Administrative Rule Review Report  #AR07-067

Legislative Service Office

27-Nov-07

AGENCY: Department of Health.

DATE SUBMITTED: November 27, 2007.

SUBJECT: Chapter 12, Program Administration of Assisted Living Facilities.

NATURE OF RULES:                     Legislative and procedural.

STATUTORY AUTHORITY:         W.S. 35-2-908.

DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION SUBMITTED BY THE AGENCY TO LSO: The LSO has no record that the rules were   delivered to the LSO within 10 days after adoption as required by W.S. 28-9-103(b).  Otherwise, procedural compliance is apparently complete to date.

SUMMARY OF RULES:       The Department of Health is charged with licensing of health care facilities, W.S. 35-2-901 through 912.  These rules amend the Aging Division's existing rules on assisted living facilities ("ALFs") to:

· Provide for the issuance of additional provider manuals or bulletins to interpret the rules;

· Define a "Level 2 License" for ALFs with secure units, as authorized by a 2005 statutory amendment providing that ALFs may include secured units for people with Alzheimer's disease or other dementia conditions;

· Define management and staffing requirements for Level 1 and Level 2 ALFs;

· Require fingerprint background checks of all facility staff;

· Define minimal infection control measures;

· Additional detail for management of residents' personal funds deposited with the facility;

· Revise food service, nutrition and supervision requirements;

· Define services that may not be provided under the Level 1 ALF license;

· Assessment, admission criteria and discharge requirements for Level 2 ALF residents.

FINDINGS:     The Department of Health is statutorily authorized to have access to criminal history record information, W.S. 7-19-106(a)(vii).  However, assisted living facility staff are not among those persons required by W.S. 7-9-201(a) to submit fingerprints for purposes of criminal background checks.  Nevertheless, the department has broad authority to adopt rules "necessary to protect the health, safety and welfare of patients of health care facilities licensed under" the health care facility licensing act, W.S. 35-2-908.  That authority is arguably adequate to require criminal background checks of assisted living facility staff.  The rules otherwise appear to be within the scope of statutory authority and legislative intent.

STAFF RECOMMENDATION:        That the Council recommend the Governor caution the agency as to the need to comply with all procedural requirements.  Further, that the rules be placed on the Consent List and be approved by the Council as submitted by the Agency. 

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Gerald W. Laska

Staff Attorney

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David K. Gruver

Assistant Director

GWL/