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| Montana Administrative Register Notice 37-979 | No. 10 05/27/2022 | |
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BEFORE THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On June 16, 2022, at 10:00 a.m., the Department of Public Health and Human Services will hold a public hearing via remote conferencing to consider the proposed adoption, amendment, and repeal of the above-stated rules. Interested parties may access the remote conferencing platform in the following ways: (a) Join Zoom Meeting at: https://mt-gov.zoom.us/j/84666688132?pwd=dXpkak5PNlRtQVlYSEtkcGZYTDE2UT09, meeting ID: 846 6668 8132 and password 311582; or (b) Dial by telephone +1 646 558 8656, meeting ID: 846 6668 8132. Find your local number: https://mt-gov.zoom.us/u/kb7TNdfDJt.
2. The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Public Health and Human Services no later than 5:00 p.m. on June 2, 2022, to advise us of the nature of the accommodation that you need. Please contact Kassie Thompson, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail dphhslegal@mt.gov.
3. The rules proposed to be adopted provide as follows:
NEW RULE I CATEGORY D: CONSTRUCTION (1) Category D services must be provided in a secured care unit and meet all requirements in ARM 37.106.316. (2) A category D facility will be either: (a) a stand-alone secured facility; or (b) a separate, secured unit attached to a category A, B, and/or C facility. (3) A category D unit attached to a category A, B, and/or C facility must have a separate entrance/exit and impenetrable doors used to separate the category D unit from the other units. (4) The facility must devise a policy on how it plans to maintain security of the facility or unit. (5) A category D facility or unit must have at least one seclusion room for every 24 residents. The room must meet the requirements set forth in [NEW RULE IX]. (6) A category D facility or unit must not use automatic door closures unless required. If required, such closures must be mounted on the public side of the door. (7) All hardware and lights used in a category D facility or unit must be tamper-proof. (8) All resident room doors must include a sight window. (9) No more than one client must reside in a resident room.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
NEW RULE II CATEGORY D: ADMINISTRATOR QUALIFICATIONS (1) In addition to requirements in ARM 37.106.2873, an administrator for a category D facility must have a least three years of experience in the field of mental health. (2) Of the 16 hours of annual continued education training required in ARM 37.106.2814, eight hours must be in the field of mental health.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
NEW RULE III CATEGORY D: DISCLOSURE TO CATEGORY D RESIDENTS (1) Each assisted living category D facility or unit must, prior to admission, inform the resident or resident's legal representative in writing of the following: (a) the overall philosophy and mission of the facility regarding meeting the needs of residents with mental illness and the form of care or treatment offered; (b) the process and criteria for admission and discharge; (c) the process used for resident assessments; (d) the process used to establish and implement a health care plan, including how the health care plan will be updated in response to changes in the resident's condition; (e) staff training and continuing education practices; (f) the physical environment and design features appropriate to support the functioning of mentally disabled residents, including features for the resident who requires seclusion and restraint; (g) the frequency and type of resident activities; and (h) any additional costs of care or fees. (2) The facility must obtain from the resident or resident's legal representative a written acknowledgment that the information specified was provided. A copy of this written acknowledgment must be kept as part of the permanent resident file.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
NEW RULE IV CATEGORY D: STAFF (1) A category D facility must have the following staff: (a) a registered nurse (RN) must be on duty or on call and available physically to the facility within one hour; (b) a full-time licensed mental health professional who must be site-based; and (c) direct care staff in sufficient number to meet the needs of the residents. Direct care staff must be certified nursing assistants. (2) In addition to requirements in ARM 37.106.2816, all staff must: (a) be at least 18 years old; (b) complete an FBI fingerprint background check upon hiring; (c) complete four hours of annual training related to mental health; (d) complete training requirements in ARM 37.106.2908; and (e) complete training on de-escalation techniques and methods of managing resident behaviors. (3) All staff must remain awake, fully dressed, and available on the unit at all times when they are on duty.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
NEW RULE V CATEGORY D: RESIDENT ASSESSMENTS A category D facility must obtain or conduct three types of resident assessments for each resident: (1) Prior to move in, the facility shall obtain the court determination documentation required in 50-5-224(3), MCA, as well as a full medical history and physical and mental health assessment. (2) A resident needs assessment must be completed within seven days prior to admission to facility. The assessment must be reviewed/updated quarterly, and upon significant change in status. (3) The administrator, or designee, will request and retain copies of the healthcare assessment and written order for care completed monthly by the practitioner as defined in 50-5-226(5), MCA.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
NEW RULE VI CATEGORY D: HEALTH CARE PLAN (1) In addition to requirements in ARM 37.106.2875, the health care plan for a category D resident must include: (a) de-escalation techniques individualized to the resident; (b) circumstances when the resident may need to be isolated from other residents; (c) behaviors and/or situations in which a staff member may need to obtain orders for restraints and/or seclusion; and (d) the requirements listed in ARM 37.106.2905. (2) The health care plan must be reviewed and updated quarterly and upon significant change in status. (3) Each direct care staff must document that they have reviewed and are capable of implementing each resident's health care plan.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
NEW RULE VII CATEGORY D: MEDICATION USE AND PHYSICIAN ORDERS (1) All category D residents must be assessed on their ability and be encouraged to self-administer their own medication. If a resident is unable or unwilling to self-administer his or her medication, a licensed nurse shall administer all medication and the resident must be classified as a category B resident. (2) When a resident refuses a medication, the resident's practitioner shall be notified within 24 hours and notification documented.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
NEW RULE VIII CATEGORY D: DISCHARGE (1) A comprehensive discharge plan directly linked to the behaviors and symptoms that resulted in admission and estimated length of stay must be developed upon admission. (2) A resident's diversion order is discontinued when: (a) the resident and facility choose to allow continued residency; a resident needs assessment must be completed to determine category and placement within the facility; (b) the resident chooses not to remain in the facility; the facility shall issue a 30-day notice and conduct discharge planning. Discharge planning must include involvement from community resources. (3) A resident may be involuntarily discharged in less than 30 days if the resident: (a) has a medical emergency; (b) is suffering from an acute psychotic episode; or (c) commits a crime that causes serious bodily injury, death, or property damage. (4) All discharges must be discussed with the resident's practitioner to ensure collaboration on a safe and appropriate discharge location.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
NEW RULE IX CATEGORY D: SECLUSION ROOM REQUIREMENTS (1) A category D facility or unit must have at least one room designated to be used for seclusion for every 24 beds. (2) The location of these rooms must facilitate staff observation and monitoring of residents in these rooms. (3) Seclusion rooms may only be used by one resident at a time. (4) Seclusion rooms must: (a) be a minimum of 60 square feet, and a minimum of 80 square feet if restraint beds are used; (b) be a minimum length of 7 feet and maximum wall length of 11 feet; (c) be a minimum height of 9 feet; (d) be accessed by an anteroom or vestibule that provides direct access to a toilet room; (e) have door openings to the anteroom and toilet room with a minimum clear width of 3 feet 8 inches; (f) be constructed to prevent hiding, escape, injury, or suicide; (g) have walls designed to withstand direct and forceful impact and have materials that meet Class A or Class B finishes as defined by the 2012 National Fire Protection Association (NFPA) 101; (h) have monolithic ceilings; (i) not contain outside corners or edges; (j) have doors that swing out, have a clear opening of 3 feet 8 inches, and permit staff observation through a vision panel, while maintaining provisions for privacy; (k) have tamper resistant fixtures, such as light fixtures, vent covers, and cameras; (l) have electrical switches and outlets that are restricted within the seclusion room; and (m) have door lever handles that point downward when in the latched or unlatched position, except for specifically designed anti-ligature hardware. (5) A licensed nurse must provide residents with constant one-on-one supervision when in the seclusion room.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:
37.106.2802 PURPOSE (1) The purpose of these rules is to establish standards for assisted living A, B (2) An assisted living facility offers a suitable living arrangement for persons with a range of capabilities, disabilities, frailties, and strengths. In general, however, assisted living is not appropriate for individuals who are incapable of responding to their environment, expressing volition, interacting, or demonstrating any independent activity. For example, individuals in a persistent vegetative state who require long term nursing care should not be placed or cared for in an assisted living facility.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2803 APPLICATION OF RULES (1) Category A facilities must meet the requirements of ARM 37.106.2801 through (2) Category B facilities must meet the requirements of ARM 37.106.2801 through (3) Category C facilities must meet the requirements of ARM 37.106.2801 through (4) Category D facilities must meet the requirements of ARM 37.106.2801 through 37.106.2885 and [NEW RULES I through IX].
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2804 APPLICATION OF OTHER RULES (1) To the extent that other licensure rules in ARM Title 37, chapter 106, subchapter 3 conflict with the terms of ARM Title 37, chapter 106, subchapter
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2805 DEFINITIONS The following definitions apply in this subchapter: (1) "Activities of daily living (ADLs)" means tasks usually performed in the course of a normal day in a resident's life that include eating, walking, mobility, dressing, grooming, bathing, toileting, and transferring. (2) "Administrator" means the person designated on the facility application or by written notice to the department as the person responsible for the daily operation of the facility and for the daily resident care provided in the facility. (3) "Advance directive" means a written instruction, such as a living will, a do not resuscitate (DNR) order, or durable power of attorney (POA) for health care, recognized under state law relating to the provision of health care when the individual is incapacitated. (4) "Ambulatory" means a person is capable of self mobility, either with or without mechanical assistance. If mechanical assistance is necessary, the person is considered ambulatory only if they can, without help from another person, transfer, safely operate, and utilize the mechanical assistance, exit and enter the facility, and access all common living areas of the facility. (5) "Assisted living facility" is defined at 50-5-101, MCA. (6) "Change of ownership" means the transfer of ownership of a facility to any person or entity other than the person or entity to whom the facility's license was issued, including the transfer of ownership to an entity which is wholly owned by the person or entity to whom the facility's license was issued. (7) "Department" means the Department of Public Health and Human Services. (8) "Direct care staff" means a person or persons who directly assist residents with personal care services and medication. It does not include housekeeping, maintenance, dietary, laundry, administrative, or clerical staff at times when they are not providing any of the above-mentioned assistance. Volunteers can be used for direct care, but may not be considered part of the required staff. (9) "Health care plan" means a written resident specific plan identifying what ongoing assistance with activities of daily living and health care services is provided on a daily or regular basis by a licensed health care professional to a category B (10) "Health care service" means any service provided to a resident of an assisted living facility that is ordered by a practitioner and required to be provided or delegated by a licensed, registered, or certified health care professional. Any other service, whether or not ordered by a physician or practitioner, that is not required to be provided by a licensed, registered, or certified health care professional is not to be considered a health care service. (11) "Involuntary transfer or discharge" means the involuntary discharge of a resident from the licensed facility or the involuntary transfer of a resident to a bed outside of the licensed facility. The term does not include the transfer of a resident from one bed to another within the same licensed facility, or the temporary transfer or relocation of the resident outside the licensed facility for medical treatment. (12) "License" means the document issued by the department that authorizes a person or entity to provide personal care or assisted living services. (13) "Licensed health care professional" means a licensed physician, physician assistant-certified, advanced practice registered nurse, or registered nurse who is practicing within the scope of the license issued by the Department of Labor and Industry. (14) "Mechanical assistance" means the use of any assistive device that aids in the mobility and transfer of the resident. Assistive devices include (15) "Medication administration" means an act in which a prescribed drug or biological is given to a resident by an individual who is authorized in accordance with state laws and regulations governing such acts. (16) "Mental health professional" means: (a) a certified professional person; (b) a physician licensed under Title 37, chapter 3, MCA; (c) a professional counselor licensed under Title 37, chapter 23, MCA; (d) a psychologist licensed under Title 37, chapter 17, MCA; (e) a social worker licensed under Title 37, chapter 22, MCA; (f) a marriage and family therapist under Title 37, chapter 37, MCA; (g) an advanced practice registered nurse, as provided for in 37-8-202, MCA, with a clinical specialty in psychiatric mental health nursing; or (h) a physician assistant licensed under Title 37, chapter 20, MCA, with a clinical specialty in psychiatric mental health. (a) visited the resident on site; and (b) determined that the resident's health care status does not require services at another level of care. (a) removing medication containers from secured storage; (b) providing verbal suggestions, prompting, reminding, gesturing, or providing a written guide for self-administrating medications; (c) handing a prefilled, labeled medication holder, labeled unit dose container, syringe or (d) opening the lid of the above container for the resident; (e) guiding the hand of the resident to self-administer the medication; (f) holding and assisting the resident in drinking fluid to assist in the swallowing of oral medications; and (g) assisting with removal of a medication from a container for residents with a physical disability which prevents independence in the act. (a) beauty or barber shop; (b) financial assistance or management; (c) housekeeping; (d) laundry; (e) recreation activities; (f) shopping; (g) spiritual services; and (h) transportation. (29) "Significant change" means a resident status or condition change that results in a change in service and care needs. This includes: (a) admission to, or discharge from hospice services; (b) a change in categorization; or (c) an accident or health event that changes the functional or cognitive abilities of the resident.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2809 LICENSE APPLICATION PROCESS (1) Application for a license accompanied by the required fee shall be made to the Department of Public Health and Human Services, (a) identity of each officer and director of the corporation, if organized as a corporation; (b) identity of each general partner if organized as a partnership or limited liability partnership; (c) name of the administrator and administrator's qualifications; (d) name, address, and phone number of the management company if applicable; (e) physical location address, mailing address, and phone number of the facility; (f) maximum number of A beds, B beds (g) policies and procedures as outlined in ARM 37.106.2815; and (h) resident agreement, as outlined in ARM (2) Every facility shall have distinct identification or name and shall notify the department in writing within 30 days prior to changing such identification or name. (3) Each assisted living facility shall promptly report to the department any plans to relocate the facility at least 30 days prior to effecting such a move. (4) In the event of a facility change of ownership, the new owners shall provide the department the following: (a) a completed application with fee; (b) a copy of the fire inspection conducted within the past year; (c) policies and procedures as prescribed in ARM 37.106.2815
(d) a copy of the resident agreement as outlined in ARM 37.106.2823 to be used; and (e) documentation of compliance with ARM 37.106.2814. (5) Under a change of ownership, the seller shall return to the department the assisted living license under which the facility had been previously operated. This information must be sent to the Department of Public Health and Human Services,
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2810 LICENSE RESTRICTIONS (1) A license is not subject to sale, assignment, or other transfer, voluntary or involuntary. (2) A license is valid only for the premises for which the original license was issued. (3) The license remains the property of the department and shall be returned to the department upon closing or transfer of ownership. (a) The address for returning the license is Department of Public Health and Human Services,
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2814 ADMINISTRATOR (1) Each assisted living facility shall employ an administrator. The administrator is responsible for operation of the assisted living facility at all times and shall ensure 24-hour supervision of the residents. (2) The administrator must meet the following minimum requirements: (a) be currently licensed as a nursing home administrator in Montana or another state; or (b) has successfully completed all of the self study modules of (c) be enrolled in and complete the self study course referenced in (2)(b), within six months from hire. (3) The administrator must show evidence of at least 16 contact hours of annual continuing education relevant to the individual's duties and responsibilities as administrator of the assisted living facility. (a) A nursing home administrator license or the (4) In the absence of the administrator, a staff member must be designated to oversee the operation of the facility (a) If the administrator will be absent from the facility for more than 30 continuous days, the department shall be given written notice of the individual who has been appointed the designee. The appointed designee must meet all the requirements of (5) The administrator or designee may not be a resident of the facility. (a) A designee must: (i) be age 18 or older; and (ii) have demonstrated competencies required to assure protection of the safety and physical, mental, and emotional health of residents. (6) The administrator or (a) ensure that the current facility license (b) oversee the day-to-day operation of the facility including (i) all personal care services (ii) the employment, training, and supervision of staff and volunteers; (iii) maintenance of buildings and grounds; and (iv) record keeping; and (c) protect the safety and physical, mental, and emotional health of residents. (7) The facility shall notify the department within five days of an administrator's departure or a new administrator's employment. (8) The administrator or designee shall initiate transfer of a resident through the resident and/or the resident's practitioner, appropriate agencies, or the resident's legal representative when the resident's condition is not within the scope of services of the assisted living facility. (9) The administrator or designee shall accept and retain only those residents whose needs can be met by the facility and who meet the acceptance criteria found in 50-5-226, MCA. (10) The administrator or designee must ensure that a resident who is ambulatory only with mechanical assistance is: (a) able to safely self-evacuate the facility without the aid of an elevator or similar mechanical lift; (b) have the ability to move past a building code approved occupancy barrier or smoke barrier into an adjacent wing or building section; or (c) reach and enter an approved area of refuge. (11) The administrator or designee shall ensure and document that orientation is provided to all employees at a level appropriate to the employee's job responsibilities. (12) The administrator or designee shall review every accident or incident causing injury to a resident and document the appropriate corrective action taken to avoid a reoccurrence. (13) The owner of an assisted living facility may serve as administrator, or in any staff capacity, if the owner meets the qualifications specified in these rules.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2815 WRITTEN POLICIES AND PROCEDURES (1) A (2) The manual must include an organizational chart delineating the lines of authority, responsibility, and accountability for the administration and resident care services of the facility. (3) New policies, as developed, must be submitted to the department for review.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2816 ASSISTED LIVING FACILITY STAFFING (1) The administrator shall develop minimum qualifications for the hiring of direct care staff and support staff. (2) The administrator shall develop policies and procedures for (a) A name-based or FBI fingerprint background check shall be conducted on all employees who have accepted employment at an assisted living facility. (i) If an applicant has lived outside the state within the past five years, the assisted living facility must complete background checks in every state in which the applicant has resided within the past five years or conduct an FBI fingerprint background check. (b) The administrator may allow an employee to work provisionally pending the background check results so long as there are no indications the employee poses a risk or threat to the health, safety, or welfare of the residents in the facility. (i) Indications that an employee may pose a risk or threat to the health, safety, and welfare of the residents of the facility include self-reported or otherwise known history of abuse, neglect, or exploitation, pending legal proceedings, currently on parole or probation, or any other indicator the facility determines reasonable. (c) An assisted living facility may not employ any person who meets the criteria of 50-5-225(4), MCA. (3) New employees shall receive orientation and training in areas relevant to the employee's duties and responsibilities, including: (a) an overview of the facility's policies and procedures manual in areas relevant to the employee's job responsibilities; (b) a review of the employee's job description; (c) services provided by the facility; (d) the Montana Elder and Persons with Developmental Disabilities Abuse Prevention Act found at 52-3-801 et seq., MCA; (e) the Montana Long-Term Care Resident Bill of Rights Act found at 50-5-1101 et seq., MCA (f) staff who are responsible for assisting with self-administration of medication will receive orientation and training on resident Medication Administration Records (MARs) and the five rights of medication administration; and (g) all direct care staff will receive, at minimum, two hours of training in dementia care upon hire and annually thereafter. (4) In addition to meeting the requirements of (3), direct care staff shall be trained to perform the services established in each resident service plan. (a) Direct care staff will review each resident's current service plan or health care plan and document that they have reviewed the plan and can perform the services required. (5) Direct care staff shall be trained in the use of the abdominal thrust maneuver and basic first aid. If the facility offers cardiopulmonary resuscitation (CPR), at least one person per shift shall hold a current CPR certificate. (6) The following rules must be followed in staffing the assisted living facility: (a) direct care staff shall have knowledge of the resident's needs and any events about which the employee should notify the administrator or the administrator's designated representative; (b) the facility shall have a sufficient number of qualified staff on duty 24 hours a day to meet the scheduled and unscheduled needs of each resident, to respond in emergency situations, and all related services, including (i) maintenance of order, safety, and cleanliness; (ii) assistance with medication regimens; (iii) preparation and service of meals; (iv) housekeeping services and assistance with laundry; and (v) assurance that each resident receives the supervision and care required by the service or health care plan to meet the resident's basic needs; (c) an individual on each work shift shall have keys to all relevant resident care areas and access to all items needed to provide appropriate resident care; (d) direct care staff may not perform any service for which they have not received appropriate documented training; and (e) facility staff may not perform any health care service that has not been appropriately delegated under the Montana Nurse Practice Act or in the case of licensed health care professionals, that is beyond the scope of their license. (7) Employees and volunteers may perform support services, such as cooking, housekeeping, laundering, general maintenance, and office work after receiving an orientation to the appropriate sections of the facility's policy and procedure manual. Any person providing direct care, however, is subject to the orientation and training requirements for direct care staff. (8) Volunteers may be utilized in the facility, but may not be included in the facility's staffing plan in lieu of facility employees. In addition, the use of volunteers is subject to the following: (a) volunteers must be supervised and be familiar with resident rights and the facility's (b) volunteers shall not assist with medication administration, delegated nursing tasks, bathing, toileting, or transferring. (9) Residents may participate voluntarily in performing household duties and other tasks suited to the individual resident's needs and abilities, but residents may not be used as substitutes for required staff or be required to perform household duties or other facility tasks.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2817 EMPLOYEE FILES (1) The facility is responsible for maintaining a file on each employee and substitute personnel. (2) The following documentation from employee files must be made available to the department at all reasonable times, but shall be made available to the department within 24 hours after the department requests to review the files (a) the employee's name; (b) a copy of current credentials, certifications, or professional licenses as required to perform the job description; (c) an initialed copy of the employee's job description; (d) initialed documentation of employee orientation and ongoing training including documentation of (e) the result of the employee's criminal background check. (3) The facility shall keep an employee file that meets the requirements set forth in (2) for the administrator of the facility, even when the administrator is the owner. (4) The employer must have evidence of contact to verify that each certified nursing assistant has no adverse findings entered on the nurse aid registry maintained by the department in the certification bureau. (a) A facility may not employ or continue employment of any person who has adverse findings on the
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2821 RESIDENT APPLICATION AND NEEDS ASSESSMENT PROCEDURE (1) All facilities must develop a written application procedure for admission to the facility which includes the prospective resident's name and address, sex, date of birth, marital status, and religious affiliation (if volunteered). (2) The facility shall determine whether a potential resident meets the facility's admission requirements and that the resident is appropriate to the facility's license endorsement as either a category A, category B (3) Prior to admission, the facility shall conduct an initial resident needs assessment to determine the prospective resident's needs. (4) The initial resident's needs assessment must include documentation of the following: (a) cognitive patterns to include short-term memory, long term memory, memory recall, decision making, and change in cognitive status/awareness, or thinking disorders; (b) sensory patterns to include hearing, ability to understand others, ability to make self understood, and ability to see in adequate light; (c) activities of daily living (ADL) functional performance to include ability to transfer, locomotion, mobility devices, dressing, eating, use of toilet, bladder continence, bowel continence, continence appliance/programs, grooming, and bathing; (d) mood and behavior patterns, sadness or anxiety displayed by resident, wandering, verbally abusive, physically abusive, and socially inappropriate/disruptive behavior; (e) health problems/accidents; (f) weight/nutritional status to include current weight and nutritional complaints; (g) skin problems; (h) (i) use of restraints, safety, or assistive devices. (5) The department shall collect a fee of $100 from a prospective resident, resident or facility appealing a rejection, or relocation decision made pursuant to ARM 37.106.2821, to cover the cost of the independent nurse resident needs assessment. (6) The resident's needs assessment shall be reviewed and updated annually or at any time the resident's needs change significantly.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2822 RESIDENT SERVICE PLAN: CATEGORY A (1) Based on the initial resident's needs assessment, an initial service plan shall be developed for all category A residents within 24 hours of admission. The initial service plan shall be reviewed or modified within 60 days of admission to assure the service plan accurately reflects the resident's needs and preferences. (2) The service plan shall include a written description of: (a) what the service is; (b) who will provide the service; (c) when the service is performed; (d) where and how often the service is provided; (e) changes in service and the reasons for those changes; (f) if applicable, the desired outcome; (g) an emergency contact with phone number; and (h) the prospective resident's practitioner's name, address, and telephone number and whether there are any health care decision making instruments in effect if applicable. (3) The resident (4) A copy of the resident service plan shall be given to the resident or resident's legal representative and be made part of the resident file.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2823 RESIDENT AGREEMENT (1) An assisted living facility shall enter into a written resident agreement with each prospective resident prior to admission to the assisted living facility. The agreement shall be signed and dated by a facility representative and the prospective resident or the resident's legal representative. The facility shall provide the prospective resident or the resident's legal representative and the resident's practitioner, if applicable, a copy of the agreement and shall explain the agreement to them. The agreement shall include at least the following items: (a) the criteria for requiring transfer or discharge of the resident to another facility providing a different level of care; (b) a statement explaining the availability of skilled nursing or other professional services from a third party provider to a resident in the facility; (c) the extent that specific assistance will be provided by the facility as specified in the resident service plan; (d) a statement explaining the resident's responsibilities including (e) a listing of specific charges to be incurred for the resident's care, frequency of payment, facility rules relating to nonpayment of services, and security deposits, if any are required; (f) a statement of all charges, fines, penalties, or late fees that shall be assessed against the resident; (g) a statement that the agreed upon facility rate shall not be changed unless 30 days' advance written notice is given to the resident and/or the resident's legal representative; and (h) an explanation of the assisted living facility's policy for refunding payment in the event of the resident's absence, discharge, or transfer from the facility and the facility's policy for refunding security deposits. (2) When there are changes in services, financial arrangements, or in requirements governing the resident's conduct and care, a new resident/provider agreement must be executed or the original agreement must be updated by addendum and signed and dated by the resident or the resident's legal representative and by the facility representative.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2824 INVOLUNTARY DISCHARGE CRITERIA (1) Residents shall be given a written 30 day notice when they are requested to move out. The administrator or designee shall initiate transfer of a resident through the resident's physician or practitioner, appropriate agencies, (a) the resident's needs exceed the level of ADL services the facility provides; (b) the resident exhibits behavior or actions that repeatedly and substantially interfere with the rights, health, safety, or well-being of other residents and the facility has tried prudent and reasonable interventions; (i) documentation of the interventions attempted by the facility shall become part of the resident's record; (c) the resident, due to severe cognitive decline, is not able to respond to verbal instructions, recognize danger, make basic care decisions, express needs, or summon assistance, except as permitted by ARM 37.106.2891 through 37.106.2898; (d) the resident has a medical condition that is complex, unstable, or unpredictable and treatment cannot be appropriately developed in the assisted living environment; (e) the resident has had a significant change in condition that requires medical or psychiatric treatment outside the facility and at the time the resident is to be discharged from that setting to move back into the assisted living facility, appropriate facility staff have re-evaluated the resident's needs and have determined the resident's needs exceed the facility's level of service. Temporary absence for medical treatment is not considered a move out; (f) the resident has failed to pay charges after reasonable and appropriate notice (g) the facility ceases to operate. (2) The resident's 30 day written move out notice shall, at a minimum, include the following: (a) the reason for transfer or discharge; (b) the effective date of the transfer or discharge; (c) (d) a statement that the resident has the right to appeal the action to the department; and (e) the name, address, and telephone number of the state long term care ombudsman. (3) A (a) if a resident has a medical emergency; (b) the resident exhibits behavior that poses an immediate danger to self or others; or (c) if the resident has not resided in the facility for 30 days. (4) A resident has a right to a fair hearing to contest an involuntary transfer or discharge. (a) Involuntary transfer or discharge is defined in ARM 37.106.2805. (b) A resident may exercise his or her right to appeal an involuntary transfer or discharge by submitting a written request for fair hearing to the Department of Public Health and Human Services, (c) The parties to a hearing regarding a contested transfer or discharge are the facility and the resident contesting the transfer or discharge. The department is not a party to such a proceeding, and relief may not be granted to either party against the department in a hearing regarding a contested transfer or discharge. (d) Hearings regarding a contested transfer or discharge shall be conducted in accordance with ARM 37.5.304, 37.5.305, 37.5.307, 37.5.313, 37.5.322, 37.5.325, and 37.5.334, and a resident shall be considered a claimant for purposes of these rules. (e) The request for appeal of a transfer or discharge does not automatically stay the decision of the facility to transfer or discharge the resident. The hearing officer may, for good cause shown, grant a resident's request to stay the facility's decision pending a hearing. (f) The hearing officer's decision following a hearing shall be the final decision for the purposes of judicial review under ARM 37.5.334. (5) The facility must assist with discharge to ensure safe and appropriate placement of the resident.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2829 RESIDENT FILE (1) At the time of admission, a separate file must be established for each category A, category B (2) The file shall include at least the following: (i) (ii) steps taken to safeguard the resident; and (iii) facility contacts with family members or another responsible party; (3) The resident file must be kept current. The file must be retained for a minimum of three years following the resident's discharge, transfer, or death.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2835 RESIDENT UNITS (1) A resident of an assisted living facility who uses a wheelchair or walker for mobility, or who is a category B (2) Each resident bedroom must satisfy the following requirements: (a) in a previously licensed facility, no more than four residents may reside in a single bedroom; (b) in new construction and facilities serving residents with severe cognitive impairment, occupancy must be limited to no more than two residents per room; (c) exclusive of toilet rooms, closets, lockers, wardrobes, alcoves, or vestibules, each single bedroom must contain at least 100 square feet, and each multi-bedroom must contain at least 80 square feet per resident; (d) each resident must have a wardrobe, locker, or closet with minimum clear dimensions of (e) a sufficient number of electrical outlets must be provided in each resident bedroom and bathroom to meet staff and resident needs without the use of extension cords; (f) each resident bedroom must have operable exterior windows which meet the approval of the local fire or building code authority having jurisdiction; (g) the resident's bedroom door may be fitted with a lock if approved in the resident service plan, as long as facility staff have access to a key at all times in case of an emergency. Deadbolt locks are prohibited on all resident bedrooms. Resident bedroom door locks must be operable, on the resident side of the door, with a single motion and may not require special knowledge for the resident to open; (h) kitchens or kitchenettes in resident bedrooms are permitted if the resident's service plan permits unrestricted use and the cooking appliance can be removed or disconnected if the service plan indicates the resident is not capable of unrestricted use. (3) A hallway, stairway, unfinished attic, garage, storage area or shed, or other similar area of an assisted living facility must not be used as a resident bedroom. Any other room must not be used as a resident bedroom if it: (a) can only be reached by passing through a bedroom occupied by another resident; (b) does not have an operable window to the outside; or (c) is used for any other purpose. (4) Any provision of this rule may be waived at the discretion of the department if conditions in existence prior to the adoption of this rule or construction factors would make compliance extremely difficult or impossible and if the department determines that the level of safety to residents and staff is not diminished.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2836 FURNISHINGS (1) Each resident in an assisted living facility must be provided the following at a minimum by the facility: (a) an individual towel rack; (b) a handicap accessible mirror mounted or secured to allow for convenient use by both wheelchair bound residents and ambulatory persons; (c) clean, flame-resistant, or non-combustible window treatments or equivalent, for every bedroom window. In a category D facility or unit, the use of blinds or curtains is not permissible. A flame-resistant or non-combustible window valence, not exceeding 14 inches in length, may be used; (d) an electric call system comprised of a fixed manual, pendant cordless or two way interactive, UL or FM listed system which must connect resident rooms to the care staff center or staff pagers. A resident room that is designated as double occupancy must be equipped with a call system for both occupants. In category D facilities or units, resident bedroom call cords or strings in excess of 6 inches shall not be permitted; and (e) for each multiple-bed room, either flame-resistant privacy curtains for each bed or movable flame-resistant screens to provide privacy upon the request of a resident. (2) Following the discharge of a resident, all of the equipment and bedding used by that resident and owned by the facility must be cleaned and sanitized.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2838 RESIDENT TOILETS AND BATHING (1) The facility shall provide: (a) at least one toilet for every four residents; (b) one bathing facility for every 12 residents; and (c) a toilet and sink in each toilet room. (2) All resident rooms with toilets or shower/bathing facilities must have an operable window to the outside or must be exhausted to the outside by a mechanical ventilation system. (3) Each resident room bathroom shall: (a) be in a separate room with a toilet. A sink need not be in the bathroom but shall be in close proximity to the toilet. A shower or tub is not required if the facility utilizes a central bathing unit or units; and (b) have at least one towel bar per resident, one toilet paper holder, one accessible mirror and storage for toiletry items. (4) All doors to resident bathrooms shall open outward or slide into the wall and shall be unlockable from the outside. (a) Dutch doors, bi-folding doors, sliding pocket doors and other bi-swing doors may be used if they do not impede the bathroom access width and are approved by the department. A shared bathroom with two means of access is also acceptable. (b) Resident bathroom door locks must be operable, on the resident side of the door, with a single motion and may not require special knowledge for the resident to open. (5) In rooms used by category C or other special needs residents, the bathroom does not have to be in a separate room and does not require a door. (6) Each resident must have access to a toilet room without entering another resident's room or the kitchen, dining, or living areas. (7) Each resident bathroom or bathing room shall have (8) In category D facilities or units, bathroom call cords or strings in excess of 6 inches shall not be permitted.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2847 MEDICATIONS: PRACTITIONER ORDERS (1) Medication and treatment orders shall be carried out as prescribed. The resident has the right to consent to or refuse medications and treatments. The practitioner shall be notified if a resident refuses consent to an order. Subsequent refusals to consent to an order shall be reported as required by the practitioner. (2) A prescription medication for which the dose or schedule has been changed by the practitioner must be noted in the resident's medication administration record (3) Current practitioners' orders shall be documented and kept in all resident files.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2849 MEDICATIONS: RECORDS AND DOCUMENTATION (1) An accurate medication record for each resident shall be kept of all medications, including over-the-counter medications, for those residents whose self-administration of medication requires monitoring and/or assistance by the facility staff. (2) The record shall include: (a) name of medication, reason for use, dosage, route, and date and time given; (b) name of the prescribing practitioner and their telephone number; (c) any adverse reaction, unexpected effects of medication, or medication error, which must also be reported to the resident's practitioner; (d) allergies and sensitivities, if any; (e) resident specific parameters and instructions for PRN medications; (i) documentation of when and why a PRN was administered or self-administered and follow up documentation as to the effectiveness of the PRN; (f) documentation of treatments with resident specific parameters; (g) documentation of doses missed or refused by resident and why; (h) initials of the person monitoring and/or assisting with self-administration of medication; and (i) review date and name of reviewer. (3) (4) A medication record need not be kept for those residents for whom written authorization has been given by their practitioner to keep their medication in their rooms and to be fully responsible for taking the medication in the correct dosage and at the proper time. The authorization must be renewed on an annual basis. (5) The facility shall maintain a record of all destroyed or returned medications in the resident's record or closed resident file in the case of resident transfer or discharge.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2854 USE OF RESTRAINTS, SAFETY DEVICES, ASSISTIVE DEVICES,
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2855 INFECTION CONTROL (1) The assisted living facility must establish and maintain infection control policies and procedures sufficient to provide a safe, sanitary, and comfortable environment (a) (b) standard and transmission-based precautions to be followed to prevent spread of infections; (c) when and how isolation should be used for a resident, including: (i) the type and duration of the isolation, depending upon the infectious agent or organism involved; and (ii) a requirement that the isolation should be the least restrictive possible for the resident under the circumstances; (d) the circumstances under which the facility must prohibit employees with a communicable disease or infected skin lesions from direct contact with residents or their food, if direct contact will transmit disease;
(2) The facility, where applicable, shall comply with applicable statutes and rules regarding the handling and disposal of hazardous waste.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2860 FOOD SERVICE (1) The facility must establish and maintain standards relative to food sources, refrigeration, refuse handling, pest control, storage, preparation, procuring, serving and handling food, and dish washing procedures that are sufficient to prevent food spoilage and the transmission of infectious disease. These standards must include the following: (a) food must be obtained from sources that comply with all laws relating to food and food labeling; (b) the use of home-canned foods is prohibited; (c) food subject to spoilage removed from its original container, must be kept sealed, labeled, and dated. (2) Foods must be served in amounts and a variety sufficient to meet the nutritional needs of each resident. The facility must provide therapeutic diets when prescribed by the resident's practitioner. At least three meals must be offered daily and at regular times, with not more than a 14-hour span between an evening meal and breakfast unless a nutritious snack is available in the evening, then up to 16 hours may elapse between a substantial evening meal and breakfast. (3) Records of menus as served must be filed on the premises for three months after the date of service for review by the department. (4) The facility shall take into consideration the preferences of the residents and the need for variety when planning the menu. Either the current day or the current week's menu shall be posted for resident viewing. (5) The facility shall employ food service personnel suitable to meet the needs of the residents. (a) Foods must be cut, chopped, and ground to meet individual needs or as ordered by the resident's physician or practitioner (b) If the cook or other kitchen staff must assist a resident with direct care outside the food service area, they must properly wash their hands before returning to food service. (c) (d) A facility, whose kitchen and dining services are inspected by the local county health department, must provide the department a copy of their most recent inspection at the time of survey. (6) If the facility admits residents requiring therapeutic or special diets, the facility shall have an approved dietary manual for reference when preparing a meal. Dietitian consultation shall be provided as necessary and documented for residents requiring therapeutic diets. (7) A minimum of a one-week supply of non-perishable foods and a two-day supply of perishable foods must be available on the premises. (8) Potentially hazardous food, such as meat and milk products, must be stored at 41°F or below. Hot food must be kept a 140°F or above during preparation and serving. (9) Freezers must be kept at a temperature of 0°F or below and refrigerators must be kept at a temperature of 41°F or below. Thermometers must be placed in the warmest area of the refrigerator and freezer to assure proper temperature. Temperatures shall be monitored and recorded at least once a month in a log maintained at the facility for one year. (10) Employees shall maintain a high degree of personal cleanliness and shall conform to good hygienic practice during all working periods in food service. (11) A food service employee, while infected with a disease in a communicable form that can be transmitted by foods may not work in the food service area. (12) Tobacco products may not be used in the food preparation and kitchen areas.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2866 CONSTRUCTION, BUILDING AND FIRE CODES (1) Any construction of or alteration, addition, modification, or renovation to an assisted living facility must meet the requirements of the building code and fire marshal agencies having jurisdiction and be approved by the officer having jurisdiction to determine if the building and fire codes are met by the facility. (2) When a change in use (3) Changes in the facility location, use or number of facility beds cannot be made without written notice to, and written approval received from, the department. (4) Exit doors (5) Stairways, halls, doorways, passageways, and exits from rooms and from the building, shall be kept unobstructed at all times. (6) All operable windows and outer doors that may be left open shall be fitted with insect screens. (7) An assisted living care facility must have an annual fire inspection conducted by the appropriate local fire authority or the state fire marshal's office and maintain a record of such inspection for at least three years following the date of the inspection. (8) An employee and resident fire drill (9) Records of employee and resident fire drills (10) A 2A10BC portable fire extinguisher shall be available on each floor of a (11) Portable fire extinguishers must be inspected, recharged, and tagged at least once a year by a person certified by the state to perform such services. (12) Smoke detectors installed and maintained (13) If there is an inside designated smoking area, it shall be separate from other common areas, and provided with adequate mechanical exhaust vented to the outside.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2875 RESIDENT HEALTH CARE PLAN: CATEGORY B (1) Within 21 days of admission to a category B status, the administrator or designee shall assure that a written resident health care assessment and resident certification is performed on each category B resident. (2) Each initial health care assessment by the licensed health care professional shall include, at a minimum, evaluation of the following: (a) cognitive status; (b) communication/hearing patterns; (c) vision patterns; (d) physical functioning and structural problems; (e) continence; (f) psychosocial well-being; (g) mood and behavior patterns; (h) activity pursuit patterns; (i) disease diagnosis; (j) health conditions; (k) oral nutritional status; (l) oral dental status; (m) skin condition; (n) medication use; and (o) special treatment and procedures. (3) A written resident health care plan shall be developed. The resident health care plan shall include, but not be limited to the following: (a) a statement which informs the resident and the resident's practitioner, if applicable, of the requirements of 50-5-226(3) and (4), MCA (b) orders for treatment or services, medications, and diet, if needed; (c) the resident's needs and preferences for themselves; (d) the specific goals of treatment or services, if appropriate; (e) the time intervals at which the resident's response to treatment will be reviewed; and (f) the measures to be used to assess the effects of treatment; (g) if the resident requires care or supervision by a licensed health care professional, the health care plan shall include the tasks for which the professional is responsible. (4) The category B resident's health care plan shall be reviewed quarterly, and if necessary revised upon change of condition. (5) The health care plan shall be readily available to and followed by those staff and licensed health care professionals providing the services and health care.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2885 ADMINISTRATION OF MEDICATIONS: CATEGORY B (1) Written, signed practitioner orders shall be documented in all category B resident facility records by a legally authorized person for all medications and treatments which the facility is responsible to administer. Medication or treatment changes shall not be made without a practitioner's order. Order changes obtained by phone must be confirmed by written, signed orders within 21 days. (2) All medications administered to a category B resident shall be administered by a licensed health care professional or by an individual delegated the task under the Nurse Practice Act and ARM Title (3) Residents with a standing PRN medication order, (a) have the medication administered by a licensed health care professional after an assessment and the determination of need has been made; and (b) be classified as a category B resident because a nursing decision to determine the resident's need for the medication was required. (4) Medication and treatment orders shall be carried out as prescribed. The resident or the person legally authorized to make health care decisions for the resident has the right to consent to, or refuse medications and treatments. The practitioner shall be notified if a resident refuses consent to an order. Subsequent refusals to consent to an order shall be reported as required by the practitioner. (5) Only the following individuals may administer medications to residents: (a) a licensed physician, physician's assistant, certified nurse practitioner, advanced practice registered nurse, or a registered nurse; (b) licensed practical nurse working under supervision; (c) an unlicensed individual who is either employed by the facility or is working under third party contract with a resident or resident's legal representative and has been delegated the task under ARM Title (d) a person related to the resident by blood or marriage or who has full guardianship.
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
37.106.2896 DISCLOSURES TO RESIDENTS: CATEGORY C (1) Each assisted living category C facility or unit must, prior to admission, inform the resident's legal representative in writing of the following: (a) the overall philosophy and mission of the facility regarding meeting the needs of residents afflicted with severe cognitive impairment and the form of care or treatment offered; (b) the process and criteria for move-in, transfer, and discharge; (c) the process used for resident assessment; (d) the process used to establish and implement a health care plan, including how the health care plan will be updated in response to changes in the resident's condition; (e) staff training and continuing education practices; (f) the physical environment and design features appropriate to support the functioning of cognitively impaired residents; (g) the frequency and type of resident activities; (h) the level of involvement expected of families and the availability of support programs; and (i) any additional costs of care or fees. (2) The facility must
AUTH: 50-5-103, 50-5-223, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, 50-5-228, MCA
37.106.2904 USE OF RESTRAINTS, SAFETY DEVICES, ASSISTIVE DEVICES, AND POSTURAL SUPPORTS (1) The application or use of a restraint, safety device, or postural support is prohibited except to treat a resident's medical symptoms and may not be imposed for purposes of coercion, retaliation, discipline, or staff convenience. (2) A restraint may be a safety device when requested by the resident or the resident's authorized representative or physician to reduce the risk of falls and injuries associated with a resident's medical symptoms and used in accordance with 50-5-1201, MCA. (3) To the extent that a resident needs emergency care, restraints may be used for brief periods: (a) to permit medical treatment to proceed unless the health care facility has been notified that the resident has previously made a valid refusal of the treatment in question; or (b) if a resident's unanticipated violent or aggressive behavior places the resident or others in imminent danger, in which case the resident does not have the right to refuse the use of restraints. In this situation: (i) the use of restraints is a measure of last resort to protect the safety of the resident or others and may be used only if the facility determines and documents that less restrictive means have failed; (ii) the size, gender, physical, medical, and psychological condition of the resident must be considered prior to the use of a restraint; (iii) a licensed nurse shall contact a resident's physician for restraint orders within one hour of application of a restraint; (iv) the licensed nurse shall document in the resident (v) a restrained resident must be monitored as their condition warrants, and restraints must be removed as soon as the need for emergency care has ceased, and the resident's safety and the safety of others can be assured (vi) a licensed nurse must provide one on one supervision to a resident who has a restraint applied for the reasons listed in (3). (4) In accordance with the Montana Long-Term Care Residents' Bill of Rights, the resident or authorized representative is allowed to exercise decision-making rights in all aspects of the resident's health care or other medical regimens, with the exception of the circumstances described in (3)(b). (5) Single or two quarter bed rails that extend the entire length of the bed are prohibited from use as a safety or assistive device; however, a bed rail that extends from the head to half the length of the bed and used primarily as a safety or assistive device is allowed. (6) Physician-prescribed orthopedic devices used as postural supports are not considered safety devices or restraints and are not subject to the requirements for safety devices and restraints contained in these rules. (7) Whenever a restraint, safety device, or postural support is used that restricts or prevents a resident from independent and purposeful functioning, the resident must be provided the opportunity for exercise and elimination needs at least every two hours, or more often as needed, except when a resident is sleeping. (8) All methods of restraint, safety devices, assistive devices, and postural supports must be properly fastened or applied in accordance with manufacturer's instructions and in a manner that permits rapid removal by the staff in the event of fire or other emergency.
AUTH: 50-5-103, 50-5-226, 50-5-227, 50-5-1205, MCA IMP: 50-5-103, 50-5-226, 50-5-227, 50-5-1201, 50-5-1202, 50-5-1204,MCA
5. The department proposes to repeal the following rule:
37.106.2886 MEDICATIONS: RECORDS AND DOCUMENTATION: CATEGORY B
AUTH: 50-5-103, 50-5-226, 50-5-227, MCA IMP: 50-5-225, 50-5-226, 50-5-227, MCA
6. STATEMENT OF REASONABLE NECESSITY
The 2017 legislature enacted Senate Bill 272, an act creating a new license for assisted living facilities for those with dementia or other mental disorders who might be a harm to themselves or others; providing an involuntary commitment diversion option; amending laws related to involuntary commitment to address the added diversion alternative; and amending 50-5-224, 50-5-226, 50-5-227, 53-21-122, 53-21-123, 53-21-127, 53-21-181, and 53-21-198, MCA. The bill was signed by the Governor on May 17, 2017, and became effective on October 1, 2017.
The Department of Public Health and Human Services (department) proposes to adopt NEW RULES I though IX establishing new minimum standards for category D assisted living facilities. The proposed new rules are necessary to establish licensing and regulation to ensure the health and safety of individuals residing in a category D assisted living facility or unit in accordance with Senate Bill 272.
The 2019 legislature enacted House Bill 566, an act requiring background checks for all assisted living facility employees and amending 50-5-225 and 50-5-227, MCA. The bill was signed by the Governor on May 7, 2019. The department proposes to amend its administrative rules to reflect the requirement to conduct criminal background checks, what forms of background checks to be conducted, the ability of an employee to work provisionally pending the background check results, and the need for the records of the results of such background checks to be kept in the employee files. The proposed new rules are necessary to establish licensing and regulation regarding background checks for assisted living facility employees in accordance with Senate Bill 566.
The department proposes to update the language used in this subchapter to reflect current practices and to be consistent with the terminology of other agencies involved with the assisted living facilities.
NEW RULE I The department proposes to adopt this new rule to inform assisted living providers of the construction requirements of a category D facility or unit.
NEW RULE II The department proposes to adopt this new rule to establish minimum requirements for administrators of category D assisted living facilities.
NEW RULE III The department proposes to adopt this new rule to specify that category D assisted living facilities or units must inform a category D resident, or their representative, of the facility's overall philosophy and mission, criteria for move-in and discharge, process for resident assessment, process for developing and implementing a health care plan, the requirements of staff training, the facility's physical environment and design features, the frequency and type of resident activities the facility offers, any additional costs of care or fees, and documentation on how the facility can keep all the residents safe. The category D facility or unit must provide some way of indicating that this information has been provided to the resident or the resident's legal representative.
NEW RULE IV The department proposes to adopt this new rule to establish minimum requirements for the type, qualifications, and training of direct care staff in a category D assisted living facility.
NEW RULE V The department proposes to adopt this new rule to specify the time frame, frequency, and retention of resident assessments for category D residents in category D assisted living facilities.
NEW RULE VI The department proposes to adopt this new rule to specify what information is required on a health care plan for a category D resident in an assisted living facility.
NEW RULE VII The department proposes to adopt this new rule to specify medication administration guidelines for category D residents in category D assisted living facilities, and to specify when a category D resident's doctor and practitioner need to be notified of refused medication.
NEW RULE VIII The department proposes to adopt this new rule to specify discharge planning and documentation of discharges.
NEW RULE IX The department proposes to adopt this new rule to specify the construction requirements of a seclusion room within a category D facility, and to specify the supervision requirements of a resident in a seclusion room.
ARM 37.106.2802 The department proposes a change to this rule to include facilities with a category D endorsement in the coverage of this rule.
ARM 37.106.2803 The department proposes a change to this rule to apply this rule to facilities with a category D endorsement.
ARM 37.106.2804 The department proposes a change to this rule to update current information for the subchapter identified.
ARM 37.106.2805 The department proposes a change to this rule to include the definition of a "mental health professional," "significant change," and to update the current title, chapter, and subchapter information for the Board of Nursing.
ARM 37.106.2809 The department proposes a change to this rule to remove Quality Assurance Division and update it to Office of Inspector General, and to include the requirement for addressing the number of category D beds in an assisted living facility.
ARM 37.106.2810 The department proposes a change to this rule to remove Quality Assurance Division and update it to Office of Inspector General.
ARM 37.106.2814 The department proposes a change to this rule to update the educational requirements for assisted living facility administrators.
ARM 37.106.2815 The department proposes a change to this rule to include a required timeframe for reviewing policies, and to require facilities to submit new policies to the department for review.
ARM 37.106.2816 The department proposes a change to this rule to include the requirement for the facility administrator to have a policy on conducting criminal background checks, the types of background checks that a facility can conduct, the ability of an employee to work provisionally pending the results of a background check, and identification of the criteria that would make someone ineligible to work in assisted living facilities. The department also proposes a change to this rule to include the requirement for staff who assist with self-administration of medication to receive additional training, and that all direct care staff review, and document their review of, resident service plans.
ARM 37.106.2817 The department proposes a change to this rule to include that the results of a criminal background check must be kept in the employee's file.
ARM 37.106.2821 The department proposes a change to this rule to include the requirement for addressing whether a category D resident is appropriate for admission to the facility using a resident needs assessment. The department proposes a change to this rule to also update the requirement to adhere to the additional portion of 50-5-226, MCA. The department proposes a change to this rule to include the annual review of residents' needs assessment under this rule.
ARM 37.106.2822 The department proposes a change to this rule to provide a specific timeframe in which a resident service plan must be developed, and to remove the portion of rule addressing annual review of a resident needs assessment from this rule.
ARM 37.106.2823 The department proposes a change to this rule to include the requirement for an assisted living facility to develop a policy on medical and recreational use of marijuana and to provide guidelines on what the policy must include pursuant to 50-46-318 and 50-46-320, MCA.
ARM 37.106.2824 The department proposes a change to this rule to provide assisted living facilities more flexibility in determining a discharge location when issuing a 30-day written discharge notice. Additionally, the department proposes a change to this rule to add a reason to issue a 30-day written discharge notice. The department proposes to further change this rule to include a requirement for a written notice for a discharge on less than 30-days' notice.
ARM 37.106.2829 The department proposes a change to this rule to include the requirement for a separate resident file to be kept for each category D resident. The department proposes to remove the requirement for a resident application and require documented practitioner notification for all resident significant events.
ARM 37.106.2835 The department proposes a change to this rule to include the requirement for a category D resident to not be required to use a bedroom on a floor other than the first floor of the facility that is entirely above the level of the ground, unless the facility is designed and equipped in such a manner that the resident can move between floors or to an adjacent international conference of building code officials approved occupancy/fire barrier without assistance and any below grade resident occupancy is or has been approved by the local fire marshal.
ARM 37.106.2836 The department proposes a change to this rule to provide category D assisted living facilities with the requirements for window furnishings. The department proposes a change to this rule to specify that a double-occupancy room must be equipped with a call system for both occupants in the room.
ARM 37.106.2838 The department proposes a change to this rule to provide category D assisted living facilities with the requirements for call system cords or strings. The department proposes further changes to this rule to align the regulations on the doorknobs that are used for resident bathrooms and the requirement of a fixed call system in the bathroom with the current National Fire Protection Association (NFPA) 101 and American Institute for Architects (AIA) guidelines.
ARM 37.106.2847 The department proposes to change this rule to remove the requirement that medication changes be noted in the service plan or health care plan by a licensed health care professional. The department proposes to further change this rule to require that current practitioners' orders be kept in all category A resident files.
ARM 37.106.2849 The department proposes to change this rule to require specific documentation on the Medication Administration Record of PRN medication administration.
ARM 37.106.2854 The department proposes a change to this rule to include the need for adhering to seclusion room requirements.
ARM 37.106.2855 The department proposes a change to this rule to require assisted living facilities to have detailed policies on preventing and mitigating communicable disease and infections.
ARM 37.106.2860 The department proposes a change to this rule to remove the reference to ARM Title 37, chapter 110, subchapter 2, which has been repealed, to provide a requirement of keeping food stored off the floor, and to require facilities whose kitchen is inspected by the county health department to maintain and provide records of the inspections to the department at the time of survey.
ARM 37.106.2866 The department proposes a change to this rule to include the requirement of licensure approval of changes in a category D assisted living facility. The department proposes to further change this rule to include a change of ownership as a condition that would trigger a requirement for licensure to be based on meeting then current building code and fire marshal agencies' standards for licensure, and to specify that exit doors must be single motion.
ARM 37.106.2875 The department proposes a change to this rule to update the requirement to adhere to the additional portion of 50-5-226, MCA. The department proposes to further change this rule to reflect the requirement of certification of a resident health care plan by a licensed healthcare professional for category B residents, and a quarterly review of the health care plan.
ARM 37.106.2885 The department proposes to change this rule to update the title, chapter, and subchapter information that addresses the Board of Nursing regulations.
ARM 37.106.2886 The department proposes to repeal this rule as it is repetitive of ARM 37.106.2879.
ARM 37.106.2896 The department proposes to amend this rule to modify the requirements of the facility for disclosing to the resident/resident's legal representative information regarding the category C facility's processes.
ARM 37.106.2904 The department proposes a change to this rule to include the need for a licensed nurse to provide one on one supervision to a resident any time a restraint is applied.
Fiscal Impact
The department does not expect there to be any fiscal impact related to the adoption, amendment, and repeal of these rules except as follows: category D is an optional endorsement; unless a facility elects to provide category D services, there is no fiscal impact on a facility. Regarding background checks, some facilities were previously conducting background checks while others were using alternative means to screen employees as was required in the previous rule. There may be a fiscal impact for those facilities who were not previously utilizing the services of a criminal background check contractor. There is an anticipated fiscal impact for the proposed two hours of dementia-related training upon hire and annually for direct-care staff.
These rules are intended to be effective upon the day after the date of publication.
7. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Kassie Thompson, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail dphhslegal@mt.gov, and must be received no later than 5:00 p.m., June 24, 2022.
8. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.
9. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 7 above or may be made by completing a request form at any rules hearing held by the department.
10. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsors were notified by e-mail on August 3, 2021.
11. With regard to the requirements of 2-4-111, MCA, the department has determined that the adoption, amendment, and repeal of the above-referenced rules will not significantly and directly impact small businesses.
/s/ Flint Murfitt /s/ Adam Meier Flint Murfitt Adam Meier, Director Rule Reviewer Public Health and Human Services
Certified to the Secretary of State May 17, 2022.
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A directory of state agencies is available online at http://www.mt.gov/govt/agencylisting.asp.
For questions about the organization of the ARM or this web site, contact sosarm@mt.gov.
