Kentucky Rewrites Its Assisted Living Law
|Footnotes for this article are available at the end of this page.|
In keeping with several states that have recently overhauled their assisted living laws, the Commonwealth of Kentucky has enacted sweeping changes to its regulatory framework for assisted living. Kentucky Senate Bill 11 (“SB 11”) became law on March 18, 2022; however, an effective date for the changes is pending completion and approval of corresponding revisions to applicable regulations.
SB 11 makes several important changes that affect the licensing and operation of assisted living communities (ALCs) in Kentucky. Among these changes are:
Regulatory Framework for Licensing
- Realignment of Regulatory Classification: SB 11 includes a realignment of the regulatory classification of ALCs. While the principal ALC provisions remain in Chapter 194A of Title XVII of the Kentucky Revised Statutes (KRS), pertaining to Security and Public Welfare, SB 11 revises KRS § 216.510 to include ALCs within the definition of “long-term care facilities” for purposes of selected requirements under Chapters 216 (Health Facilities and Services) and 216B (Licensure and Regulation of Health Facilities and Services) of KRS Title XVIII, pertaining to Public Health. The realignment is both logical and curious. While ALCs are a form of long-term care facilities and thus are more appropriately classified and licensed as such, SB 11 leaves the primary licensing and regulatory requirements applicable to ALCs in Chapter 194A and makes several revisions to Chapters 216 and 216B that except out ALCs. As a result, ALCs must become well acquainted with the applicability and exceptions to applicability of all three chapters. Notable changes include:
- Hearings: Hearings upon appeals will now be governed by KRS Chapter 216B.1
- Licensure Reviews: While both Chapters 194A and 216 specify inspection intervals, SB 11 makes clear that the inspection intervals of Section 194A.707 control. There is a 24-month licensure review interval for ALCs not found during their previous licensure review to have violated an administrative regulation set forth by the Cabinet for Health and Family Services (the “Cabinet”) that presented imminent danger to a resident that created substantial risk of death or serious mental or physical harm. Otherwise, ALCs are subject to a 12-month licensure review interval.
- Resident Rights: Section 26 of SB 11 amends 216.515(26), which affords residents of long-term care facilities a cause of action for infringement or deprivation of their rights, to specify that the section applies to long-term care facilities licensed under Chapter 216B. Because the primary licensing authority of ALCs is found in Chapter 194A, the cause of action presumably does not apply to ALCs.
- Effect of License Revocation: Under 194A.707(4)(b), as revised by SB 11, a revocation of licensure may be grounds for the Cabinet to refuse reissue of an ALC license for seven yearsif ownership remains substantially the same.2
- Licensing: The law shifts from certification of ALCs to licensing; however, this seems to be a distinction without a difference. The most significant change effected by SB 11 is the establishment of two licensure categories — one for ALCs without a secured dementia care unit and one for ALCs that provide assisted living services and also dementia care services in a secured dementia care unit. By definition, an ALC that is “advertised, marketed or otherwise promoted” as providing specialized care for residents with Alzheimer’s and other forms of dementia, as well as an ALC with a secure dementia care unit, must be licensed as an assisted living with dementia care facility. On or after the effective date of SB 11, no ALC may operate a secured dementia care unit without having first obtained an assisted living with dementia care license.
Inspection Violations and Enforcement
- In another instance in which clarification regarding the applicability of KRS Chapter 194A versus KRS Chapter 216 is necessary, Section 24 of SB 11 provides that the following violations are to be cited and referred to as citations or deficiencies and are not to be categorized as Type A or Type B violations under KRS 216.557:
- Violations of administrative regulations, standards, and requirements under Chapter 194A
- Applicable provisions of the following sections of KRS Chapter 216:
- 515 – 216.525 (resident rights)
- 537 – 216.555 (visiting hours, interference with Ombudsman, posting/provision of copy to resident requirements, disclosure regarding sprinkler systems, public availability of inspection reports, citations)
- 567 (appeals)
- 590 (surveyor training)
- Self-reported events are not deemed a complaint.
- Any violations must present a direct or immediate relationship to the health, safety, or security of any resident and must specify the time required for correction. No civil monetary penalty (“CMP”) is to be imposed if the violation is corrected within the time specified.
- Any CMP may not exceed $500 for each distinct violation and shall not be assessed unless imminent danger to a resident is present that creates substantial risk of death or serious mental or physical harm.
- An ALC shall have the amount of any CMP reduced by the amount that the ALC can verify was used to correct the deficiency if the condition giving rise to the deficiency existed for less than 30 days prior to the date of the citation.
- The Cabinet may institute injunctive proceedings to enforce KRS Chapter 194A only in the event of the failure of the licensee to abide by any final order of the Cabinet once it has become effective and binding.
- There are specific services that must be provided in ALCs with a dementia care license, such as dining flexibility and other person-centered practices, basic health and health-related services, and support services for families and others.
- Upon move-in to an assisted living with dementia care-licensed setting, residents and their representatives must be provided with a number of policies and procedures, including philosophy of how services are provided based on the licensee’s values, mission, and promotion of person-centered care, evaluation of behavioral symptoms and design of supports for intervention plans, exit-seeking and egress prevention, and others.
- For facilities that hold an assisted living with dementia care license, there must be one awake staff member on-site at each licensed entity at all times (i.e., in the assisted living facility and in the secured dementia care unit).
- The ALC must have a policy that describes how priority will be given by staff to assist residents that require hands-on assistance to walk, transfer, or move from place to place with or without an assistive device in the event of an emergency when evacuation may be necessary.
- Only staff that has received specific training shall be assigned to care for dementia residents.
- There are extensive and very specific requirements with respect to orientation, continuing education, and training, both for assisted living and assisted living with dementia care staff.
In summation, SB 11 represents an effort to establish a statutory framework for the provision of specialized care for assisted living residents with dementia and to ensure that staff is properly trained to provide such care. To understand the full implications of SB 11, however, providers will need to familiarize themselves with KRS Chapters 216 and 216B, as well as forthcoming regulations from the Cabinet in response to SB 11.
The Arnall Golden Gregory Change of Ownership (CHOW) team leads all regulatory aspects of healthcare transactions for investors, operators, managers, capital partners, and developers of every size in all 50 states. The team streamlines the regulatory process so that clients close their transactions on or ahead of schedule. Whether obtaining licensure and Medicare/Medicaid approvals, structuring transactions to expedite closings, anticipating issues to minimize cash flow disruption, negotiating regulatory terms in deal documents, creatively resolving diligence issues, or advising on CHOW guidelines and compliance, the team provides extensive experience and practical solutions. To date, the CHOW team has served as primary regulatory counsel in transactions valued at more than $25 billion.
 Previously they were governed under KRS Chapter 13B pertaining to general administrative hearings within the Executive Branch of the government.
 Versus one year under the existing ALC law.
- Jennifer L. Hilliard