On July 30, 2007, CHLP filed a petition for rule-making with the NJ Department of Community Affairs (DCA), seeking to amend current regulations in order to provide residents of Residential Health Care Facilities (RHCFs) rights similar to those of people residing in rooming and boarding houses. The proposed changes address three areas of concern: (1) the rights of residents threatened with involuntary removal from the facility; (2) access to RHCFs by representatives of government, social service and
legal aid agencies; and (3) resident privacy and free exercise of religion.
Until 2005, RHCFs were licensed and regulated by the NJ Department of Health and Senior Services, whereas rooming and boarding houses were licensed and regulated by DCA. In order to consolidate and standardize practices regarding these two types of facilities with similar populations (low-income people with disabilities), Acting Governor Codey transferred oversight of RHCFs to DCA. As the rule-making petition states, “The reorganization also provided DCA with an important opportunity to thoroughly reexamine the existing RHCF rules and make much-needed changes, particularly with regard to evictions, emergency transfers, access by advocates and the privacy of residents.” With the petition, CHLP hopes to persuade DCA to remedy large discrepancies between the rights of
consumers residing in RHCFs and those residing in rooming and boarding homes.
The proposed changes include:
Replace involuntary discharge procedures with judicial eviction procedures similar to those used by rooming and boarding home operators and include an emergency transfer mechanism for cases involving imminent danger.
Require RHCF operators to affirmatively facilitate access by employees of public and private agencies and remove a resident-consent provision that has been used to prohibit access by employees of the CHLP and other community agencies.
Incorporate protections for the privacy of residents receiving and sending mail and require operators to respect the religious-based dietary restrictions of residents.
CHLP attorneys Marc Snyder, Steve Leder, David Lazarus, and Stuart Weiner collaborated on the rule-making petition.
The petition follows:
BEFORE THE NEW JERSEY DEPARTMENT OF COMMUNITY AFFAIRS
The Office of the Commissioner
Department of Community Affairs
P.O. Box 800
Trenton, NJ 08625-0800
______________________________________________________________________________
Petition for Rule-Making Regarding the Rights of Residents
of Residential Health Care Facilities
______________________________________________________________________________
Community Health Law Project, Petitioner
225 East State Street
Trenton, New Jersey 08608
(609) 392-5553
TABLE OF CONTENTS
1. INTRODUCTION ........................................................................................................... 3
2. SUBSTANCE OF RULE-MAKING REQUESTED .................................................... 3
A. EVICTIONS AND EMERGENCY TRANSFERS............................................................................................................ 3
B. ACCESS BY PUBLIC AND PRIVATE AGENCIES............................................................................................................... 5
C. RESIDENT PRIVACY AND FREE EXERCISE OF RELIGION ............... 6
3. AUTHORITY OF DCA TO AMEND RHCF REGULATIONS ................................ 6
4. SUMMARY AND REQUEST FOR RULE MAKING .................................................6
5. PROPOSED REGULATIONS ...................................................................................... 8
a. PROPOSED N.J.A.C. 8:43-14.2........................................................................ ..8
b. PROPOSED N.J.A.C. 8:43:14.12 ...................................................................... 9
c. PROPOSED N.J.A.C. 8:43:14.13 ...................................................................... 9
d. PROPOSED N.J.A.C. 8:43:4.14........................................................................10
e. PROPOSED N.J.A.C. 8:43:App. A................................................................... 11
f. PROPOSED N.J.A.C. 8:43:App. B................................................................... 14
INTRODUCTION
The Community Health Law Project ("Petitioner") is a non-profit advocacy and legal services organization dedicated to serving the needs of low-income people with disabilities in New Jersey. In its 30 years of existence, Petitioner has provided services to more than 55,000 individuals and has advocated successfully for public policy initiatives affecting the rights and quality of life of citizens with disabilities in the State. Petitioner’s interest in this request stems from its mission of serving people with disabilities in New Jersey. Petitioner has no economic interest in this request.
This petition seeks to amend current regulations so as to provide residents of Residential Health Care Facilities ("RHCFs") with rights similar to those afforded to people residing in rooming and boarding houses. Our proposed regulatory amendments are set forth below.
Petitioner’s central areas of concern pertain to the RHCF regulations governing (1) the rights of residents threatened with involuntary removal from the facility; (2) access to RHCFs by representatives of government, social service and legal aid agencies; and (3) resident privacy and free exercise of religion. Each of these topics is detailed below.
SUBSTANCE OF RULE-MAKING REQUESTED
EVICTIONS AND EMERGENCY TRANSFERS
In 2005, Acting Governor Richard Codey transferred the task of licencing and regulating RHCFs from the Department of Health and Senior Services ("DHSS") to the Department of Community Affairs ("DCA"). Pursuant to the reorganization plan, all of the powers, functions and duties exercised by the Commissioner of Health and Senior Services, to the extent that they related to RHCFs, were transferred to the Commissioner of Community Affairs. Furthermore, all previous references to DHSS in state statutes, regulations and other documents or proceedings relating to RHCFs were to be read, from that time forward, as referring to DCA. See Reorganization Plan No. 002-2005, 37 N.J.R. 1105(a)(April 18, 2005).
The objective of the transfer of authority to DCA was to consolidate the oversight of RHCFs with DCA’s existing oversight of rooming and boarding houses. The stated rationale was the "similarit[y] between residential health care facilities and boarding houses"; specifically, "similar populations" and "roughly equivalent levels of service." Id. We believe that the reorganization also provides DCA with an important opportunity to thoroughly re-examine the existing RHCF rules and make much needed changes, particularly with regard to evictions, emergency transfers, access by advocates and the privacy rights of residents. The changes that we propose will help remedy large discrepancies between the rights of consumers residing in RHCFs and those
residing in rooming and boarding homes.
The current regulations governing the removal of RHCF residents are at N.J.A.C. 8:43-4:13 ("Involuntary Discharge"), N.J.A.C. 8:43-4:12 (“Admission and Retention of Residents”), N.J.A.C. 8:43-14.2 ("Rights of Each Resident") and Appendix A to the regulations (“Guidelines for Inappropriate Behavior and Resident to Resident Abuse”). These regulations should be read in conjunction with N.J.A.C. 8:43-6.1(a)(7) (“Resident Care Policies and Procedures”) which directs the facility to develop policies, procedures and criteria for the "discharge, termination, transfer, and readmission" of residents. N.J.A.C. 8:43-4:13 permits the facility to discharge a resident upon 30 days’ written notice. The discharge must be
based upon the facility’s written policies and procedures and, generally, must conform to the criteria outlined in N.J.A.C. 8:43-14.2(a)(4).
Resident appeals from involuntary discharge are governed by N.J.A.C. 8:43-4:13(b). The resident may "appeal" in writing to the administrator who is vested with sole authority to decide the case. The regulations do not provide for an independent, neutral fact-finder or decision-maker in the appeals process. The facility administrator, who may have been directly or indirectly involved in the decision to discharge, is the sole decision-maker. This creates an inherent conflict of interest that deprives residents of any meaningful review and must be remedied.
In addition, the current regulations have many other deficiencies, including a lack of specificity in the notice given to the resident; a vague and inaccessible written appeals process; and the lack of any meaningful fact-finding and decision-making process.
In place of the current rules, we propose that RHCF administrators be required to utilize judicial eviction procedures when they believe that legitimate reasons exist to seek the permanent removal of a resident. This will protect RHCF residents from arbitrary or unfair removal and insure that due process of law is respected. Rooming and boarding home operators have long been required to utilize the same judicial eviction proceedings and it has not created a hardship for them.
In order to address cases involving imminent danger, we have also proposed a procedure for the emergency transfer of residents without the requirement of eviction proceedings. Such an emergency transfer would be available only in cases involving imminent danger to the safety of the resident or others and which require emergency transfer to a hospital or other appropriate facility on a temporary basis. The resident’s placement at the RHCF would be preserved during such temporary, emergency transfer, so as to ensure that he or she may return to the RHCF when discharged from the hospital or emergency facility.
Under our proposal, the resident’s rent obligation would continue to accrue during an emergency transfer from the RHCF. In many instances, administrators are already designated by the Social Security Administration to be the representative payee of residents. In such cases, RHCF operators would be able to continue to pay themselves any rent that is legally due and owing out of the SSI or Social Security benefits of the resident. Where this is not the case, it will be incumbent upon the resident to make arrangements for the payment of rent. The administrator would retain the right to institute summary eviction proceedings against a hospitalized resident, if rent is not paid.
We also propose that whenever an RHCF is planning to institute eviction proceedings, an “informal conference” should be offered to the resident, in an attempt to resolve problems without resort to eviction proceedings. We have found that, on many occasions, problems between the facility and resident can be corrected without the stress and expense of court proceedings. We have included a proposed form of “Notice of Right to Informal Conference”, to be used by facilities, as a new Appendix B to the RHCF regulations.
ACCESS BY PUBLIC AND PRIVATE AGENCIES
The current RHCF regulations require resident consent to visits from non-residents, including visits from legal services representatives, employees of the Department of the Public Advocate, volunteers of the Office of the Ombudsman for the Institutionalized Elderly and representatives of governmental welfare and social agencies. N.J.A.C. 8:43-14.2 (11). Facility operators have, on occasion, improperly relied upon this regulation to prohibit access by community agency representatives by claiming that a resident has not informed the operator of his or her consent to such a visit. In practice, this effectively and inappropriately places the facility in the role of gatekeeper and unnecessarily involves the operator in evaluating a resident’s "consent" or
objection to a visit. RHCF residents may not be familiar with community agencies and their services or know how to contact them. Residents may not understand any “procedure” the operator may create to express their consent to visits by such agencies. Perhaps most importantly, residents may be afraid to notify the facility of their consent to such visits, particularly when there is a conflict or dispute with the facility operator. This can be a major barrier to the protection of resident rights in RHCFs and should be addressed.
By contrast, the DCA regulation governing access to residents of rooming and boarding houses mandates that operators “affirmatively facilitate” access for employees of public and private agencies to such facilities and residents. N.J.A.C. 5:27-3.4.
We also believe that N.J.A.C. 8:43-14.2 (11) conflicts with the statute addressing the access of governmental and legal services organizations to residents of RHCFs. In the statute, the Legislature directed that:
Rules, regulations and standards
The State Department of Health shall adopt, promulgate and enforce such rules, regulations and standards with respect to the residential health care facilities to be approved hereunder as it may deem necessary to assure that: ...such persons are not deprived of any constitutional, civil or legal right solely by reason of their living in such facilities; and that employees of public and private agencies have reasonable access to such facilities and other citizens have reasonable access upon receiving the consent of the resident to be visited by them...
N.J.S.A. 30:11A-3 (emphasis added)
The plain meaning of the statute is to create two distinct categories of permitted access to RHCFs: (1) requiring operators to provide employees of public and private agencies reasonable access to the facility; and (2) requiring facilities to provide reasonable access for “other citizens”, on condition that they obtain the consent of the resident to be visited.
Unfortunately, the current DHSS regulation lumps these two standards together, requiring affirmative resident consent to visits by government and social services agencies, advocates and legal aid organizations. The regulation states that:
The facility shall, with the consent of the resident being visited, permit visitors, legal services representatives, employees of the Department of the Public Advocate, employees and volunteers of the Office of the Ombudsman for the Institutionalized Elderly, representatives of governmental welfare and social agencies, and all governmental representatives full and free access at a reasonable hour to the facility in order to visit with, and make personal, social and legal services available to all residents.
N.J.A.C. 8:43-14.2 (11)(i)
We believe that the current regulation conflicts with the intent of the Legislature to ensure that RHCFs are open to public and private agencies that serve residents and monitor conditions in these facilities. It has created a dangerous wall to access by agencies that are able to act as a check against the violation of resident rights. The regulation should be amended to encourage the kind of access contemplated by the Legislature and that will serve the interests of residents.
RESIDENT PRIVACY AND FREE EXERCISE OF RELIGION
Additionally, we propose that additional regulatory language be added to the RHCF regulations in order to incorporate protections for the privacy of residents to receive and send mail and to require operators to respect the religious-based dietary restrictions of residents. These basic rights are already provided to residents of rooming and boarding houses and should be extended to RHCF residents. See N.J.A.C. 5:27-3.1.
AUTHORITY OF DCA TO AMEND RHCF REGULATIONS
DCA has the authority to amend regulations regarding RHCFs. In Reorganization Plan No. 002-2005, Governor Codey ordered that the powers, functions, and duties exercised by DHSS, to the extent that they related to RHCFs, be transferred to and established within [DCA]." See 37 N.J.R. 1105(a). The Plan states that any statute, rule, or regulation relating to RHCFs that refers to DHSS, as the agency with oversight responsibility, shall henceforth be read to mean DCA.
As such, the statutory authority authorizing the DHSS to "adopt, promulgate and enforce...rules, regulations and standards with respect to residential health care facilities" now authorizes DCA to promulgate such regulations. N.J.S.A. 30:11A-3.
SUMMARY AND REQUEST FOR RULE MAKING
Based upon the foregoing, the Petitioner requests that DCA amend the current RHCF regulations, as set forth below. If DCA deems it necessary to publish proposed rule changes in the New Jersey Register and/or hold hearings regarding the proposed rule changes, please inform the undersigned of any such determinations or actions on this petition.
Respectfully Submitted
__________________________________
Stuart H. Weiner
Managing Attorney
PROPOSED REGULATIONS
N.J.A.C. 8:43-14.2
8:43-14.2 Rights of each resident
(a) Resident rights, policies, and procedures shall ensure that, as a minimum, each resident admitted to the facility:
1. Is entitled to a safe, healthful and decent living environment and considerate and respectful care that recognizes the dignity, individuality, and privacy rights of the resident. Is informed of these rights, as evidenced by his or her written acknowledgment, and is given a statement of these rights and the facility's rules and regulations, and an explanation of the resident's responsibility to adhere to all regulations of the facility and to respect the personal rights and private property of other residents;
2-3 (unchanged)
4. Is discharged or removed from the facility only as set forth in N.J.A.C. 8:43-4.13.
5-10... (unchanged)
11. May associate and communicate privately with persons of his or her choice, may have reasonable opportunities for private and intimate physical and social interaction with other people, may join with other residents or individuals within or outside the facility to work for improvements in resident care, may send and receive personal mail unopened, and upon his or her request, shall be given assistance in the reading and writing of correspondence.
(i) The facility shall ensure that employees of public and private agencies, including legal services representatives, employees of the Department of the Public Advocate, employees of the Community Health Law Project, employees and volunteers of the Office of the Ombudsman for the Institutionalized Elderly, representatives of governmental welfare and social agencies, and all governmental representatives, have reasonable access to the facility and direct access to its residents, with or without resident consent; and that other visitors have reasonable access upon receiving the consent of the individual resident to be visited.
12-14... (unchanged)
15. Has the right to unrestricted communication, including the right to receive and send unopened correspondence and personal visitation with any person of his or her choice during visiting hours, which must be set at reasonable times and for no less than 12 hours per day. The facility shall develop policies specifying times when visits are allowed and shall conspicuously post its visiting hours;
16- 19.... (unchanged)
20. Is assured of exercising civil and religious liberties, including the right to independent personal decisions and the right to have adequate substitutes provided for foods or combinations of foods which the resident's religious beliefs forbid him or her to eat. No religious beliefs or practices, or any attendance at religious services, shall be imposed upon any resident or facility. Knowledge of available choices shall not be infringed upon and the facility shall encourage and assist in the exercise of these rights. Arrangements shall be made, at the resident's expense, for attendance at religious services of his or her choice when requested;
N.J.A.C. 8:43-4.12
8:43-4.12 Admission and retention of residents
(a)-(d)....(unchanged)
(e) Is discharged or removed from the facility only as set forth in N.J.A.C. 8:43-4.13.
(f)-(i)...(unchanged)
N.J.A.C. 8:43-4.13
8:43-4.13 Eviction; Informal Hearing; Emergency Transfer
(a) With the exception of an emergency transfer, as set forth in subsection (b), no Residential Health Care Facility shall discharge or remove a resident, except in accordance with the substantive and procedural requirements for eviction, as set forth in N.J.S.A. 2A:18-61.1 et seq.
(b) In addition to any written notices required by N.J.S.A. 2A:18-61.1 et seq., the facility shall, prior to commencing eviction proceedings, serve the resident with a Notice of Right to Informal Conference, setting forth the facts and circumstances that may lead to an eviction proceeding, in the form set forth in Appendix B. If the resident chooses to have an informal conference, he or she may be represented by counsel or assisted by an advocate of his or her choosing.
Where an informal conference has been requested by a resident, the facility shall not file a complaint for eviction until the informal conference has been completed.
( c) If a Residential Health Care Facility determines that a resident's behavior poses an immediate danger to himself or herself or others, and that the facility is not capable of providing proper care to the resident, it may arrange for the emergency transfer of the resident to a hospital or other facility offering an appropriate level of care. An emergency transfer is a temporary removal only and the resident’s bed and placement shall be preserved during such emergency transfer. Upon discharge from the hospital or other facility to which he or she was transferred, the resident shall be readmitted to the Residential Health Care Facility.
( 1) The Department, the county welfare agency and the resident’s guardian, in the case of a resident who is under legal guardianship, shall be immediately notified of any such emergency transfer
N.J.A.C. 8:43-4.14
8:43-4.14 Notification requirements
(a) The resident's family, guardian, and/or responsible person or community agency, the county welfare agency and any other agency in which the client is a participating program member or under treatment, shall be notified, promptly after the occurrence, in the event of the following:
1. Any significant change in the resident's physical or mental status;
2. Any serious accident, criminal act or incident occurs which involves the resident and results in serious harm or injury or results in the resident's arrest or detention;
3. The emergency transfer of or institution of legal eviction proceedings against the resident from the facility, pursuant to N.J.A.C. 8:43-4.13 ; or
4. The death of the resident
(b) The Department shall also be notified of the events in (a)2 above.
( c) The notification required in (a) above shall be given at the time of occurrence, and then documented in the resident's record.
APPENDIX A
RESIDENTIAL HEALTH CARE FACILITIES
GUIDELINES FOR INAPPROPRIATE BEHAVIOR
AND RESIDENT TO RESIDENT ABUSE
I. Upon admission, the initial resident assessment, MDS 2.0 or approved
equivalent, should include a psycho-social behavior component. If
interventions to address identified behavior issues are appropriate,
these should be incorporated into the care plan. A reassessment should
be completed at least annually, or at any time when a resident's
pattern of behavior changes. The resident's response to interventions
should be recorded in documentation established by the health
maintenance and monitoring service.
II. Inappropriate behavior and/or actions should trigger an immediate
reassessment with adjusted interventions. The facility should notify
the physician, advanced practice nurse or physician assistant and the
designated resident representative of the incidents or behaviors. The
resident's response should be documented. The facility's actions and/or
interventions in response to behavior changes should also be part of
the plan of care and should be documented to ensure implementation.
Prompt reassessment of behavioral changes will in most cases avert the
continued progression of inappropriate behavior.
III. Inappropriate behavior and/or actions involving other residents must be
identified in the records of all involved residents, including their
assessments, any interventions, and the resident's responses. If the
physician, advanced practice nurse or physician assistant and
designated resident representatives were notified, this must be
documented in the records of all involved residents.
IV. Incidents of inappropriate behavior or actions of abuse between residents
should result in the following actions, as applicable:
A. Notification of the health maintenance and monitoring nurse or the
physician, advanced practice nurse or physician assistant who
will determine if the resident should be transferred on an emergency basis, pursuant to N.J.A.C.8:43-4.13, or whether an immediate assessment will be done.
B. Documentation of interventions and responses of residents.
C. Notification of residents' designated representatives.
D. Protection of involved residents' civil and constitutional rights.
E. Determination by the administrator of the facility's ability to
assure safety while working toward resolution.
F. Implementation of emergency or short-term precautions to assure
safety while working toward resolution.
G. Notification of police, if necessary.
V. An emergency transfer from the facility should be based on the appropriate evaluation and transfer order, as set forth in N.J.A.C. 8:43-4.13.
VI. In the event of an emergency situation only:
A. Have the resident removed to the emergency room of the local
hospital for medical and/or psychiatric evaluation and
consultation by a physician. Return of the resident shall be
based on the criteria and procedures set forth in N.J.A.C. 8:43-4.13.
B. File a police complaint against the abuser and have the individual
removed. The complaint can be filed by the facility or the
abused party.
C. Notify all agencies (i.e., Medicaid if applicable; Ombudsman for
the Institutionalized Elderly, if the resident is over 60 years
of age; the county welfare agency and the Department of Community Affairs). In
the event that all guidelines have been followed and resolution
has not taken place, request assistance from the Department of
Community Affairs, Residential Health Care Program.
VII. Facility policies and procedures to address inappropriate resident
behavior, including resident to resident abuse, should include all of
the above outlined actions.
APPENDIX B
NOTICE OF RIGHT TO INFORMAL CONFERENCE
To: ________(Resident’s Name)_________________________________________
Name of Facility: ______(RHCF Name) _____________________________________
Date: ______________________
******************************************************************************
Be advised that eviction proceedings may be filed against you by this facility. Before we file an eviction complaint, you have the right to an informal conference with us. The purpose of the informal conference is to discuss the facts and circumstances that may lead to an eviction proceeding. During the informal conference, we will attempt to resolve any problem or dispute between us, without resort to legal proceedings.
If you want to have an informal conference, you must request it within 10 days of service of this notice upon you. You have the right to be represented by an attorney or any advocate of your choosing at the informal conference. If you request an informal conference, we will not file for eviction until the informal conference has been completed.
Our reason(s) for considering eviction proceedings are as follows (provide specific details):
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
Date:______________________ ________________________________________________
Name & Title of Authorized Agent
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