entity or business found to be
in violation of
KRS
194A.723 and assessed a penalty pursuant to
KRS
194A.724 shall make a check payable to the
Kentucky State Treasurer and mail it to the Department for Aging and
Independent Living, 275 East Main Street, Frankfort, Kentucky 40621.
(2) A party aggrieved by a determination of
the department may appeal the determination or the fine in accordance with KRS
Chapter 13B.
(3) The fee
established for the notification of conditional compliance to a lender after
review of the architectural drawings and lease agreement, pursuant to
KRS
194A.729, shall be $250.
Section 12. Right to Appeal Decision and
Hearings.
(1) If the department determines
that a certification shall be denied or revoked, the applicant shall be
notified of the right to appeal the determination:
(a) By certified mail; and
(b) Within ten (10) days of
determination.
(2) To
request an administrative hearing, an applicant shall send a written request to
the department within thirty (30) days of receipt of a written notice of:
(a) Nonapproval of the amended plan of
correction; or
(b) Denial or
revocation of certification.
(3) After receipt of the request for a
hearing, the cabinet shall conduct a hearing pursuant to KRS Chapter
13B.
(4) The denial or revocation
of certification shall be effective upon the final decision of the secretary
pursuant to KRS Chapter 13B.
(5) If
the denial or revocation is upheld by the secretary, the assisted-living
community shall cease to operate and the assisted-living community shall:
(a) Assist clients in locating alternate
living arrangements pursuant to
KRS
194A.705(4); and
(b) Ensure that all clients are relocated
within thirty (30) days of final notice of revocation or denial.
(6) The commissioner of the
department shall have the authority to extend the time limit specified in
subsection (5)(b) of this section, not to exceed an additional fifteen (15)
days.
Section 13.
Incorporation by Reference.
(1) The following
material is incorporated by reference:
(a)
"DAIL-ALC-1, Assisted-Living Community Certification Application",
06/2015;
(b) "DAIL-ALC-2,
Assisted-Living Community Certification Check List", 10/2015;
(c) "DAIL-ALC-3, Assisted-Living Community
Statement of Noncompliance and Plan of Correction", 2/09; and
(d) "DAIL-ALC-4, Statement of Danger",
06/2015.
(2) This
material may be inspected, copied, or obtained, subject to applicable copyright
law, at the Department for Aging and Independent Living, 275 East Main Street,
Frankfort, Kentucky 40621, Monday through Friday, 8 a.m. to 4:30 p.m.
Notes
STATUTORY AUTHORITY: KRS 194A.050(1), 194A.707(1), (9)
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