922 KAR 5:080. Certification of assisted living residences.

 

      RELATES TO: KRS Chapter 13B, 209.200

      STATUTORY AUTHORITY: KRS 194A.050, 209.200, EO 96-862

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 209.200 authorizes the cabinet to establish requirements for the voluntary certification of an assisted living residence. EO 96-862, effective July 2, 1996, reorganizes the Cabinet for Human Resources and places the Department for Social Services and the Adult Protection Program under the Cabinet for Health and Family Services. This administrative regulation establishes the requirements for the voluntary certification of an assisted living residence which emphasizes personal dignity, autonomy, independence, and privacy and enhances the person's ability to age in a home-like setting while services intensify or diminish according to the individual's changing needs. This administrative regulation establishes procedures for application, review and approval including the conduct of hearings upon appeals as governed by KRS Chapter 13B.

 

      Section 1. Definitions. (1) "Apartment" means as governed by KRS 209.200.

      (2) "Applicant" means the owner and operator if under a long-term lease.

      (3) "Assisted living residence" means as governed by KRS 209.200.

      (4) "Home-style housing unit" means as governed by KRS 209.200.

      (5) "Supportive services" means as governed by KRS 209.200.

 

      Section 2. Voluntary Certification Process. (1) The cabinet or designee shall be responsible for the certification of assisted living residences. Application for initial and renewal voluntary certification shall be made on an Application for Certificate of Assisted Living Residences form.

      (2) An applicant making application for initial or renewal certification shall provide:

      (a) The name and address of each officer, director, and trustee of the assisted living residence, and the names and addresses of limited partners or shareholders with more than twenty-five (25) percent interest in the assisted living residence;

      (b) Assurances that no officer, director, trustee, limited or general partner, or shareholder has ever been convicted of crimes which would constitute a felony, class A misdemeanor or abuse of a person;

      (c) A floor plan of the entire assisted living residence complex;

      (d) An operating plan which shall include the following information:

      1. The number of units for which certification is sought;

      2. The location of resident units, common spaces and exits by floor;

      3. The fee structure for lodging, meals and services;

      4. The type and extent of services to be offered, arrangements for providing the services, including third party contracts, linkages with hospital and community services, and transportation availability;

      5. A plan to provide timely assistance to tenants and respond to urgent or emergency needs;

      6. The number of staff to be employed in the operation of the assisted living residence and their minimum qualifications and responsibilities;

      7. A copy of the tenant agreement that will be used by the assisted living residence;

      8. A current copy of all required building, fire safety, and locally approved state sanitation code certificates or permits;

      (e) Information documenting substantial changes to the operating plan prior to the effective certification date and as otherwise required by the cabinet or designee;

      (3) The cabinet or designee shall not process an application for an original or renewal certification unless the application:

      (a) Includes all information, required attachments and statements; and

      (b) For new construction or substantial rehabilitation, has been submitted within sixty (60) days of planned opening of the assisted living residence but no later than within thirty (30) days prior to the planned opening.

      (4) The cabinet or designee shall approve an applicant for an initial two (2) year certification or biennial renewal certification if:

      (a) The cabinet or designee determines that the information provided in the application meets the requirements as governed by KRS 209.200 and this administrative regulation.

      (b) The cabinet or designee has conducted a compliance review of the assisted living residence and has determined that the premises meet the requirements of KRS 209.200 and are in compliance with this administrative regulation. A compliance review shall include the following:

      1. A review of the operating plan and an inspection of the common areas of the assisted living residence. The inspector may interview the applicant, manager, staff and tenants of the assisted living residence. Interviews with tenants shall be conducted privately and shall be confidential;

      2. An inspection of the living quarters of any tenant, but only with the tenant's prior oral or written consent; and

      3. A $100 inspection fee payable to the Kentucky State Treasurer.

      (5) Renewal certification procedures.

      (a) The cabinet or designee shall renew for a term of two (2) years, based on the certification date of issuance, the certification of an assisted living residence if the cabinet or its designee determines that the owner and the assisted living residence meet the requirements of KRS 209.200 and this administrative regulation.

      (b) If the owner's renewal application of certification is filed and date stamped by the cabinet or designee at least thirty (30) days before the stated expiration date of the certification, the certification shall not expire until the cabinet can notify the owner that the application for renewal has been denied.

      (c) The renewal application shall have any document which amends, supplements, updates or otherwise revises the operating plan, floor plan, or service plan outlined in the original or renewal application for certification attached.

      (6) Changes during the biennial certification.

      (a) In the case of a report or citation of a violation of provisions of the state sanitation code, state building code, fire safety regulations or other administrative regulations affecting the health, safety, or welfare of residents, a copy of the report or citation shall be submitted to the cabinet or designee within seven (7) days of receipt of notice and may result in a compliance review.

      (b) In the case of a change in ownership of a certified assisted living residence, an applicant shall submit an application for certification at least thirty (30) days prior to the change of ownership or a change in the name of the complex.

      (7) Each certification shall be valid only in the possession of the residence and the owner to whom it is issued and shall not be subject to sale, assignment or other transfer, voluntary or involuntary.

      (8) A certification shall not be valid for any building premises other than those for which the certification was originally issued.

      (9) The assisted living residence certification shall be displayed in a conspicuous place in the residence.

      (10) The certification of an assisted living residence shall be returned by registered mail to the cabinet or designee upon:

      (a) Revocation of or refusal to renew the certification;

      (b) Transfer of ownership of the assisted living residence;

      (c) Change of name of the assisted living residence; and

      (d) Closure or other termination of the residence' existence or authority to operate.

      (11) A biennial compliance review is required for all certified assisted living residences. The cabinet or designee shall conduct reviews of assisted living residences to determine compliance for the issuance or reissuance of certificates. The cabinet or designee may conduct a compliance review any time there is reasonable cause or belief that a certified assisted living residence is in violation of this administrative regulation.

      (12) An employee of the cabinet or designee shall have the right to enter and inspect, without prior notice, the common areas and office areas of any assisted living residence for which an application has been received or for which certification has been issued.

 

      Section 3. Compliance Review Reports, Findings, and Responses. When a compliance review is conducted, the cabinet or designee shall prepare written findings summarizing all pertinent information obtained during the review and shall not disclose confidential, private, proprietary or privileged information obtained in connection with the review.

      (1) If the cabinet or designee finds that the applicant is in compliance with this administrative regulation, the cabinet shall notify the applicant of the findings within ten (10) days after the compliance review is completed.

      (2) If the cabinet or designee finds that the applicant is not in compliance with this administrative regulation, the cabinet shall forward a notice of noncompliance to the applicant. The notice shall be delivered by certified mail, return receipt requested within ten (10) days after completion of the review of the assisted living residence. The notice shall:

      (a) Describe the noncompliance with particularity and include the corrective action to be taken by the applicant.

      (b) Include a description of the action that shall be taken by the cabinet or designee regarding the application or certification status if the corrective action is not completed;

      (3) Within ten (10) days after receiving the notice of non-compliance, the applicant shall submit a corrective action plan specifying dates by which noncompliance shall be corrected. The corrective action plan shall be submitted by certified mail, return receipt requested.

      (4) If the applicant does not respond to the cabinet within the ten (10) day period or if the applicant agrees to take the corrective action but fails to complete the required corrective action within the specified time frame, the cabinet shall commence the action described in the notice of noncompliance.

      (5) The cabinet or designee shall review and may deny, suspend, or revoke certification if the applicant fails to comply with certification standards set forth in this administrative regulation.

 

      Section 4. Appeal. (1) If the cabinet or designee intends to deny, suspend, or revoke a certification, the cabinet or designee shall notify the applicant in writing stating the reasons for the adverse action and the applicant's right to appeal.

      (2) Upon appeal, the applicant shall be afforded a hearing. Notice of hearing shall comply with KRS 13B.050 and shall be conducted in accordance with KRS Chapter 13B.

 

      Section 5. General Requirements for an Assisted Living Residence. An assisted living residence shall meet the following requirements to obtain and maintain certification:

      (1) Physical requirements.

      (a) An assisted living residence shall provide only single occupancy (unless shared with spouse, other family member or another individual by mutual agreement) apartments with lockable doors on the entry door of each apartment. Residents shall have exclusive rights to their apartments.

      (b) Each apartment shall include:

      1. A private bath with one (1) lavatory;

      2. One (1) toilet;

      3. A bathtub or shower stall; and

      4. A kitchenette consisting of a:

      a. Refrigerator;

      b. Sink;

      c. Cabinet area; and

      d. Microwave which shall not be required if the facility serves three (3) meals per day in a central dining room and has available community cooking facilities.

      (c) For those home-style residences, each tenant shall be provided:

      1. An individual bedroom with lockable door;

      2. A shared bathroom with one (1) other bedroom; and

      3. The use of the community kitchen facilities.

      (d) Every assisted living residence shall meet the requirements of the state sanitation, building, and fire and safety code laws and the building shall comply with administrative regulations governing use and access by persons with disabilities.

      (2) Supportive service requirements. A supportive service package is required for an assisted living residence seeking certification or renewal of certification. The service package may include:

      (a) Eating;

      (b) Dressing;

      (c) Bathing;

      (d) Transferring;

      (e) Toileting;

      (f) A congregate meal site;

      (g) Barber and beauty services;

      (h) Sundries for personal consumption;

      (i) Supervision of self-administration of medications.

 

      Section 6. Tenant Rights and Agreement. (1) A lease agreement which clearly describes the rights and responsibilities of the tenant and owner shall be drawn between a certified living residence and a tenant, or his legal representative, who seeks to reside in the residence. The tenant agreement shall be signed by the tenant or his legal representative and the authorized signatory for the assisted living residence.

      (a) The tenant agreement shall include the following:

      1. Charges, expenses and other assessments for the provision of tenant services, lodging and meals;

      2. The agreement of the tenant to make payment of the charges specified;

      3. Arrangements for payment;

      4. A tenant grievance procedure;

      5. The owner's covenant to comply with applicable federal and state laws and regulations concerning consumer protection and protection from abuse, neglect and financial exploitation of the elderly and disabled;

      6. The conditions under which the tenant agreement may be terminated by either party;

      7. Reasonable rules for conduct and behavior of the staff, management and the tenant; and

      8. A copy of the tenants' rights.

      (b) The tenant agreement may include the agreement of the owner to provide or arrange for the provision of additional services as identified in the supportive services package.

      (c) The tenant agreement shall be for a term not to exceed one (1) year and may be renewable upon the agreement of both parties. The tenant agreement shall be for a single-living apartment. It is permissible for the apartment to also be inhabited by a spouse, other family member or another adult by mutual agreement provided all household members are a party to the tenant agreement.

      (2) Tenant rights. Every tenant of an assisted living residence shall have the right to:

      (a) Live in a decent, safe, and habitable residential living environment;

      (b) Be treated with consideration, respect and due recognition of personal dignity, autonomy, individuality and the need for privacy;

      (c) Privacy within the tenant's unit during provision of health related services subject to rules of the assisted living residence reasonably designed to promote the health, safety and welfare of tenants;

      (d) Private communications, including receiving and sending unopened correspondence, access to a telephone, and visiting with any person of his choice;

      (e) Freedom to participate in and benefit from community services and activities, and to achieve the highest possible level of independence, autonomy, and interaction within the community;

      (f) Retain and use his own personal property, space permitting, in the tenant's living area so as to maintain individuality and personal dignity;

      (g) Directly engage or contract with any licensed health care provider to obtain necessary health care services in the tenant's unit or in another space in the assisted living residence as may be made available to tenants for such purposes, to the same extent available to persons residing in private homes;

      (h) Manage his own financial affairs;

      (i) Exercise civil and religious liberties;

      (j) Present grievances to the manager or staff of the assisted living residence government, officials or to any other person without restraint, interference, coercion, discrimination, or reprisal.

      (k) Confidentiality of all records and communications to the extent provided by law, regulations, or policies of the residence which apply to the conduct of a tenant;

      (l) Obtain from the manager of the assisted living residence a copy of any rules or regulations of the residence which apply to his conduct as a tenant; and

      (m) Not be evicted from the assisted living residence except in accordance with the provisions of the lease agreement, state statutes and local ordinances.

 

      Section 7. Incorporation by Reference. (1) "Application for Certificate of Assisted Living Residences", (1997 Edition), Department for Community-Based Services, is incorporated by reference.

      (2) It may be inspected, copied, or obtained at Cabinet for Families and Children, Department for Community Based Services, 275 East Main Street, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m. (23 Ky.R. 3487; Am. 4196; 24 Ky.R. 104; eff. 6-18-97; Recodified from 905 KAR 5:080, 10-30-98.)