§ 44–504. Rules.
*NOTE: This section includes amendments by temporary legislation that will expire on February 4, 2022. To view the text of this section after the expiration of all emergency and temporary legislation, click this link: Permanent Version.*
*NOTE: This section includes amendments by emergency legislation that will expire on October 22, 2021. To view the text of this section after the expiration of all emergency and temporary legislation, click this link: Permanent Version.*
(a) The Mayor shall issue rules, consistent with other provisions of this chapter and pursuant to subchapter I of Chapter 5 of Title 2, establishing:
(1) License fees for private facilities and agencies reasonably calculated to reflect a facility’s or agency’s respective share of the cost of administering the provisions of this subchapter and rules adopted pursuant to this subchapter;
(2) Procedures deemed necessary to effectuate the purposes of this subchapter, including, but not limited to, procedures for:
(A) Issuing and renewing licenses;
(B) Obtaining variances;
(C) Ensuring that 6 months after the adoption of applicable rules under this subsection, licensure of all affected facilities and agencies shall be under the new rules;
(D) Waiving the inspection requirements of § 44-505(a) and (b) for those agencies that deliver services within the District of Columbia but are headquartered and licensed outside the District of Columbia, when, in the opinion of the Mayor, licensure by another jurisdiction constitutes sufficient evidence that the agency is in substantial compliance with District of Columbia law;
(E) Processing and following up on complaints by facility and agency staff, consumers, and advocates that are filed with the governmental licensing authority;
(F) Suspending or revoking the license of a facility or agency that is in violation of any provision of this subchapter, rule adopted pursuant to this subchapter, or other provision of District of Columbia or federal law, or whose governing body, chief executive officer, administrator, or director has made a material misrepresentation of fact to a government official with respect to the facility’s or agency’s compliance with any provision of this subchapter, rule adopted pursuant to this chapter, or other provision of District of Columbia or federal law; and
(G) Appealing from adverse licensure decisions;
(3) Standards for the construction and operation of each type of facility and agency, including standards governing: safety and sanitation of facilities; organizational governance and administration; employee and volunteer training, staff membership and delineation of clinical privileges (in addition to the standards set forth in § 44-507), and other personnel matters; diagnostic, therapeutic, emergency, anesthesia, laboratory, pharmaceutical, dietary, nursing, rehabilitation, social, emergency and non-emergency transportation, and other services; infection control; patient/client/resident care and quality assurance; recordkeeping; utilization review; and internal complaint and appeal procedures; and
(4) A statement of patients’, clients’, and residents’ rights and responsibilities for each type of facility and agency, including the right to non-discrimination in treatment or access to services based on reasons prohibited by Unit A of Chapter 14 of Title 2.
(c) In formulating the standards and statements of rights and responsibilities required by subsection (a)(3) and (4) of this section, the Mayor shall, within 30 days after February 24, 1984, appoint an advisory task force for each type of facility and agency except ambulatory surgical facilities and renal dialysis facilities. Each task force shall be composed of consumers, providers, advocates, and government agency representatives, and shall be charged with the responsibility of making formal written recommendations within a time frame established by the Mayor. The Mayor shall give substantial consideration to each task force’s recommendations and shall, on a continuing basis before adoption of proposed rules, maintain a dialogue with each task force while reviewing and acting on its recommendations.
(d) Where appropriate, standards adopted under subsection (a)(3) of this section may incorporate, in whole or in part, the standards of private accrediting bodies and standard-setting organizations, as well as the federal conditions of participation and standards for health-insurance and medical-assistance programs. Whenever the standards of a private accrediting body or standard-setting organization are revised and a copy is submitted to the Mayor, the Mayor shall evaluate the revised standards and determine whether any or all of them should be incorporated into new rules.
(e) Community residence facilities shall distribute a copy of the statement required by subsection (a)(4) of this section to each resident’s parents, guardian, or other responsible person acting on his or her behalf. All other facilities shall conspicuously post copies of this statement near the main entrance and on every floor. Agencies shall distribute a copy of this statement to each patient/client upon the initial delivery of services. Each copy shall specifically state, in boldface, the address and telephone number of the appropriate in-house or intra-agency personnel and governmental authority to which complaints should be addressed.
(e-1) For nursing facility residents, the statement required by subsection (a)(4) of this section shall include, at a minimum, the right to:
(1) Be fully informed by the nursing facility of all resident rights and all facility rules governing resident conduct and responsibilities upon admission and annually thereafter;
(2) Either manage one’s own personal finances, or be given a quarterly report of the resident’s finances if this responsibility has been delegated in writing to the nursing facility;
(3) Be treated with respect and dignity and assured privacy during treatment and when receiving personal care;
(4) Not be required to perform services for the nursing facility that are not for therapeutic purposes, as identified in the plan of care for the resident;
(5) Associate and communicate privately with persons of the resident’s choice, unless medically contraindicated;
(6) Send and receive personal mail, unopened by personnel at the nursing facility;
(7) Participate in activities of social, religious, and community groups at the discretion of the resident, unless medically contraindicated;
(8) Keep and use personal clothing and possessions, as space permits, unless to do so would infringe on other residents’ rights or is medically contraindicated;
(9) Maintain, at the nursing facility, a private locker, chest, or chest drawer that is large enough to accommodate jewelry and small personal property and that can be locked by the resident;
(10) Be provided with privacy for visits by the resident’s spouse or domestic partner, or, if spouses or domestic partners are both residents in the nursing facility, be permitted to share a room;
(11) Be free from mental or physical abuse;
(12) Be free from chemical and physical restraints except as authorized pursuant to federal or District law and regulation;
(13) Be transferred or discharged only for the grounds set forth in § 44-1003.01; and
(14) Be discharged from the nursing facility after:
(A) Receiving a consultation from a physician of the medical consequences of discharge; and
(B) Providing the administrator, physician, or a nurse of the nursing facility written notice of the desire to be discharged; provided, that if the resident is a minor or a guardian has been appointed for a resident, the written request for discharge shall be signed by the resident’s guardian, unless there is a court order to the contrary.
(f) In setting standards under subsection (a)(3) of this section, the Mayor shall require that hospice and home care agency programs be centrally administered and organized to ensure effective coordination of all patient/client care services.
(g) Nothing in this section shall be construed to prohibit a facility or agency from supplementing the standards adopted under subsection (a)(3) of this section by establishing internal standards, policies, and procedures that promote safety and quality care, so long as they are reasonable and not inconsistent with this subchapter, rules adopted pursuant to this subchapter, or other District of Columbia law.
(h) For ambulatory surgical facilities, the rules required by subsection (a) of this section shall include a list of those outpatient surgical procedures that, if not performed in a hospital or, when appropriate, a maternity center, may be performed only in a facility licensed as an ambulatory surgical facility. In formulating this list of procedures before its publication as a proposed rule, the Mayor shall solicit input from a broad range of health professionals, relevant institutional providers, and other members of the public who are knowledgeable about ambulatory surgery or ambulatory surgical facilities. This list shall be periodically reviewed and updated by rulemaking pursuant to subchapter I of Chapter 5 of Title 2.
(h-1)(1) As part of the standards for nursing facilities required by subsection (a)(3) of this section, the Mayor shall require nursing facilities to:
(A) Maintain an organizational and staffing structure that promotes assignment of the same caregivers to care for the same residents as often as practicable;
(B) Except as provided in paragraph (2) of this subsection:
(i) Beginning January 1, 2011, have either a physician, physician assistant, or an advanced practice registered nurse, excluding the medical director, available on-site for a minimum of 0.2 hours per week for each resident at the facility;
(ii) Beginning January 1, 2012, provide a minimum daily average of 4.1 hours of direct nursing care per resident per day, of which at least 0.6 hours shall be provided by an advanced practice registered nurse or registered nurse, which shall be in addition to any coverage required by sub-subparagraph (i) of this subparagraph; and
(C) Provide annual training to all nursing home employees on the appropriate use of emergency transport and 911 services;
(D) Make each resident’s attending physician’s contact information readily available to facility staff as well as to each resident and his or her family or legal representative upon request;
(E) Provide employee training that addresses the special health care needs of the elderly and that addresses the needs of specific populations, including those characterized by:
(iii) Religious affiliation;
(iv) Sexual orientation;
(v) Gender; and
(vi) Gender identity;
(F) Ensure that appropriate health care services are available on-site, as determined by the Department of Health, for the purpose of reducing the need to transport residents off-site for routine health services, including:
(ii) Rehabilitative services, such as physical therapy and occupational therapy;
(iii) Wound care;
(iv) Mental health;
(v) Dialysis; and
(vi) Substance-abuse treatment;
(G) Develop and maintain written policies and procedures governing the management and operation of the facility, which shall be required by the Department of Health as a component of licensure, reviewed by the Department of Health, and made available upon request, including policies and procedures governing:
(i) Nursing services;
(ii) Physician services;
(iii) Emergency care;
(iv) Dental services;
(v) Ventilator services;
(vi) Use of physical and chemical restraints;
(vii) Infection control;
(viii) Medication management;
(ix) Podiatry services;
(x) Dialysis services;
(xi) Recreational services;
(xii) Emergency water supply;
(xiii) Laundry and linen management;
(xiv) Fire and disaster preparedness; and
(xv) Resident emergency and non-emergency transportation.
(H) Based on a resident’s right to participate in resident and family groups (Requirements For Long Term Care Facilities, 42 C.F.R. § 483.15(c)), make available to any resident or family group:
(i) Promotional and advertising assistance so that residents and residents’ family members are aware of their right to convene groups;
(ii) Adequate meeting space and logistical assistance;
(iii) Information regarding policies and procedures for nursing home care, resident rights and responsibilities, and laws and rules that apply to the facility and its residents;
(iv) Staff for the operation of each meeting, upon request; and
(v) Written feedback and responses to recommendations and grievances;
(I) Ensure that a resident is seen by a physician within 72 hours of admission and has recorded in his or her medical record:
(i) An evaluation of the resident’s primary diagnoses;
(ii) The resident’s:
(III) Mental health status; and
(IV) Personal care needs;
(iii) Whether it is medically contraindicated for the resident to participate in:
(II) Recreational; or
(III) Rehabilitative activities; and
(iv) An evaluation of any existing:
(I) Medical care plan;
(II) Treatment orders; and
(J) Obtain a medical order from the resident’s attending physician, the facility’s medical director, an on-staff physician, or advanced practice registered nurse if a resident requires medical treatment prior to calling 911; provided, that a prior medical order shall not be required if it is determined that there is a situation that requires an immediate transfer to a hospital; provided further, that if a nursing facility does not obtain a required medical order prior to calling 911, the facility shall document in the resident’s medical record why obtaining a medical order was not practicable; and
(K) Conduct a discharge assessment within 14 days of admission, and biannually thereafter, that includes:
(i) A time frame for discharging the resident to return home or to another facility; and
(ii) If the resident is likely to be discharged within 6 months of the discharge assessment, a discharge plan.
(2) The Department of Health shall have the authority to adjust the staffing requirements and formulas set forth in paragraph (1)(B)(i) and (ii) of this subsection based on the individual needs of a nursing facility; provided, that the staffing requirements set forth in paragraph (1)(B)(ii) of this subsection shall never be less than 3.5 hours of direct nursing care per resident per day.
(i)(1) As part of the standards for hospitals and renal dialysis facilities required by subsection (a)(3) of this section, the Mayor shall establish standards and procedures with respect to:
(A) The labeling, handling, transporting, storage, routine inspection, and preventive maintenance of dialysis equipment;
(B) The reprocessing and reuse of hemodialyzers, dialysate port caps, and blood port caps;
(C) Water purification and quality;
(D) The flushing of residues from potentially toxic sterilants and disinfectants used during manufacture or reprocessing;
(E) The facility’s responsibility to ensure individualized treatment, including the most appropriate choice of equipment for each patient and, for patients exhibiting hypersensitivity, the use of biocompatible membranes;
(F) The reporting of equipment failures and occurrences of pyrexia, sepsis, or bacteremia;
(G) The training, minimum qualifications, and supervision of dialysis staff; and
(H) The training and support provided to self-dialysis and home dialysis patients.
(2) The standards and procedures required by paragraph (1) of this subsection shall not be less stringent than the guidelines set forth in the July 28, 1986, Recommended Practice for Reuse of Hemodialyzers published by the Association for the Advancement of Medical Instrumentation (“AAMI Recommended Practice”) and the recommendations of the Centers for Disease Control referenced in those guidelines (“CDC Recommendations”).
(3) Until the standards and procedures required by paragraph (1) of this subsection become enforceable through licensure, hospitals and renal dialysis facilities shall comply with the AAMI Recommended Practice, except that, where there are CDC Recommendations, hospitals and renal dialysis facilities shall comply with the CDC Recommendations.
(4) No hospital or renal dialysis facility shall reuse blood tubing or transducer protectors.
(5) No hospital or renal dialysis facility shall reuse a hemodialyzer or dialyzer caps on a patient unless that patient has first signed a written consent form after having been orally advised by a physician of the potential risks, benefits, and uncertainties surrounding reuse and the disinfection process. The advising physician shall not be a medical director of the facility or dialysis unit, nor shall he or she have a financial interest in the facility. The information conveyed shall consist of a full and fair presentation of representative opinions from those in the medical community who have expressed concerns about reuse practices, and those who support these practices. Any discussion of “first-use syndrome” shall include information about advances in biocompatible-membrane technology.
(6) Dialysis patients shall have the following nonwaivable rights, to be supplemented by the statement of rights and responsibilities established by the Mayor pursuant to subsection (a)(4) of this section:
(A) To revoke or limit, either orally or in writing, a previously executed reuse consent at any time and for any reason;
(B) To be informed before each dialysis treatment of the number of times the dialyzer and dialyzer caps have been previously used;
(C) To have documented in their patient-care records all consents to reuse, refusals to consent, revocations of consent, and limitations placed upon consent;
(D) To have unrestricted access to their patient-care records;
(E) To make the reuse-content decision in an environment devoid of threats, intimidation, or retaliation by the facility or its staff; and
(F) Except as provided by paragraph (7) of this subsection, to remain at a facility and receive treatments with a new, state-of-the-art dialyzer and new dialyzer caps whenever consent to reuse is refused or revoked or reuse is prohibited by limitations placed upon consent.
(7) A hospital or renal dialysis facility may transfer or decline to admit a patient on account of that patient’s refusal to consent to the reuse of hemodialyzers or dialyzer caps only if:
(A) The Mayor certifies that the facility is currently in full compliance with this subsection and all other District of Columbia laws that regulate, either directly or indirectly, the reprocessing and reuse of hemodialyzers and dialyzer caps;
(B) The facility, in cooperation with a patient-care ombudsman designated by the Mayor, identifies and secures a permanent placement for the patient in an alternative facility within the District of Columbia where that patient will be provided the option of receiving each treatment with a new, state-of-the-art dialyzer and new dialyzer caps; and
(C) The patient-care ombudsman designated by the Mayor finds that the patient can obtain equally reliable transportation to and from the alternative facility without suffering extreme physical, psychological, or financial hardship.
(8) Paragraphs (3) through (7) of this subsection shall be applicable and enforceable with respect to all hospitals and renal dialysis facilities, whether licensed or temporarily exempt from licensure under § 44-502(c), immediately on February 28, 1987.
(j) The proposed rules, except those rules that establish or modify license fees as described in subsection (a) of this section, shall be submitted to the Council for a 45-day period of review, excluding Saturdays, Sundays, legal holidays, and days of Council recess. If the Council does not approve or disapprove the proposed rules, in whole or in part, by resolution within this 45-day review period, the proposed rules shall be deemed approved. Nothing in this section shall affect any requirements imposed upon the Mayor by subchapter I of Chapter 5 of Title 2.
(k) Any license issued pursuant to this section shall be issued as a Public Health: Health Care Facility endorsement or a Public Health: Human Services Facility endorsement to a basic business license under the basic business license system as set forth in subchapter I-A of Chapter 28 of Title 47.