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    CHAPTER 67GENERAL PROVISIONS FOR ELDER GROUP HOMES, ASSISTED LIVING PROGRAMS, AND ADULT DAY SERVICESChapter rescission date pursuant to Iowa Code section 17A.7: 2031-03-11481—67.1(231B, 231C, 231D)  Definitions.  The following definitions apply to this chapter and to 481—Chapters 68, 69, and 70.
    "Accredited" means that the program has received accreditation from an accreditation entity.
    "Activities of daily living" means the following self-care tasks: bathing, dressing, grooming, eating, transferring, toileting, and ambulation.
    "Ambulatory" "ambulation" means physically and cognitively able to walk without aid of another person.
    "Applicable requirements" means the requirements in Iowa Code chapters 135C, 231B, 231C, 231D, 235B, 235E, and 562A, this chapter, and 481—Chapters 68, 69, and 70, as applicable, and includes any other applicable administrative rules and provisions of the Iowa Code.
    "Assistance" means aid to a tenant who self-directs or participates in a task or activity or who retains the mental or physical ability, or both, to participate in a task or activity. Cueing of the tenant regarding a particular task or activity means the tenant has participated in the task or activity.
    "Certified staff" means certified nursing assistants (CNAs) and certified medication assistants (CMAs) employed by the program.
    "Change of ownership" means the purchase, transfer, assignment or lease of a program and includes a change in the management company responsible for the day-to-day operation of the program, if the management company is ultimately responsible for any enforcement action taken by the department.
    "Dementia" means an illness characterized by multiple cognitive deficits that represent a decline from previous levels of functioning and includes memory impairment and one or more of the following cognitive disturbances: aphasia, apraxia, agnosia and disturbance in executive functioning.
    "Department" means the department of inspections, appeals, and licensing.
    "Director" means the director of the department.
    "Direct supervision" means the provision of guidance and oversight of a delegated nursing task through the physical presence of the licensed nurse to observe and direct certified and noncertified staff.
    "Elope" means that a tenant who has impaired decision-making ability leaves the program without the knowledge or authorization of staff.
    "Global Deterioration Scale" "GDS" means the seven-stage scale for assessment of primary degenerative dementia developed by Dr. Barry Reisberg.
    "Health care professional" means a physician, physician associate, registered nurse, licensed practical nurse via RN delegation or advanced registered nurse practitioner licensed in Iowa by the respective licensing board or eligible to practice in Iowa through compact licensure agreements.
    "Health-related care" means the same as defined in Iowa Code section 231B.1(5) and includes nurse-delegated assistance.
    "Human service professional" means an individual with a bachelor’s degree in a human service field, including but not limited to human services, gerontology, social work, sociology, psychology, or family science. Two years of experience in a human service field may be substituted for up to two years of the required education.
    "Impaired decision-making ability" means a lack of capacity to make safe and prudent decisions regarding one’s own routine safety as determined by the program manager or nurse or means having a GDS score of five or above.
    "Independent reviewer" means an attorney licensed in the state of Iowa who is not currently and has not been employed by the department in the past eight years, or has not appeared in front of the department on behalf of a health care facility in the past eight years. Preference shall be given to an attorney with background knowledge, experience or training in long-term care.
    "Indirect supervision" means the provision of guidance and oversight of a delegated nursing task through means other than direct supervision, including written and verbal communication.
    "Instrumental activities of daily living" means those activities that reflect the tenant’s ability to perform household and other tasks necessary to meet the tenant’s needs within the community, which may include but are not limited to shopping, housekeeping, chores, and traveling within the community.
    "In the proximate area" means an area located within a five-minute or less response time.
    "Medication setup" means the same as defined in Iowa Code section 231B.1(6).
    "Modification" means any addition to or change in physical dimensions or structure, except as incidental to the customary maintenance of the physical structure of the program’s facility.
    "Monitoring" means an on-site evaluation of a program, a complaint investigation, or a program-reported incident investigation performed by the department to determine compliance with applicable requirements. A monitor who performs a monitoring for the department shall be a registered nurse, human service professional, or another person with program-related expertise.
    "Nonaccredited" means that the program has been certified but has not received accreditation from an accreditation entity.
    "Noncertified staff" means unlicensed and uncertified personnel employed by the program.
    "Nurse delegation" means the action of a registered nurse, advanced registered nurse practitioner, or licensed practical nurse to direct competent certified and noncertified staff to perform selected nursing tasks in selected situations. The decision of a nurse to delegate is based on the delegation process, including assessment, planning, implementation, supervision, and evaluation of the tenant, nursing tasks, personnel, and the situation. The nurse, as a licensed professional, retains accountability for the delegation process and the decision to delegate. Licensed practical nurses may delegate within the scope of their license with the supervision of a registered nurse.
    "Occupancy agreement" "contractual agreement" means the same as defined in Iowa Code sections 231B.1(7) and 231C.2(9).
    "Part-time or intermittent care" means licensed nursing services and professional therapies that are provided in combination with nurse-delegated assistance with medications or activities of daily living and do not exceed 28 hours per week or, for adult day services, 4 hours per day.
    "Personal care" means the same as defined in Iowa Code section 231B.1(8).
    "Preponderance of the evidence" means that the evidence, considered and compared with the evidence opposed to it, produces the belief in a reasonable mind that the allegations are more likely true than not true.
    "Program" means one or more of the following, as applicable: an elder group home as defined in Iowa Code section 231B.1 and 481—Chapter 68, an assisted living program as defined in Iowa Code section 231C.1 and 481—Chapter 69, or adult day services as defined in Iowa Code section 231D.1 and 481—Chapter 70.
    "Program staff" means all employees of the program, regardless of certification or licensure status.
    "Qualified professional" means a facility plant engineer familiar with the type of program being provided, or a licensed plumbing, heating, cooling, or electrical contractor who furnishes regular service to such equipment.
    "Recognized accrediting entity" means the same as defined in Iowa Code sections 231C.2(11) and 231D.1(11).
    "Regulatory insufficiency" means a violation of an applicable requirement.
    "Restraints" means any chemical or manual method that restricts freedom of movement or normal access to one’s body or any physical or mechanical device, material or equipment that is attached or adjacent to the tenant’s body that the tenant cannot remove easily and that restricts freedom of movement or normal access to one’s body.
    "Routine" means more often than not or on a regular customary basis.
    "Self-administration" means a tenant’s taking personal responsibility for all phases of medication except for any component assigned to the program under medication setup, and may include the tenant’s use of an automatic pill dispenser.
    "Service plan" means the document that defines all services necessary to meet the needs and preferences of a tenant, whether or not the services are provided by the program or other service providers.
    "Significant change" means the same as defined in Iowa Code section 231C.2(12).
    "Substantial compliance" means the same as defined in Iowa Code section 231C.2(13) regarding a level of compliance with applicable requirements.
    "Tenant" means the same as defined in Iowa Code sections 231B.1(9) and 231C.2(14). In the context of adult day services, “tenant” means a “participant” as defined in 481—Chapter 70.
    "Tenant advocate" means the same as defined in Iowa Code section 231B.1(10).
    "Tenant’s legal representative" means the same as defined in Iowa Code section 231B.1(11). In the context of adult day services, “tenant’s legal representative” means a “participant’s legal representative” as defined in 481—Chapter 70.
    Related ARC(s): 0063D481—67.2(231B, 231C, 231D)  Program policies and procedures.    67.2(1)  A program’s policies and procedures must meet the minimum standards set by applicable requirements. All programs shall have policies and procedures related to the following:  a.  Reporting of incidents, including allegations of dependent adult abuse on incident report forms to provide a detailed incident report completed at the time of the incident and include statements from individuals, if any, who witnessed the incident. The program will identify in the program’s policy who of the program staff is responsible for completion of the initial report. The report will remain accessible for a minimum of three years. All accidents or unusual occurrences within the program’s building or on the premises that affect tenants will be reported as incidents.  b.  Allegations of dependent adult abuse consistent with Iowa Code chapter 235E and rules adopted pursuant to that chapter and, at a minimum, reporting requirements for staff and employees, and requirements that the victim and alleged abuser be separated.  c.  Evaluation of each tenant or participant. A copy of the evaluation tool or tools to be used to identify the functional, cognitive and health status of each tenant or participant will be included.  d.  Service plans.  e.  Medical needs of tenants or participants.  f.  Food service, including policies and procedures related to staffing, nutrition, menu planning, therapeutic diets, and food preparation, service and storage.  g.  Transportation.  h.  Staffing and training.  i.  Emergencies, including policies and procedures related to natural disasters, with an evacuation plan and procedures for notifying legal representatives in emergency situations as applicable.  j.  Managing risk and upholding tenant or participant autonomy when decision-making results in poor outcomes for the tenant or participant or others.  k.  Accidents and emergency response.  l.  Addressing sexual relationships between tenants and staff and between tenants with dementia greater than Stage 5 on the Global Deterioration Scale.  m.  Extraordinary lifesaving measures, including policies and procedures related to cardiopulmonary resuscitation (CPR).  n.  Narcotics protocol, including policies and procedures related to reconciliation and destruction.  67.2(2)  The program shall follow the policies and procedures established by the program.Related ARC(s): 0063D481—67.3(231B, 231C, 231D)  Tenant rights.  All tenants have the following rights:  67.3(1)  To be treated with consideration, respect, and full recognition of personal dignity and autonomy.  67.3(2)  To receive care, treatment and services that are adequate and appropriate.  67.3(3)  To receive respect and privacy in the tenant’s medical care program. Personal and medical records shall be confidential, and the written consent of the tenant obtained for the records’ release to any individual, including family members, except as needed in case of the tenant’s transfer to a health care facility or as required by law or a third-party payment contract.  67.3(4)  To be free from mental and physical abuse.  67.3(5)  To receive from the manager and staff of the program a reasonable response to all requests.  67.3(6)  To associate and communicate privately and without restriction with persons and groups of the tenant’s choice, including the tenant advocate, on the tenant’s initiative or on the initiative of the persons or groups at any reasonable hour.  67.3(7)  To manage the tenant’s own financial affairs unless a tenant’s legal representative has been appointed for the purpose of managing the tenant’s financial affairs.  67.3(8)  To present grievances and recommend changes in program policies and services, personally or through other persons or in combination with others, to the program’s staff or person in charge without fear of reprisal, restraint, interference, coercion, or discrimination.  67.3(9)  To be free from restraints.Related ARC(s): 0063D481—67.4(231B, 231C, 231D)  Program notification to the department.  The director or the director’s designee shall be notified within 24 hours, or the next business day, by the most expeditious means available:  67.4(1)  Of any accident causing major injury, including a substantial injury.  a.  “Major injury” is defined as any injury that:  (1)  Results in death; or  (2)  Requires admission to a higher level of care for treatment, other than for observation; or  (3)  Requires consultation with the attending physician, designee of the physician, or physician extender who determines, in writing on a form designated by the department, that an injury is a “major injury” based upon the circumstances of the accident, the previous functional ability of the tenant, and the tenant’s prognosis.  b.  The following are not reportable accidents:  (1)  An ambulatory tenant who falls when neither the program nor its employees have culpability related to the fall, even if the tenant sustains a major injury;  (2)  Spontaneous fractures;  (3)  Hairline fractures.  67.4(2)  When damage to the program is caused by a natural or other disaster, including physical impairments affecting operating (e.g., failure of a heating or cooling system or water heater failure).  67.4(3)  When there is an act that causes major injury to a tenant or when a program has knowledge of a pattern of acts committed by the same tenant on another tenant that results in any physical injury. “Pattern” means two or more times within a 30-day period.  67.4(4)  When a tenant elopes from a program.  67.4(5)  When a tenant attempts suicide, regardless of injury.  67.4(6)  When a fire occurs in a program and the fire requires the notification of emergency services, requires full or partial evacuation of the program, or causes physical injury to a tenant.  67.4(7)  When a defect or failure occurs in the fire sprinkler or fire alarm system for more than 4 hours in a 24-hour period.Note: Additional reporting requirements are created by other rules and statutes, including but not limited to Iowa Code chapters 235B and 235E, which require reporting of dependent adult abuse.Related ARC(s): 0063D481—67.5(231B, 231C, 231D)  Medications.    67.5(1)  If a program handles, stores, or administers controlled substances, the program shall be registered with the Iowa board of pharmacy as a care facility in accordance with 481—Chapter 551.  67.5(2)  Each program shall follow its own written medication policy, including the following:  a.  The program will not prohibit a tenant from self-administering medications.  b.  A tenant will self-administer medications unless:  (1)  The tenant or the tenant’s legal representative delegates in the occupancy agreement or signed service plan any portion of medication setup to the program.  (2)  The tenant delegates medication setup to someone other than the program.  (3)  The program assumes partial control of medication setup at the direction of the tenant. The medication plan will not be implemented by the program unless the program deems it appropriate under applicable requirements, including those in Iowa Code section 231C.16A and subrule 67.9(4).   c.  A tenant will keep medications in the tenant’s possession unless the tenant or the tenant’s legal representative, if applicable, delegates in the occupancy agreement or signed service plan partial or complete control of medications to the program, including the tenant’s choice related to storage.  d.  When a tenant has delegated medication administration to the program, the program will maintain a list of the tenant’s medications. If the tenant self-administers medications, the tenant may choose to maintain a list of medications in the tenant’s apartment or to disclose a current list of medications to the program for the purpose of emergency response, but the tenant remains responsible for the accuracy of the list.  e.  When medications are administered traditionally by the program:  (1)  The administration of medications will be provided by a registered nurse, licensed practical nurse or advanced registered nurse practitioner registered in Iowa, by an individual who has successfully completed a department-approved medication aide or medication manager course and passed the respective department-approved medication aide or manager examination, or by a physician associate (PA) in accordance with 481—Chapter 781. Injectable medications will be administered as permitted by Iowa law by a registered nurse, licensed practical nurse, advanced registered nurse practitioner, physician, pharmacist, or PA.  (2)  The program will maintain a list of each tenant’s medications and document the medications administered.  (3)  Medications and treatments will be administered as prescribed by the tenant’s physician, advanced registered nurse practitioner or PA.Related ARC(s): 0063D481—67.6(231B, 231C, 231D)  Another business or activity located in a program.    67.6(1)  A business or activity serving persons other than tenants of a program is allowed in a designated part of the physical structure in which the program is located if the other business or activity meets the requirements of applicable state and federal codes, administrative rules, and federal regulations.  67.6(2)  A business or activity conducted in the designated part of the physical structure in which the program is located shall not interfere with the use of the program by tenants or with services provided to tenants or disturb tenants or reduce access, space, services, or staff available to tenants or necessary to meet the needs of tenants.Related ARC(s): 0063D481—67.7(231B, 231C, 231D)  Waiver of criteria for retention of a tenant in the program.    67.7(1)    Time-limited waiver.  Upon receipt of a program’s request for waiver of the criteria for retention of a tenant, the department may grant a waiver of the criteria under applicable requirements for a time-limited basis. Absent extenuating circumstances, a waiver of the criteria for retention of a tenant is limited to a period of six months or less.  67.7(2)    Waiver petition procedures.  The following procedures shall be used to request and to receive approval of a waiver from criteria for the retention of a tenant:  a.  A program will submit the waiver request on a form and in a manner designated by the department as soon as it becomes apparent that a tenant exceeds retention criteria pursuant to an evaluation by a health care or human service professional.  b.  The department will respond in writing to a waiver request within 15 working days of receipt of all required documentation. In consultation with the program, the department may take an additional 15 working days to report its determination regarding the waiver request.  c.  The program will provide to the department within five working days written notification of any changes in the condition of the tenant as described in the approved waiver request.  67.7(3)    Factors for consideration for waiver of criteria for retention of a tenant.  In addition to the criteria established in Iowa Code section 17A.9A(2), the following factors may be demonstrative in determining whether the criteria for issuance of a waiver have been met:  a.  It is the informed choice of the tenant or the tenant’s legal representative, if applicable, to remain in the program;  b.  The program is able to provide the staff necessary to meet the tenant’s service needs in addition to the service needs of the other tenants;  c.  The waiver will not jeopardize the health, safety, security or welfare of the tenant, program staff, or other tenants;   d.  The tenant has been diagnosed with a terminal illness and has been admitted to hospice, and the tenant exceeds the criteria for retention and admission for a temporary period of less than six months. A terminal diagnosis means the tenant is within six months of the end of life.  67.7(4)    Conditional waiver.  A conditional waiver may be granted contingent upon the department’s receipt of additional information or performance of monitoring.  a.  If a waiver has been in effect for six months, a monitoring may be conducted to determine whether the tenant meets the criteria to continue on a waiver.  b.  The department may seek additional information during the period to determine if a waiver should be granted.  67.7(5)    Appeals.  The denial of a waiver request may be appealed by the program pursuant to Iowa Code chapter 17A.Related ARC(s): 0063D481—67.8(231B, 231C, 231D)  All other waiver requests.  Waiver requests relating to topics other than retention of a tenant in a program shall be filed in accordance with 481—Chapter 6.Related ARC(s): 0063D481—67.9(231B, 231C, 231D)  Staffing.    67.9(1)    Number of staff.  A sufficient number of trained staff shall be available at all times to fully meet tenants’ identified needs.  67.9(2)    Emergency procedures.  All program staff shall be able to implement the accident, fire safety, and emergency procedures.  67.9(3)    Documentation.  The program shall have training records and staffing schedules on file and maintain documentation of training received by program staff, including training of certified and noncertified staff on nurse-delegated procedures.  67.9(4)    Nurse delegation procedures.  The program’s registered nurse shall ensure certified and noncertified staff are competent to meet the individual needs of tenants. Nurse delegation shall include the following:  a.  The program’s newly hired nurse will within 60 days of beginning employment as the program’s registered nurse document a review to ensure that staff are sufficiently trained and competent in all tasks that are assigned or delegated.  b.  Within 30 days of beginning employment, all program staff will receive training by the program’s nurse(s).  c.  Training for noncertified staff will include the provision of activities of daily living and instrumental activities of daily living.  d.  Direct care staff will receive training regarding service plan tasks in accordance with medical or nursing directives and the acuity of the tenants’ health, cognitive or functional status.  e.  The program’s nurse(s) will provide direct or indirect supervision of all direct care staff as necessary in the professional judgment of the program’s nurse(s) and in accordance with the needs of the tenants and staff.  f.  Services will be provided to tenants in accordance with the training provided.  g.  The program will have in place a system by which direct care staff communicate in writing occurrences that differ from the tenant’s normal health and functional and cognitive status. The program’s nurse or designee will train staff on reporting to the program’s nurse(s) or designee(s) and documenting occurrences that differ from the tenant’s normal health and functional and cognitive status. The written communication required by this paragraph will be retained by the program for a period of not less than three years and be accessible to the department upon request.  h.  In the absence of the program’s nurse(s) due to vacation or other temporary circumstances, the nurse(s) assuming the duties of the program’s nurse(s) will have access to staff training in relation to tenant needs.  67.9(5)    Prohibited services.  A program staff member shall not be designated as attorney-in-fact, guardian, conservator, or representative payee for a tenant unless the program staff member is related to the tenant by blood, marriage, or adoption.  67.9(6)    Dependent adult abuse training.  Program staff shall receive training relating to the identification and reporting of dependent adult abuse as required by Iowa Code section 235B.16.Related ARC(s): 0063D481—67.10(17A, 231B, 231C, 231D)  Monitoring.    67.10(1)    Frequency of monitoring.  The department will monitor a certified program at least once during a 24-month period.  67.10(2)    Standard for determining whether a regulatory insufficiency exists.  The department will use a preponderance-of-the-evidence standard when determining whether a regulatory insufficiency exists. A preponderance-of-the-evidence standard does not require that the monitor shall have personally witnessed the alleged violation.Related ARC(s): 0063D481—67.11(231B, 231C, 231D)  Complaint and program-reported incident report investigation procedure.    67.11(1)    Complaints.  The process for filing a complaint is as follows:  a.  Any person with concerns regarding the operation or service delivery of a program may file a complaint with the Department of Inspections, Appeals, and Licensing, Complaints Unit, 6200 Park Avenue, Des Moines, Iowa 50321; by use of the complaint hotline, 1.877.686.0027; by facsimile sent to 515.281.7106; or through the website address: dial.iowa.gov.  b.  When the nature of the complaint is outside of the department’s authority, the department will forward the complaint or refer the complainant, if known, to the appropriate investigatory entity.  c.  The complainant will include as much of the following information as possible in the complaint: the complainant’s name, address and telephone number; the complainant’s relationship to the program or tenant; and the reason for the complaint. The complainant’s name shall be confidential information and shall not be released by the department. The department will act on anonymous complaints unless the department determines that the complaint is intended to harass the program. If the department, upon preliminary review, determines that the complaint is intended as harassment or is without reasonable basis, the department may dismiss the complaint.  67.11(2)    Program-reported incident reports.  When the program is required pursuant to applicable requirements to report an incident, the program will make the report to the department via:  a.  The web-based reporting tool accessible from the following website, dia-hfd.iowa.gov;  b.  Mail by sending the complaint to the Department of Inspections, Appeals, and Licensing, Complaints Unit, 6200 Park Avenue, Des Moines, Iowa 50321;  c.  The complaint hotline, 1.877.686.0027; or  d.  Facsimile sent to 515.281.7106.  67.11(3)    Time frames for investigation of complaints or program-reported incident reports.  Upon receipt of a complaint or program-reported incident report made in accordance with this rule, the department will conduct a preliminary review of the complaint or report to determine if a potential regulatory insufficiency has occurred. If a potential regulatory insufficiency exists, the department will institute a monitoring of the program within the following time frames: within 2 working days of receipt of the complaint or incident report if there is the possibility of immediate danger, including that the potential regulatory insufficiency has caused or is likely to cause serious injury, harm, impairment, or death to a resident; or within 20 working days of receipt of the complaint or incident report if the potential regulatory insufficiency has caused or may cause harm that negatively impacts a tenant’s mental, physical, or psychosocial status or function and is of such consequence to the tenant’s well-being that a rapid response is warranted; or within 45 working days of receipt of the complaint or incident report for any other complaint or incident investigation, including a potential regulatory insufficiency that may have caused harm of limited consequence and does not significantly impair the tenant’s mental, physical, or psychosocial status or function.  67.11(4)    Standard for determining whether a complaint is substantiated.  The department will apply a preponderance-of-the-evidence standard in determining whether or not a complaint or program-reported incident report is substantiated.  67.11(5)    Notification of program and complainant.  The department will notify the program and, if known, the complainant of the final report regarding the complaint investigation.  67.11(6)    Notification of accrediting entity.  For any credible report of alleged improper or inappropriate conduct or conditions within an accredited program, the department will notify the accrediting entity by the most expeditious means possible of any actions taken by the department with respect to certification enforcement.  67.11(7)    Notification of complainant when complaint not investigated.  The department will notify the complainant if the department does not investigate a complaint, including the reasons for not investigating the complaint.Related ARC(s): 0063D481—67.12(17A, 231B, 231C, 231D, 85GA, HF2365)  Exit interview, final report, plan of correction.    67.12(1)    Exit interview.  The department will provide an exit interview pursuant to Iowa Code sections 231B.8 and 231C.8.  67.12(2)    Final report.  The department will issue the final report pursuant to Iowa Code sections 231B.8(2) and 231C.8(2).  67.12(3)    Plan of correction.  Within ten working days following receipt of the final report, the program shall submit a plan of correction to the department, which shall include:  a.  Elements detailing how the program will correct each regulatory insufficiency, including at the system level;  b.  The date by which the regulatory insufficiency will be corrected not to exceed 30 days from receipt of the final report without approval of the department;  c.  What measures will be taken to ensure the problem does not recur;  d.  How the program plans to monitor performance to ensure compliance; and  e.  Any other required information.The department will review the plan of correction and may request additional information or suggest revisions to the plan.  67.12(4)    Monitoring revisit.  The department may conduct a monitoring revisit to ensure that the plan of correction has been implemented and the regulatory insufficiency has been corrected. Related ARC(s): 0063D481—67.13(17A, 231B, 231C, 231D, 85GA, HF2365)  Response to final report.  The program shall respond pursuant to Iowa Code sections 231B.9A, 231C.9A, and 231D.9A in the following manner.  67.13(1)    If not contesting.  If the program does not seek an informal conference or contest the final report and civil penalty, if assessed, the program shall remit to the department the amount of the civil penalty, if assessed. If a program has been assessed a civil penalty, the civil penalty will be reduced by 35 percent if the requirements of subrule 67.16(5) are met.  67.13(2)    Informal conference.    a.    Request for informal conference.  The request for an informal conference must be in writing and include the following:  (1)  Identification of the regulatory insufficiency(ies) being disputed;  (2)  The type of informal conference requested: virtual or telephone conference;   (3)  A request for monitor’s notes for the regulatory insufficiency(ies) being disputed, if desired.  b.    Submission of documentation.  The program will submit the following within ten working days from the date of the program’s written request for an informal conference:  (1)  The names of those who will be attending the informal conference, including legal counsel;   (2)  Documentation supporting the program’s position. The program will highlight or use some other means to identify written information pertinent to the disputed regulatory insufficiency(ies). Supporting documentation that is not submitted with the request for an informal conference will not be considered, except as otherwise permitted by the independent reviewer upon good cause shown. “Good cause” means substantial or adequate grounds for failing to submit documentation in a timely manner. In determining whether the program has shown good cause, the independent reviewer shall consider what circumstances kept the program from submitting the supporting documentation within the required time frame.  c.    Virtual or telephone conference.  A virtual or telephone conference, if requested, will be scheduled to occur within ten working days of the receipt of the written request, all supporting documentation and the plan of correction required by subrule 67.12(3).  (1)  Failure to submit supporting documentation will not delay scheduling.  (2)  The conference will be scheduled for one hour. The program will informally present information and explanation concerning the contested regulatory insufficiency(ies). The department will have time to respond to the program’s presentation. Due to the confidential nature of the conference, attendance may be limited.  (3)  If additional information is requested by the independent reviewer during the informal conference, the program will have two working days to deliver the additional materials to the independent reviewer.  (4)  When extenuating circumstances exist, the program may be given one opportunity to reschedule.  d.    Results.  The results of the informal conference will generally be sent within ten working days after the date of the informal conference or within ten working days after the receipt of additional information, if requested.  (1)  The department will issue an amended (changes in factual content) or corrected (changes in typographical/data errors) final report if changes result from the informal conference.  (2)  The program must submit to the department a new plan of correction for the amended or corrected report within ten calendar days from the date of the letter conveying the results of the conference.  (3)  If the informal conference results in dismissal of a regulatory insufficiency for which a civil penalty was assessed, the corresponding civil penalty will be rescinded.  67.13(3)    Procedure after informal conference.  After the conclusion of an informal conference:  a.  If the program does not desire to further contest an affirmed or modified final report, the program shall, within five working days after receipt of the written decision of the independent reviewer, remit to the department the civil penalty, if assessed.  b.  If the program does desire to further contest an affirmed or modified final report, the program shall, within five working days after receipt of the written decision of the independent reviewer, notify the department in writing that it desires to formally contest the final report.  67.13(4)    Contested case hearings.  Contested case hearings shall be conducted by the department’s administrative hearings division pursuant to Iowa Code chapter 17A and 481—Chapter 9.Related ARC(s): 0063D481—67.14(17A, 231B, 231C, 231D)  Denial, suspension or revocation of a certificate.    67.14(1)    Notice and request for hearing.  The denial, suspension or revocation of a certificate shall be effected by delivering to the applicant or certificate holder by restricted certified mail or by personal service a notice setting forth the particular reasons for such actions. A denial, suspension or revocation shall be effective 30 days after certified mailing or personal service of the notice, unless the applicant or certificate holder gives the department written notice requesting a hearing within the 30-day period. If a timely request for hearing is made, the notice shall be deemed suspended pending the outcome of the hearing unless subrule 67.14(3) or 67.14(4) applies. If an enforcement action has been implemented immediately in accordance with subrule 67.14(3) or 67.14(4), the enforcement action remains in effect regardless of a request for hearing.  67.14(2)    Hearings.  Hearings shall be conducted by the administrative hearings division of the department pursuant to Iowa Code chapter 17A and 481—Chapter 9.  67.14(3)    Immediate suspension of a certificate.  When the department finds that an imminent danger to the health or safety of tenants of a program exists that requires action on an emergency basis, the department may direct removal of all tenants from the program and suspend the certificate or require additional remedies to ensure the ongoing safety of the program’s tenants prior to a hearing.  67.14(4)    Immediate imposition of enforcement action.  When the department finds that an imminent danger to the health or safety of tenants exists that requires action on an emergency basis, the department may immediately impose a conditional certificate and accompanying conditions upon the program in lieu of immediate suspension of the certificate and removal of the tenants from the program if the department finds that tenants’ health and safety would still be protected. The program may request a hearing, but the immediate enforcement action remains in effect regardless of the request for hearing.Related ARC(s): 0063D481—67.15(17A, 231B, 231C, 231D)  Conditional certification.    67.15(1)    Conditional certification.  In lieu of denial, suspension or revocation of a certificate, the department may issue a conditional certificate for a period of up to one year. Notwithstanding subrule 67.14(4), a conditional certificate shall be issued only when regulatory insufficiencies pose no greater risk to tenant health or safety than the potential for causing minimal harm.  a.  The department will specify the reasons for the conditional certificate in the notice issuing the conditional certificate.  b.  The department may place conditions upon a certificate, such as requiring additional training; restriction of the program from accepting additional tenants for a period of time; or any other action or combination of actions deemed appropriate by the department.  c.  Failure by the program to adhere to the plan of correction or conditions placed on the certificate may result in suspension or revocation of the conditional certification and further enforcement action as available under applicable requirements.  d.  A program must be in substantial compliance with applicable requirements before the removal of a conditional certificate by the department. Prior to lifting a conditional certificate, the department may conduct a monitoring to verify substantial compliance.  67.15(2)    Appeal of conditional certificate.  A written request for hearing must be received by the department within 30 days after the mailing or service of notice. The conditional certificate will not be suspended pending the hearing. Hearings will be conducted by the administrative hearings division of the department pursuant to Iowa Code chapter 17A and 481—Chapter 9.Related ARC(s): 0063D481—67.16(17A, 231B, 231C, 231D)  Civil penalties.    67.16(1)    When civil penalties may be issued.  Civil penalties may be issued when the director finds that any of the following has occurred:  a.  A program that does not comply with applicable requirements and the noncompliance results in imminent danger or a substantial probability of resultant death or physical harm to a tenant may be assessed a civil penalty of not more than $10,000.  b.  A program that continues to fail or refuses to comply with applicable requirements within prescribed time frames established by the department or approved by the department in the program’s plan of correction and the noncompliance has a direct relationship to the health, safety, or security of tenants may be assessed a civil penalty of not more than $5,000.  c.  A program that prevents, interferes with or attempts to impede in any way any duly authorized representative of the department in the lawful enforcement of applicable requirements may be assessed a civil penalty of not more than $1,000.  d.  A program that discriminates or retaliates in any way against a tenant, tenant’s family, or an employee of the program who has initiated or participated in any proceeding authorized by Iowa Code chapter 231B, 231C or 231D and the corresponding administrative rules may be assessed a civil penalty of not more than $5,000.  67.16(2)    Duplicate civil penalties prohibited.  The department shall not impose duplicate civil penalties on a program for the same set of facts and circumstances.  67.16(3)    Factors in determining the amount of a civil penalty.  The department will consider the following factors when determining the amount of a civil penalty:  a.  The frequency and length of time the regulatory insufficiency occurred (i.e., whether the regulatory insufficiency was an isolated or a widespread occurrence, practice, or condition);  b.  The past history of the program as it relates to the nature of the regulatory insufficiency (the department will not consider more than the current certification period and the immediately previous certification period);  c.  The culpability of the program as it relates to the reasons the regulatory insufficiency occurred;  d.  The extent of any harm to the tenants or the effect on the health, safety, or security of the tenants that resulted from the regulatory insufficiency;  e.  The relationship of the regulatory insufficiency to any other types of regulatory insufficiencies that have occurred in the program;  f.  The actions of the program after the occurrence of the regulatory insufficiency, including when corrective measures, if any, were implemented and whether the program notified the director as required;  g.  The accuracy and extent of records kept by the program that relate to the regulatory insufficiency, and the availability of such records to the department;  h.  The rights of tenants to make informed decisions;  i.  Whether the program made a good-faith effort to address a high-risk tenant’s specific needs and whether the evidence substantiates this effort.  67.16(4)    Civil penalties due.  The civil penalty shall be paid to the department within 30 days following the program’s receipt of the final report and demand letter. The program may appeal in accordance with rule 481—67.13(17A,231B,231C,231D,85GA,HF2365). If the program appeals, the civil penalty will be deemed suspended until the appeal is resolved.  67.16(5)    Reduction of civil penalty.  If a program has been assessed a civil penalty, the civil penalty will be reduced by 35 percent if both of the following requirements are met:  a.  The program does not request a formal hearing pursuant to rule 481—67.13(17A,231B,231C,231D,85GA,HF2365) or withdraws its request for formal hearing within 30 calendar days of the date that the civil penalty was assessed; and   b.  The civil penalty is paid and payment is received by the department within 30 calendar days of receipt of the final report.Related ARC(s): 0063D481—67.17(17A, 231B, 231C, 231D)  Judicial review.  Judicial review shall be conducted pursuant to Iowa Code chapter 17A and 481—Chapter 9.Related ARC(s): 0063D481—67.18(135C, 231B, 231C, 231D)  Criminal, dependent adult abuse, and child abuse record checks.    67.18(1)    Definitions.  The following definitions apply for the purposes of this rule.
    "Background check" "record check" means criminal history, child abuse and dependent adult abuse record checks.
    "Comprehensive preliminary background check" means a criminal history check of all states in which the applicant has worked or resided over the seven-year period immediately prior to applying for employment that is conducted by an approved third-party vendor.
    "Direct services" means services provided through person-to-person contact. “Direct services” excludes services provided by individuals such as building contractors, repair workers, or others who are in a program for a very limited purpose, who are not in the program on a regular basis, and who do not provide any treatment or services for residents, patients, tenants, or participants of the provider.
    "Employed in a program" "employment within a program" means all of the following, if the provider is regulated by the state or receives any federal or state funding:
    1. An employee of an assisted living program certified under Iowa Code chapter 231C, if the employee provides direct services to consumers;
    2. An employee of an elder group home certified under Iowa Code chapter 231B, if the employee provides direct services to consumers;
    3. An employee of an adult day services program certified under Iowa Code chapter 231D, if the employee provides direct services to consumers.
    "Employee" means any individual who is paid, either by the program or any other entity (i.e., temporary agency, private duty, Medicare/Medicaid or independent contractors).
    "Evaluation" means review by the department of health and human services (HHS) to determine whether a founded child abuse, dependent adult abuse or criminal conviction warrants the person’s being prohibited from employment in a program.
    "Indirect services" means services provided without person-to-person contact such as those provided by administration, dietary, laundry, and maintenance.
    "Program," for purposes of this rule, means the following, if the provider is regulated by the state or receives any federal or state funding:
    1. An assisted living program certified under Iowa Code chapter 231C;
    2. An elder group home certified under Iowa Code chapter 231B;
    3. An adult day services program certified under Iowa Code chapter 231D.
      67.18(2)    Explanation of “crime.”  For purposes of this rule, the term “crime” does not include offenses under Iowa Code chapter 321 classified as simple misdemeanor or equivalent simple misdemeanor offenses from another jurisdiction.  67.18(3)    Requirements for employer prior to employing an individual.  Prior to employment of a person in a program, the program shall complete the background check requirements set forth below.  a.    Informing the prospective employee.  A program will ask each person seeking employment by the program, “Do you have a record of founded child or dependent adult abuse or have you ever been convicted of a crime other than a simple misdemeanor offense relating to motor vehicles and laws of the road under Iowa Code chapter 321 or equivalent provisions in this state or any other state?” The person will be informed that a background check will be conducted and sign an acknowledgment.  b.    Conducting a background check.  The program will either request that the department of public safety perform a criminal history check and that HHS perform child and dependent adult abuse record checks of the person in this state or access the single contact repository (SING) to perform the required background check. If SING is used, the program will submit the person’s maiden name, if applicable, with the background check request.  c.    If a person considered for employment has been convicted of a crime under the law of any state.  The program will request that HHS perform an evaluation to determine whether the crime warrants prohibition of the person’s employment in the program.  d.    If a person considered for employment has a record of founded child abuse or dependent adult abuse under the laws of any state.  The program will request that HHS perform an evaluation to determine whether the founded child or dependent adult abuse warrants prohibition of employment in the program.  e.    Employment pending evaluation.  The program may provisionally employ a person prior to completion of the required record check and evaluation by HHS, as applicable, subject to all of the following:  (1)  The program shall have accessed SING to perform the required record check and be awaiting results from SING or awaiting evaluation by HHS, as applicable;  (2)  If applicable, the program shall request an evaluation by HHS in accordance with paragraph 67.18(3)“c” or “d” within 30 days of receipt of SING record check results;  (3)  The program shall have utilized an approved third-party vendor to perform a comprehensive preliminary background check;  (4)  If the comprehensive preliminary background check determines that the person being considered for employment has been convicted of a crime, the crime does not constitute a felony as defined in Iowa Code section 701.7 and is not a crime specified pursuant to Iowa Code chapter 708, 708A, 709, 709A, 710, 710A, 711, or 712 or pursuant to Iowa Code section 726.3, 726.7, or 726.8;  (5)  The comprehensive preliminary background check shall have determined that the person being considered for employment does not have a record of founded child abuse or dependent adult abuse, or if the comprehensive preliminary background check determines the person being considered for employment does have a record of founded child abuse or dependent adult abuse, subrule 67.18(8) is applicable;  (6)  The provisional employment may continue until such time as the required record check through SING and evaluation by HHS, as applicable, are completed.  67.18(4)    Validity of background check results.  The results of a background check conducted pursuant to this rule shall be valid for a period of 30 calendar days from the date the results of the background check are received by the program.  67.18(5)    Employment prohibition.  Except as provided in paragraph 67.18(3)“e,” a person who has committed a crime or has a record of founded child or dependent adult abuse shall not be employed in a program unless an evaluation has been performed by HHS.  67.18(6)    Transfer of an employee to another program owned or operated by the same person without a lapse in employment.  The program is not required to request additional criminal and child and dependent adult abuse record checks of that employee.  67.18(7)    Transfer of ownership of a program.  At the time of transfer of ownership of a program,  the background check required by this rule will be performed for each employee for whom there is no documentation that such background check has been performed. The program may continue to employ such employee pending the performance of the background check and any related evaluation.  67.18(8)    Change of employment—person with criminal or abuse record—exception to record check evaluation requirements.  A person with a criminal or abuse record who is or was employed by a certified program and is hired by another certified program shall be subject to the background check.  a.  A reevaluation of the latest record check is not required, and the person may commence employment with the other certified program if the following requirements are met:  (1)  HHS previously performed an evaluation concerning the person’s criminal or abuse record and concluded the record did not warrant prohibition of the person’s employment;  (2)  The latest background check does not indicate a crime was committed or founded abuse record was entered subsequent to the prior evaluation;  (3)  The position with the subsequent employer is substantially the same or has the same job responsibilities as the position for which the previous evaluation was performed;  (4)  Any restrictions placed on the person’s employment in the previous evaluation by HHS and still applicable remain applicable in the person’s subsequent employment;  (5)  The person subject to the background check has maintained a copy of the previous evaluation and provided it to the subsequent employer, or the previous employer provides the previous evaluation from the person’s personnel file pursuant to the person’s authorization. If a physical copy of the previous evaluation is not provided to the subsequent employer, a current record check evaluation will be performed.  b.  For purposes of this subrule, a position is “substantially the same or has the same job responsibilities” if the position requires the same certification, licensure, or advanced training. For example, a licensed nurse has substantially the same or the same job responsibilities as a director of nursing; a certified nurse aide does not have substantially the same or the same job responsibilities as a licensed nurse.  c.  The subsequent employer must maintain the previous evaluation in the employee’s personnel file for verification of the exception to the requirement for a record check evaluation.  d.  The subsequent employer may request a reevaluation of the background check and may employ the person while the reevaluation is being performed, even though an exemption under paragraph 67.18(8)“a” may be authorized.  67.18(9)    Employee notification of criminal convictions or founded abuse after employment.  If a person employed by an employer that is subject to this rule is convicted of a crime or has a record of founded child or dependent adult abuse entered in the abuse registry after the person’s employment application date, the person shall inform the employer of such information within 48 hours of the criminal conviction or entry of the record of founded child or dependent adult abuse.  a.  The employer shall act to verify the information within seven calendar days of notification. “Verify,” for purposes of this subrule, means to access SING to perform a background check, to request a criminal background check from the department of public safety, to request an abuse record check from HHS, to conduct an online search through the Iowa Courts Online website, or to contact the county clerk of court office and obtain a copy of relevant court documents.  b.  If the information is verified, the program shall follow the requirements of paragraphs 67.18(3)“c” and “d.”  c.  The employer may continue to employ the person pending the performance of an evaluation by HHS.  d.  A person who is required by this subrule to inform the person’s employer of a conviction or entry of an abuse record and fails to do so within the required period commits a serious misdemeanor under Iowa Code section 135C.33.  e.  The employer may notify the county attorney for the county where the employer is located of any violation or failure by an employee to notify the employer of a criminal conviction or entry of an abuse record within the period required under this subrule.  67.18(10)    Program receipt of credible information that an employee has been convicted of a crime or founded for abuse.  If the program receives credible information, as determined by the program, from someone other than the employee, that the employee has been convicted of a crime or a record of founded child or dependent adult abuse has been entered in the abuse registry after employment, and the employee has not informed the employer of the information within the time required by subrule 67.18(9), the program shall take the following actions:  a.  The program will act to verify credible information within seven calendar days of receipt. “Verify,” for purposes of this subrule, means to access SING to perform a background check, to request a criminal background check from the department of public safety, to request an abuse record check from HHS, to conduct an online search through the Iowa Courts Online website, or to contact the county clerk of court office and obtain a copy of relevant court documents.  b.  If the information is verified, the program shall follow the requirements of paragraphs 67.18(3)“c” and “d.”  67.18(11)    Proof of background checks for temporary employment agencies and contractors.  Proof of background checks may be kept in the files maintained by temporary employment agencies and contractors. Facilities may require temporary employment agencies and contractors to provide a copy of the result of the background checks. Copies of such results shall be made available to the department upon request.    Related ARC(s): 0063D481—67.19(17A, 231C, 231D)  Emergency removal of tenants.  If the department determines that the health or safety of tenants is in jeopardy and the tenants need to be removed from the program, the department will use the following procedures to ensure a safe and orderly transfer.  67.19(1)  The department will notify HHS, the tenant advocate, the appropriate area agency on aging, and other agencies as necessary and appropriate:  a.  To alert them to the need to transfer tenants from a program;  b.  To request assistance in identifying alternative programs or other appropriate settings;   c.  To contact the tenants and their legal representatives or family members, if applicable, and others as appropriate, including health care professionals.  67.19(2)  The department will notify the program of the immediate need to transfer tenants and of any assistance available, in coordination with the appropriate parties under subrule 67.19(1).Related ARC(s): 0063D481—67.20(231C)  Nursing assistant work credit.    67.20(1)  A program may add an employee to the direct care worker registry by calling 515.281.4077 or by registering through the website at dia-hfd.iowa.gov.  67.20(2)  A program shall complete and submit to the department a direct care worker registry application for each certified nursing assistant who works in the program. A registered nurse employed by the program shall supervise the nursing assistant. The application may be obtained by telephone at 515.281.4077 or via the website at dia-hfd.iowa.gov.  67.20(3)  A program shall complete and submit to the department a direct care worker registry quarterly employment report whenever a change in the employment of a certified nursing assistant occurs. The report form may be obtained by telephone at 515.281.4077 or via the website at dia-hfd.iowa.gov.Related ARC(s): 0063D481—67.21(231B, 231C, 231D)  Public or confidential information.    67.21(1)    Public information.    a.    Public disclosure of findings.  The program shall provide copies of the final report resulting from a monitoring in a prominent public place. Copies are available upon request from the Department of Inspections, Appeals, and Licensing, Adult Services Bureau, 6200 Park Avenue, Des Moines, Iowa 50323; by telephone at 515.281.6325; or via the website at dia-hfd.iowa.gov.  b.    Open records.  The following records are open records available for inspection:  (1)  Certification applications, certification status, and accompanying materials;  (2)  Final findings of state monitorings, including a monitoring that results from a complaint or program-reported incident;  (3)  Reports from the fire safety bureau;  (4)  Plans of correction submitted by a program;  (5)  Official notices of certification sanctions, including enforcement actions;  (6)  Findings of fact, conclusions of law, decisions and orders issued pursuant to rules 481—67.10(17A,231B,231C,231D) and 481—67.12(17A,231B,231C,231D,85GA,HF2365);  (7)  Waivers, including the department’s approval and denial letter and any letter requesting the waiver.  67.21(2)    Confidential information.  Confidential information includes the following:  a.  Information that does not comprise a final report resulting from a monitoring, complaint investigation, or program-reported incident investigation. Information that does not comprise a final report may be made public in a legal proceeding concerning a denial, suspension or revocation of certification;  b.  Names of all complainants;  c.  Names of tenants of a program, identifying medical information, copies of documentation appointing a legal representative, and the address of anyone other than an owner or operator;  d.  Social security numbers or employer identification numbers (EIN).  67.21(3)    Redaction of confidential information.  If a record normally open for inspection contains confidential information, the confidential information shall be redacted before the records are provided for inspection.Related ARC(s): 0063DThese rules are intended to implement Iowa Code chapters 231B, 231C, and 231D.    Related ARC(s): 8174B, 0961C, 0963C, 1050C, 1055C, 1547C, 1701C, 1994C, 2142C, 2463C, 3523C, 4976C, 5421C, 0063D