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New Memory Care Legislation will take effect in Arizona on July 1, 2025. – Survey Open Now

Category: Healthcare and Assisted Living

New Memory Care legislation will take effect in Arizona on July 1, 2025.  The AZ Department of Health Services (“ADHS”) issued a proposed set of rules in December, and revised them in early January, a copy of which can be found at: https://www.azdhs.gov/documents/policy-intergovernmental-affairs/administrative-counsel-rules/rules/rulemaking/hci-and-memory-care/memory-care-draft-jan.pdf

Although ADHS was exempted by the legislature from regular rulemaking requirements regarding implementation of HB 2764 that was signed into law last year, the agency is nevertheless seeking input into the rule amendments. It has posted a survey, which will be open through January 19, 2025: https://www.surveymonkey.com/r/WNT8B68

The three main components of the proposed new rules are:

  • Establishment of a process to approve and certify memory care training program providers and ensure that they are providing education in topic areas such as: understanding cognitive impairments and their impact on residents; communication techniques with cognitively impaired residents; managing behaviors such as aggression, wandering and agitation, and other topics listed in the rule amendment. Trainers for such programs must have certain listed educational and work experience, and the January version adds that the eight-hour training must be done in person. Managers of memory-care licensed facilities must have an additional 4 hours of training specific to memory care services.
  • Establishment of a new “memory care” category of assisted living licensing, with certain requirements pertaining to facilities authorized by ADHS to provide memory care services, along with some explanation of what memory care entails. ALL staff in memory care facilities must receive the certificate of completion of the training program conducted by an ADHS-approved training program. Other requirements include additional intake paperwork and bi-annual certification by a medical practitioner that the resident’s stay in the approved memory care facility is appropriate. Environmental factors are addressed as well, including signage and visual clues, and methods to prevent elopement.
  • Maximum civil penalties are increased to meet the allowance authorized by last year’s legislation of up to $1,000 per resident impacted, per day the violation (or deficiency) occurs. An “enforcement matrix” was also developed, which now has 4 levels of potential consequences based upon factors that ADHS subjectively determines are found. The most severe level now uses the term “immediate jeopardy,” which is an entirely new concept in Arizona assisted living regulations.  Immediate jeopardy is a phrase more commonly used by CMS regarding skilled nursing facility inspections. There was no definition of this term added in the December publication of the proposed amendments, but the Department has included a definition in its January proposal.  The concept of civil penalties being multiplied by the facility’s census (and retention of the former statutory allowance to assess a per-diem penalty) can have severe financial consequences on providers across the spectrum from small 5-bed licensees to large assisted living centers. There is, however, another provision that states that ADHS may consider certain factors to mitigate the damages (which the proposed rules essentially set at the amount of $1,000 if there’s no mitigation).  Mitigating factors can include, but are not limited to: the size of the facility and financial impact of the penalty, if the violation was isolated, and if no actual harm occurred.

 

Additionally, ADHS will be able to impose a potential $1,000 per visit monitoring fee if the Department believes monitoring is necessary due to repeat deficiencies, or threat of harm to residents. That fee cannot be assessed for compliance or complaint inspections.

In my practice, I represent both large assisted living centers, and residential assisted living homes with 10 beds or less.  Both are considered health care institutions, which will be subject to these new rule amendments. Many families chose the smaller residences for their loved ones with dementia because they are a more home-like environment and typically with a better caregiver to resident ratio, among other reasons. On the other hand, those with wandering or elopement propensities, or other dementia-related behaviors may be better served in a lock-down type of memory care unit. The number of licensed homes in the state far exceeds the number of licensed centers (roughly 1,711 homes vs. 330 centers). There is no clear proposed rule whether assisted living homes will need to request approval by ADHS to provide “memory care” in order to continue to serve residents with various forms of dementia whom they’ve been helping under the licensed classification of directed care.

Because ADHS was allowed to bypass regulatory rulemaking that is established by the Administrative Procedures Act in the state, the Governors’ Regulatory Review Counsel will have no input into evaluating the true economic impact of these new rules on licensees. There are also no requirements imposed on the Department of Health staff and compliance officers to obtain equivalent dementia training and certification prior to surveying licensee subject to these rules. I do not expect that there will be many additional changes to the January 3, 2025 Draft of the amendments.  There are still a few grammatical errors and an erroneous internal cross-reference in January’s proposal, but assisted living licensees, and the public in general, should be gearing up for significant changes ahead.