1. (a)

   1. (1) As used in this part, the following definitions shall apply unless the context clearly states otherwise.
   2. (2) Where this part refers to an enactment of the General Assembly, such reference shall include subsequent enactments or amendments by the General Assembly on the same subject matter.
   3. (3) Note. Please refer to Appendix A of this part for a listing of Arkansas statutes as referenced in the following definitions.

2. (b) As used in this part:

   1. (1)

      1. (A) “Absence” means circumstances where the resident cannot be located or has left a facility and there is sufficient question as to the whereabouts of the resident.
      2. (B) Facilities must comply with all reporting requirements of any special programs in which they participate;
   2. (2) “Abuse” shall have the same meaning as prescribed by Arkansas Code § 5-28-101;
   3. (3) “Administrator” means the person designated as being in charge of the daily operation of the facility;
   4. (4) "Certified administrator" means an administrator who has completed the certification course offered by the Arkansas Association of Residential Care Facilities;
   5. (5) “Basic charge” means the lowest rate charged by a facility to a client for specific services for a set period of time;
   6. (6) “Boarding home” means any place, building, or structure, other than a hotel, inn, or transient lodging place, that is offered, used, maintained, or advertised to the public as a place of residence which, incidental to occupancy, may also offer meals and housekeeping services to the residents, but may not offer or furnish to residents, either directly or in concert with any entities as defined in Arkansas Code §§ 20-10-213 – 20-10-228, oversight, supervision, or care;
   7. (7) “Caregiver” shall have the same meaning prescribed by Arkansas Code § 5-28-101;
   8. (8) “Department” means the Department of Human Services or its successor as created by Arkansas Code § 25-10-101;
   9. (9) “Direct care staff” means a caregiver acting on behalf of, employed by, or under the control or supervision of a licensed facility;

   10. (10)

       1. (A) “Direct threat” means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.
       2. (B) This term as used in this part is designed to ensure conformity with the Americans with Disabilities Act in determining whether an individual with a disability poses a "direct (health or safety) threat".
       3. (C)
3. (i) This determination must be made on a case-by-case basis, through consideration of the following factors:
4. (a) (a) The duration of the risk;
5. (b) (b) The nature and severity of the potential harm;
6. (c) (c) The likelihood that the potential harm will occur; and

7. (d) (d) The imminence of the potential harm.

   1. (ii) See 29 CFR § 1630.2(r).

      1. (D) This individualized inquiry must be based on the behavior of the particular disabled person, not merely on generalizations about the disability.
   2. (11) “Division” means the Division of Medical Services within the Department of Human Services and prescribed by Arkansas Code § 20-10-101;
   3. (12) “Emergency measures” means those measures necessary to respond to a serious situation which may result in death or trauma;
   4. (13) “Endangered adult” shall have the same meaning as prescribed by Arkansas Code § 5-28-101;
   5. (14) “Exploitation” shall have the same meaning as prescribed by Arkansas Code § 5-28-101;
   6. (15) “First-aid measures” means temporary procedures necessary to relieve trauma or injury by applying dressing and/or band-aids;
   7. (16) “Imminent danger to health and safety” shall have the same meaning as prescribed by Arkansas Code § 5-28-101;
   8. (17) “Impaired adult” shall have the same meaning as prescribed by Arkansas Code § 5- 28-101;

   9. (18)

      1. (A) “Independently mobile” means an individual who is physically and mentally capable of vacating the residential care facility in case of emergency, including the capability to ascend or descend stairs that are present in the exit path.

      2. (B) Residents who can use canes, wheelchairs, or walkers are considered independently mobile as long as they:

         1. (i) Do not require more than verbal or minimum assistance from another person to vacate; and
         2. (ii) Can do so in three (3) minutes or as required by local fire code;

   10. (19) “Initial licensure” means a license that applies to:

       1. (A) Newly constructed residential care facilities; and
       2. (B) All facilities not already licensed as residential care facilities;
   11. (20) “Long-term care facility” shall have the same meaning as prescribed by Arkansas Code § 20-10-213;

   12. (21)

       1. (A) “Long-term care facility license” means a time-limited nontransferable permit required by Arkansas Code § 20-10-224 issued for a maximum period of twelve (12) months to a licensee who complies with Office of Long-Term Care rules.
       2. (B) This documentation must list the maximum number of beds for the facility and any limitations thereto;
   13. (22) “Mental illness” means a primary impairment of brain function such as psychosis, neurosis, or behavior reaction resulting in difficulty in adapting to the environment;
   14. (23) “Mental retardation” means a subnormal intellectual functioning often present since birth or apparent in early life, the degree of which may be indicated by the IQ of seventy (70) (± five (5)) or below;
   15. (24) “Neglect” shall have the same meaning as prescribed by Arkansas Code § 5-28-101;
   16. (25) “Office of Long-Term Care” means the office in the Division of Medical Services of the Department of Human Services that has responsibility for the licensure, certification, and regulation of long-term care facilities, herein referred to as the office;
   17. (26) “Personnel” means any person who, under the direction, control, or supervision of facility administration, provides services for compensation or who provides services voluntarily, and includes the owner, operator, professional, management and individuals, firms, or entities providing goods or services pursuant to a contract or agreement;

   18. (27)

       1. (A) “Proprietor/licensee” means any person, firm, corporation, governmental agency, or other legal entity:

          1. (i) Issued a residential care facility license; and
          2. (ii) That is responsible for maintaining approved standards.
       2. (B) Facilities owned and operated by entities exempted from state licensure by state or federal law shall be excluded from this part;
   19. (28) “Protective services” shall have the same meaning as prescribed by Arkansas Code § 5-28-101;
   20. (29) “Provisional licensure” means a temporary grant of authority to the purchaser to operate an existing long-term care facility upon application for licensure to the Office of Long-Term Care;
   21. (30) “Residential and Adult Day Care Section” means the unit within the Office of Long-Term Care charged with survey, licensure, and complaint investigations for residential care facilities and adult day care facilities;
   22. (31) “Residential care facility (RCF)” shall have the same meaning as prescribed by Arkansas Code § 20-10-101(15);

   23. (32)

       1. (A) “Residential care facility services” means services provided, in accordance with this part, to independently mobile adult residents whose functional capabilities may have been impaired but who do not require hospital or nursing home care on a daily basis but could require other assistance in activities of daily living.

       2. (B) A residential care facility does not provide nursing or medical services and shall not offer, attempt to provide, or provide services to an individual in need of:

          1. (i) Hospitalization;
          2. (ii) Substance abuse treatment; or
          3. (iii) Nursing services.
       3. (C) Residential care facility personnel may not administer or attempt to administer medications;

   24. (33)

       1. (A) “Supportive services” means occasional or intermittent direction or monitoring of an individual resident as he or she carries out activities of daily living and social activities.
       2. (B) “Supportive services” do not include continuous monitoring or delivery of actual hands-on or physical assistance to a resident in the performance of the activities of daily living;

   25. (34)

       1. (A) “Transfer” means the movement of a resident from one facility to another facility.
       2. (B) “Transfer” does not include room changes within the same facility; and

   26. (35)

       1. (A) “Undue burden,” as used in this part, is a term designed to ensure conformity with the Americans with Disabilities Act in a determination that an individual's service needs are greater than what the facility is licensed to provide and to that end shall be liberally construed to effectuate the intent of the Americans with Disabilities Act.

       2. (B) Before a facility may deny admission or discontinue care based on a disability, meeting the individual's needs must be shown to:

          1. (i) Place an undue burden on the facility; or
          2. (ii) Fundamentally alter the program to the point where residential services are no longer being provided.

       3. (C)

          1. (i) In order to determine if an alteration would be an undue burden, the following factors are to be considered:
8. (a) (a) The nature and cost of the action needed;

9. (b) (b) The overall financial resources of the site or sites involved in the action, the number of persons employed at the site, the effect on expenses and resources, legitimate safety requirements that are necessary for safe operation;

   1. (c) (c) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;

      1. (d) (d) The overall financial resources of any parent corporation or entity, the overall size of the parent corporation with respect to the number of its employees, the number, type, and location of its facilities; and

10. (e) (e) The type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.

    1. (ii) See 28 C.F.R. § 36.104.

Codification Notes: Americans with Disabilities Act is codified generally at 42 U.S.C. § 12101 et seq.