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FAQ & Help - Assisted
Living Regulations |
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Q. What was the process for developing the regulations??
A.
- Assisted living:
- Residential homelike setting
- Elderly and /or disabled individuals who are unable to meet their own needs or who need assistance
- Supportive Services including meals, assistance with ADLs or IADLs, supervision, health-related services
- Optimum dignity and independence
- Payment for services
- Assisted living does not include:
- Services provided by family members
- Nursing Home
- Hospice Program
- Home Health or RSA
- Community programs regulated by DDA, MHA
- Shelters
- Diversity in assisted living:
- Small and large programs (as few as one or two residents and as many as 150)
- Profit and not-for-profit providers
- Homeless and affluent residents
- Residents who require minimal supervision and residents who are eligible for nursing home care
- Charges as low as $400 dollars/mo. and as high as $4000 dollars/mo.
- Problems in Maryland:
- With a changing society and health care system, and over a twenty-year period of increasing and changing needs, residential programs were created in three separate executive departments. This resulted in:
- Fragmentation,
- Lack of coordination,
- Variety of standards,
- Uneven monitoring and regulation, and
- Unknown quality.
- There are currently 50,000 persons over the age of 85. In twenty years, there will be more than 100,000. We must prepare for the future. Assisted Living is a booming business in Maryland. Developers, bankers and businesses routine call and request information concerning regulatory requirements. In addition, before we can request Medicaid reimbursement for Assisted Living Programs, we must have quality standards in place.
- Current number of programs in Maryland:
- Department of Health - 2000 registered and licensed domiciliary care homes
- Office on Aging - 300 group senior assisted housing
- Department of Human Resources - 500 Project Homes
- Unlicensed Homes - Unknown
- History:
- 1994 "Storming" within the Agencies
- Spring, 1995: Failed bill in General Assembly
- Fall, 1995: Governor'- s Task Force and Report
- Spring, 1996; SB 545 passed the Maryland General Assembly
- Summer, 1996 - October, 1997: Regulations development
- March, 1998: AELR Hearing
- The new law - SB 545 (1996):
- Comprehensive definition of Assisted Living
- Single point of entry
- Single set of regulations
- Facilitate "Aging-in-Place"
- DHMH designated as the lead agency
- Licensure based on level of care
- Regulations development process:
- In August 1996, a regulations workgroup was appointed by the Secretary. The workgroup included representatives of the affected industries, consumers, advocates, three agencies, the attorney general's office, Medicaid, Health Resources Planning Commission, Board of Nursing, State Fire Marshal's office, local governments, Governor's Task Force, etc.
- We used the "Big Tent" approach. Anyone who offered to help was invited to participate.
- Three Subcommittees were established to focus on the different areas:
- Quality
- Legal
- Environment
- We reviewed regulations of other states and national standards including Assisted Living Quality Initiative, A 1996 Working Document of the Assisted Living Quality Coalition, and Assisted Living, Reconceptualizing Regulation to Meet Consumers' Needs and Preferences, Karen Wilson, AARP.
- We listened to others interested in the process including the Board of Nursing Home Examiners, Board of Nursing, and AARP.
- We held numerous open meetings including eight public meetings throughout the state. We routinely distributed working documents and asked for public comment.
- We held meetings with provider groups including new ones that were created, resident and family councils, local health departments, legislators and their constituents.
- We visited all types of assisted living programs.
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Q. What are the major issues surrounding the regulations?
A.
- Guiding principals of the assisted living regulations:
- Choice
- Independence
- Dignity
- Flexibility
- Affordability
- Homelike environment
- Safety
- Aging-in-Place
- Minimal disruption to existing system
- Outcome-based measures
- Criticisms/controversy:
- Too strict
- Not strict enough
- Too prescriptive
- Not prescriptive enough
- Too focused on medical model
- Not focused on medical model enough
- Too costly
- Aging-in-place philosophy (waiver process) may create appearance of unlicensed nursing facilities
- Broad issues dealt with:
- Big vs. little homes
- Cost vs. quality
- Nursing homes vs. assisted living
- Licensure based on Level of Care (LOC):
- Licensure is based on Levels of Care -- low, moderate or high
- Licensee may provide the LOC it is licensed for and any lower level
- Licensee must demonstrate it has the capacity to provide services and meet the needs of the residents.
- If a licensee wants to provide a higher LOC than it is licensed for, the licensee may request a resident-specific waiver and indicate how it can appropriately meet the needs of the resident without jeopardizing any other resident.
- If a Level 2 provider requests a waiver to care for a Level 3 resident, then the waiver request for that resident must indicate that all Level 3 requirements for that resident will be met.
- DHMH, and its delegated agents (Department of Aging, Department of Human Resources), will monitor waivers to ensure appropriate services are provided.
- Assessment:
- The assisted living manager (ALM) collects information about an individual's physical and mental status. This must be based on information from a licensed health care provider who can certify that the information is accurate within thirty days.
- DHMH will provide the ALM with the assessment tool to collect the information.
- The assessment tool will provide a formula for the ALM to determine the LOC.
- Restrictions on move-in (not waiverable):
- More than intermittent nursing care
- Stage three or four decubitus ulcer
- Ventilator services
- Skilled monitoring
- Chronic, uncontrolled medical condition
- Active reportable contagious disease
- Treatment requiring > contact isolation
- Waiver process:
- An ALP is licensed to care for LOC2 residents. A person with diabetes who needs a special diet and who needs assistance with his or her oral medication applies to move in. The ALP completes the assessment and determines the resident is indeed a LOC2. Two years later, the resident has a stroke and suddenly requires more care including more supervision, medication administration and assistance with ambulation. He or she now qualifies as a LOC3 resident.
- The ALP must decide whether to transfer the resident to another facility or program or to make the necessary arrangements and keep the resident. If the ALP chooses to keep the resident, the ALM must apply to DHMH for a resident -specific waiver. In the waiver request, the ALM must indicate to the Department how they will provide necessary care and services to the resident.
- If the resident continues to age in place, and becomes a LOC3+, the ALP must request another waiver. For an LOC3+ waiver, an ALP must meet assessment and care plan requirements of the federal home health regulations.
- When the resident leaves the ALP, the waiver expires.
- Limits on waivers:
- An ALP may request and receive waivers up to 50 per cent of the ALP's licensed capacity. When an ALP exceeds 50 per cent, then it must obtain licensure at the higher level. For example, if an ALP that is licensed for ten beds at LOC2 has six LOC3 waivers, then it must seek licensure at LOC3.
- For LOC3+, or those persons with one of the eight conditions, the rule is different. In this case, the Department has set 20 per cent of the licensed capacity as a guideline for the number of these waivers. The Department will maintain the flexibility to authorize a greater or lesser number of these waivers per ALP depending on the ALP's capability to care for individual residents.
- Service plan:
- Based on the assessment data, the ALM must complete a service plan within thirty days of move-in.
- The written service plan includes the services to be provided, the frequency, and who will provide them.
- Examples include:
- A female care giver will assist with bathing three times a week.
- Resident is a diabetic and cannot have desserts. Enjoys a piece of fruit before bedtime.
- Resident needs qualified staff to administer medications.
- The Service Plan must be reevaluated every six months.
- Medication administration:
- The regulations permit unlicensed staff to give or assist with medications to those residents who require it. However, staff must be trained and supervised in accordance with the Nurse Practice Act.
- Medication givers must attend a special training course. Those who assist with medication must receive training from the assisted living manager (ALM).
- If staff give medications, there must be a supervisory review of that resident at least every 45 days by a registered nurse. All other residents must be reviewed at least every 90 days by a registered nurse, pharmacist, or authorized prescriber.
- The supervisory review will look at medication storage, the manner it is distributed or administered, its effectiveness and side effects.
- Staff and training:
- The regulations require an assisted living manager (ALM). This person is accountable for the operations of the program.
- 21 years old
- Free of communicable disease
- Criminal background check
- Three letters of reference
- Suitable training or experience
- Training course approved by Department (assessment, service plan, medication, resident rights, fire safety, infection control, CPR, disaster planning, first aid)
- Other staff
- Backup ALM
- Sufficient staff to meet needs (CPR, first aid)
- Criminal background check
- Training from ALM on relevant topics
- Other documentation requirements:
- Medical orders and results from medication monitoring
- Medication and care notes
- Incident reports
- Menus for two months
- Emergency information including who to call in an emergency, advanced directives, guardianship documents
- Resident records must be kept for five years.
- Resident rights:
- Must be posted
- Privacy, confidentiality, visitors
- Legal counsel
- Complaint process
- Access to telephone
- Participation in planning
- Free from abuse and neglect
- Participation in religious activities
- Resident agreement:
- Licensure authority for LOC and LOC of resident
- Rates, payment, policies, refunds
- Policies concerning room assignment, bed hold, room mates, relocations
- Discharge procedures including aging-in-place policies
- Resident complaint or grievance procedure
- Other requirements:
- 24-Supervision
- Use of approved menus
- One phone per nine residents
- Privacy requirements if desired
- Locked storage
- Fire drills
- Laundry service
- Other physical plant requirements based on size of program
- Regulation and enforcement:
- Surveys every year
- Complaint investigations
- Delegation to MDOA, DHR and others
- Use of sanctions to obtain compliance
- Due process for process
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Q. Can anyone go into assisted living?
A. With the exception of individuals with seven distinct conditions, anyone can go into Assisted Living Program (ALP). The seven conditions include persons on ventilators, persons who have advanced stage ulcers, persons with active reportable communicable diseases, persons who require skilled care, etc. An individual with one of these conditions may be medically unstable and require care greater than that usually provided in an ALP. Based on the Department's research, discussion, and experience with ALPs in Maryland, we do not believe it is in these residents' best interests to enter an ALP. However, after we implement the quality standards, train the ALP staff, and conduct a cycle of surveys, the Department is willing to reconsider these restrictions. |
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Q. Are these restrictions consistent with other states?
A. Yes. If you compare regulations for all of the states, Maryland is in the middle. Some states have stricter regulations with more prohibitions, and some have fewer or none at all. |
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Q. What is Intermittent Nursing Care?
A. Intermittent nursing care is care that is provided episodically, irregularly, or for limited period of time. Examples include:
- Episodic: Dressing changes and treatment for a recurring leg ulcer for a diabetic resident,
- Irregularly: Monitoring blood sugar levels by finger stick when a change in the resident's mental status is noted, and
- Limited Time Period: Blood pressure checks daily or weekly for two weeks.
Individuals who require only intermittent nursing care are allowed to enter or stay in assisted living if the provider wishes to care for the resident. |
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Q. What if a resident develops one of the seven conditions after he or she is already in an ALP?
A. If a resident develops one of the seven conditions after admission, the resident may stay, if the resident wants to stay, and if the ALP can demonstrate to the Department that it can adequately care for the resident. The Department will issue a level of Care 3+ (LOC3+) waiver for the resident. Any waivered residents will be monitored during the Department's inspection process.
If a resident moves to a higher level of care, and the anticipated time period for that higher level of care is less than 30 days, then it is not necessary for the ALP to request a waiver.
This waiver process is consistent with the "Aging-in-Place" philosophy. |
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Q. What will happen to the current residents in an ALP? If they are a LOC3+ will they have to leave?
A. Current residents will certainly be permitted to stay in an ALP. The ALP will have to conduct an assessment of the residents and determine the LOC. We expect that providers will request licensure authority based on the type of residents that they already have. LOC3+ residents can stay in an ALP if the ALP can demonstrate that it can properly care for the resident and meet the requirements of the regulations.
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Q. What if the ALP disagrees with the Department's decision to deny request for a waiver?
A. If a provider or a resident's representative disagrees with the Department's decision to deny a waiver, they can appeal to the Department within five days. The Department will reconsider the request, with any additional information, and respond to the ALP within ten days.
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Q. Does a Provider have to provide all levels of care? Or, does a provider have to offer all services to a resident?
A. No. A provider may choose to offer only LOCI or LOC2 services. A provider may also choose not to offer incontinence care or diabetic meals or to allow unlicensed staff to give medications. There are absolutely no penalties to the provider for not offering these services. However, the provider must notify the resident of these restrictions in advance.
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Q. Are the Seven Conditions a violation of the Federal Fair Housing Act?
A.No. The Attorney General's Office has determined that the regulations do not violate the Federal Fair Housing Act.
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Q. Is there any Medicaid reimbursement for assisted living?
A. The Department of Aging has a waiver program for a small number of (about 40) residents. In these homes, care givers must take a special medication course if they are to administer medications to the residents. Before we can apply to HCFA to receive additional Medicaid funding for residents in assisted living, we must have quality standards in place across the board. The assisted living regulations are a first step toward Medicaid reimbursement. The Department is hopeful that after the regulations are in place, we can work with HCFA and providers to develop demonstration projects leading toward this goal. |
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Q. Does the Department have the resources to monitor assisted living?
A. The Department is in the process of hiring ten surveyors. We have developed an MOU with both the Office on Aging and the Department of Human Resources to allow these two agencies to monitor the homes they have previously regulated.
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Q. What will be the role of the Office of Aging and the Department of Human Resources?
A. The Office of Aging and the Department of Human Resources will continue to offer subsidies to certain ALPs and continue to monitor those ALPs that they previously monitored in accordance with an MOU with the Department. They will continue to provide technical assistance to these programs. The Office of Aging will also monitor all ALPs with four to 16 residents.
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Q. Why aren't the ALP regulations as strict as the nursing home regulations?
A. Although an ALP may care for persons who otherwise might be cared for in a nursing home, it is not a nursing home. An ALP is an alternative to nursing home care or placement. Admission to an ALP is based on an individual's choice. The setting is residential with fewer professional care givers. The level of care and services will not be the same. Consumers are aware of this. The nursing home regulations (sometimes called OBRA regulations) are specific to an institutional setting and geared toward a large population of residents who need skilled care. The number of residents in an ALP who will require this level of care is minimal.
The assisted living regulations are mandated by State law. We had the opportunity to develop common-sense, outcome-based regulations that allow providers flexibility and creativity, and at the same time, provide for resident protections. |
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Q. Why do the regulations treat small and large providers the same way, and is this fair?
A. The regulations are sufficiently flexible to allow for the differences between small and large providers. Physical plant requirements are based on number of residents and are not set across the board. Examples include the need for assist rails, life safety code requirements, rest rooms, outside lighting, food service, plans review, placement of rooms, etc. Some have criticized the regulations as "one size fits all." This dismisses a carefully-crafted and well-thought-out body of rules with a slogan that is simply untrue.
There is consistency in those portions of the regulations that address quality of care and expected outcome, regardless of a facility's size. Our intent is to define the minimum standards of care that all citizens of Maryland are entitled to expect.
Each provider is expected to conduct an assessment of residents, complete a basic service plan, document serious incidents, maintain documented emergency information and conduct a reevaluation of each resident every six months. Each provider is required to have sufficient staff and services to meet the needs of its residents. These simple, common-sense requirements are consistent with what other states and national organizations require, regardless of provider size. These standards provide maximum flexibility and give the provider ample leeway to comply with the regulations in as efficient way as possible. With respect to the medication administration issue, it is already illegal, and has been for some time, for unlicensed staff to administer medications without proper training and supervision in accordance with the Nurse Practice Act. The new regulations simply reflect that fact. |
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Q. What is the cost of the regulations? Will costs cause the closure of small homes? Or, force them to go "underground"?
A. The Department has visited homes throughout the State and conducted an informal assessment of how much it would cost to comply with the regulations. In virtually every case, we have found that, although there may be a cost, it would not cause closure. We have also found many homes which provide quality care in clean environments with reasonable fees.
We do believe a small number of homes will go underground or close because the owners have no intention of complying with the regulations. Others, specifically the small providers, will incur some expense with implementation. The sole purpose of the regulations is to obtain and sustain quality and to bring all providers up to a standard level of performance. We have tried to keep expenses and costs to a minimum, and believe that costs are in an acceptable range. Because providers are at all levels of compliance, it has been difficult to estimate the exact cost per program. During the 1998 General Assembly, SB 722 sponsored by Senator Madden and passed by the Legislature, requires the Department to monitor costs of the new regulations and to report back to them. |
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Q. What has the Department done to reduce the costs of implementation?
A. DHMH, the MDOA and DHR are all sensitive to the prospect of increased cost to both the residents and providers. We have worked with the industry toward many compromises where they are appropriate. In addition, we are working with a variety of resources to find creative and new ways to assist providers with compliance. For example:
- The University of Maryland Law School is developing a model resident agreement that can be used by all ALPS.
- Several work groups have come together to develop the assessment tool and medication training curriculum. The medication training curriculum was developed so that it could be taught in modules so that employees would not be away from the work place for extended periods of time.
- The Board of Nursing is working with the Maryland Nurses Association to provide training to all medication givers at no cost. DHMH is working with the Baltimore City churches to provide training as well.
- DHMH supported a delay in enforcement for those homes with 15 and fewer residents until after January 1, 1999.
- Any of the physical plant requirements are waiverable if the ALP can demonstrate that compliance would cause a financial burden and that residents will not be harmed or jeopardized.
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Q. What are the paperwork requirements?
A.The regulation requires minimal paperwork and is limited to information that is necessary for an average person to adequately care for an assisted living resident.
- Who to call in case of an emergency including any advance directives or guardianship papers;
An assessment of the resident's medical condition based on information certified by a health care provider and psychosocial information collected by the assisted living manager;
- A service plan or written description of the needs of the resident and how the ALP will meet them (must be reviewed and updated every six months);
- The resident agreement or contract between the provider and the resident which states obligations of both parties;
- Documentation of any serious incident; and any care notes and medication records.
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Q. What is the status of the assessment tool?
A. After the AELR Hearing on March 23, 1998 and after review of the comments from the public after the field test, the assessment tool was significantly reworked to streamline the scoring procedure and to make it easier to use. A Guide has also been prepared to assist users.
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Q. What about physical plant requirements?
A. The physical plant requirements are more prescriptive than existing regulations to ensure that each ALP provides enough space for residents, sufficient plumbing fixtures and basic furnishings. For example, the regulations provide for a minimum room size of 120 sq. ft. for two persons, 35 sq. ft. of multi-purpose floor space per resident for dining, living and recreational space, one toilet for every four residents and one bathtub or shower for every eight residents. Any of the physical plant requirements are waiverable if the ALP can demonstrate that compliance would cause a financial burden and that residents will not be harmed or jeopardized.
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Q. Do the regulations really require "two comfy pillows? " Does this make sense when the regulations are vague in other areas?
A. Yes, in some areas the regulations are very specific including a requirement for two comfortable pillows. The Regulations Work Group debated this and decided that in certain areas it was appropriate to be very specific, and in others, it was appropriate to allow for flexibility. In the areas where flexibility and creativity are encouraged, it is clear that the needs of the residents must be met. |
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Q. What about smoking?
A. All ALPs will have to comply with Maryland's smoking in the work place regulations. |
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Q. Do the regulations require that ALPS have a dietician on staff or to have menus approved by dieticians?
A. The regulations do not require a dietician to be on staff. However, they do require a dietician to approve a four week cycle of menus. This is currently an existing requirement in the Department of Aging regulations. Menus must be planned one week in advance to ensure proper diets that will meet the needs of the residents. Substitutions are permitted if they are appropriate. |
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Q. How do the regulations compare with other states?
A. The Maryland regulations are about in the middle. Some states have stricter regulations and others are less restrictive. Nearly all states regulate both small and large providers. Assessments prior to move-in are required. Service plans and nursing visits are required. Physical plant requirements in most states are stricter. Resident rights and contractual agreements are required. The Maryland regulations are also consistent with national standards.
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Q. Where do we go from here?
A. Members of the Steering Committee have been invited to continue working with the Department to monitor strengths and weaknesses of the new regulations. Specifically, this group, comprised of government officials, representatives of the industry and consumer groups will have input to the Department concerning success of the waiver process, cost of the regulations and coordination between local governments and the state agencies. |
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Q. Can we be sure that these regulations will protect our citizens?
A. We believe that they will. Although the regulations are not perfect, we believe they are an appropriate starting point. The Department is committed to making the Assisted Living Program work, with minimal disruption and chaos to both consumers and providers. We plan on continuous monitoring and evaluation of the implementation process. We fully expect that improvements will be made to the regulations as we establish baseline information. |
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Q. What are the major building and environmental requirements?
A. BUILDING AND ENVIRONMENTAL REQUIREMENTS
GENERAL PHYSICAL PLANT REQUIREMENTS
- Building and common areas:
- in good repair
- clean
- free from hazards
- free from insects and rodents
- Bathtubs, shower stalls and lavatories:
- The program shall provide:
- adequate storage
- locked storage
- Cleaning supplies and hazardous materials:
- Furnishing and equipment
- maintained
- repaired in timely manner
- Furnishings in convenient areas which do not create hazards
WATER SUPPLY
- SEWAGE DISPOSAL
- program served by an approved public source
- program served by an approved private disposal service
- SECURITY
- Lockable doors and windows
- Device to alert staff to individuals entering or leaving building
- ASSIST RAILS
- in stairways
- toilets, showers and bathtubs
- in programs over 17 beds, rails on both sides of hall/corridors
FIRE AND EMERGENCY PRECAUTIONS
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- Local fire and building codes
- Life Safety Code NFPA 101
- Hand extinguishers
- staff instructed in proper use
- conveniently available
- standard and approved types
- Emergency and evacuation plans
- conduct fire drills
- disaster plan and drills
- SMOKING
- policies and procedures to minimize risk
- comply with COMAR.09.12.23 ventilation requirements
COMMON USE AREAS
- Multipurpose and living space and dining room
- at least 35 sq ft per bed for multipurpose space
- does not include service areas, offices, entrance ways, closets/lockers, wardrobes or spaces were ceiling height too low for habitable space
- well lighted and ventilated
- accessible
- sufficient numbers of comfortable chairs sofas, reading lamps and tables
- Outdoor space
- well lighted
- 9 or more beds, security and supervision
- Public toilets
- 17 or more beds provide public rest room
- Kitchen
- adequate storage, preparation areas, equipment to deliver foods
- space to wash, sanitize, and store
- ice making capabilities
- obtain food from sources that comply with all laws and regulations
- promptly discard spoiled foods
- maintain hazardous foods at 45º F or 140º F or above, until served
RESIDENT'S ROOM AND FURNISHINGS
- Resident room
- no more than two to a room
- 80 sq. ft. single & 120 sq. ft. double; after implementation
- 70 sq. ft. single & 120 sq. ft.; before implementation (current DHR and MDOA requirement)
- privacy curtains, screens or dividers in double occupancy upon request
- window shades or equivalent
- Furnishings
- bed at least 36 inches wide
- comfortable chair
- two pillows
- two dresser drawers
- bedside or over bed lamp
- sufficient linens
- Bathrooms for residents
- at least one toilet per four
- one lavatory per four
- bathtub or shower, one per eight
ILLUMINATION
- Illumination
- all rooms shall have an outside window at least 10% of rooms required floor area
- artificial light as required, ie night lights
HEATING, VENTILATION AND AIR CONDITIONING
- Heating, Ventilation and Air Conditioning
- Minimum temperature of 70º F in cold weather and 80º F in hot weather
- Thermostat control
- Sufficient ventilation to prevent excessive heat smoke or noxious odors
RADIATORS
- If steam or hot water and reaches 130º F
LAUNDRY
- May be done on or off sight
- meets needs of residents
- processed to prevent infection
- sanitized in sufficient hot water or using chemical agents
TELEPHONES
- One to eight residents; one common use phone
- emergency numbers posted at phone
- Nine to 16 a second common use phone
- Greater than 17
- wiring in resident's rooms
- adequate number of common use phones to meet the residents needs
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