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S.F. No. 8 - Assisted Living Licensing Requirements, Fees, and Fines Establishment; Health and Home Care Bills of Rights Modifications - Second Engrossment
 
Author: Senator Karin Housley
 
Prepared By: Liam Monahan, Senate Analyst (651/296-1791)
 
Date: May 7, 2019



 

Article 1 – Assisted Living Licensing

Section 1 (144G.10) provides definitions for the new content of Minnesota Statutes, Chapter 144G – Assisted Living, including:

Subdivision 8 defines “assisted living facility.”

Subdivision 12 defines “basic care facility.”

Subdivision 13 defines "basic care servcies."

Subdivision 17 defines “comprehensive assisted living services.”

Subdivision 23 defines “designated representative.”

Subdivision 62 defines "substantive compliance."

Subdivision 63 defines “supportive services.”

Section 2 (144G.11) specifies that beginning August 1, 2021, a license is required to operate a basic care facility or an assisted living facility, defines three categories of licensure, and establishes penalties for operating a facility without a license.

Section 3 (144G.12) specifies the powers of the commissioner of health to regulate licensed basic care facilities and assisted living facilities.

Subdivision 3 authorizes expedited rulemaking, but by explicitly referencing section 14.389, subdivision 5, requires public hearings if 100 signatures are received within 30 days of the public notice of the commissioner’s intention to implement expedited rules.

Section 4 (144G.13) specifies the license application requirements and procedures, specifies initial and change of ownership license application fees, and specifies fines for failure to apply for a license renewal on time and for operating a facility with an expired license.

Section 5 (144G.14) specifies the background study requirements and reconsideration procedures for license applicants.

Section 6 (144G.16) specifies the standards the commissioner shall consider when determining whether to issue a license to a license applicant.

Section 7 (144G.17) specifies the procedures for securing a provisional license prior to a new license applicant being issued a license, specifies the procedures for an initial survey during the provisional license period, the conditions under which a provisional license shall be terminated and license denied, and the right and procedure to appeal the termination of a provisional license and the denial of a license.

Section 8 (144G.18) specifies the conditions under which a nonprovisional license may be renewed.

Section 9 (144G.19) requires a license holder to notify the commissioner within 60 days of any change to the information provided by a licensee on the licensing application.

Article 2 – Surveys and Enforcement

Section 1 (144G.21) specifies the conditions under which the commissioner may take a negative licensing action.

Section 2 (144G.22) specifies the procedures for the commissioner to suspend a license or place conditions on a license.

Section 3 (144G.23) specifies the procedure for the commissioner to immediately temporarily suspend a license, including the licensee's right to appeal an immediate temporarily suspended license.

Section 4 (144G.24) specifies the conditions under which the commissioner must revoke a license.

Section 5 (144G.25) requires the commissioner to initiate proceedings within 60 days of taking certain negative licensing actions.

Section 6 (144G.26) requires a facility to notify its residents that the commissioner has taken a negative licensing action within five working days of being informed by the commissioner of the negative licensing action.

Section 7 (144G.27) requires the commissioner to notify the facility of any negative licensing action and to inform the facility of its appeal rights.

Section 8 (144G.28) specifies the appeal procedures for facilities that are the subject of a negative licensing action.

Section 9 (144G.29) permits the facility and the commissioner to hold informal conferences related to negative licensing actions.

Section 10 (144G.30) specifies the conditions under which a facility that was subject to a negative licensing action may be relicensed.

Section 11 (144G.31) permits the commissioner to bring an action in a state district court to enjoin a person from illegally engaging in activities regulated by the commissioner under Chapter 144G.

Section 12 (144G.32) authorizes the commissioner to issue subpoenas and compel attendance of witnesses for the purposes of any negative licensing proceedings under Chapter 144G.

Section 13 (144G.33) requires licensees who are subject to a final negative licensing action requiring the relocation of residents of the facility to develop a plan within three days of notification of the final action for the relocation of the facility’s residents.

Section 14 (144G.34) specifies the commissioner’s regulatory powers with respect to surveys of facilities, establishes survey frequency, requires facilities to provide accurate and truthful information to the commissioner, authorizes the commissioner to issue correction orders, requires follow-up surveys for certain violations, and authorizes the commissioner to issue notices of noncompliance with correction orders.

Section 15 (144G.35) establishes levels of violations, scope of violations, fines associated with certain levels and scope of violations, requires the commissioner to afford a facility the opportunity to correct certain violations before issuing a fine, establishes timelines for payment of assessed fines.

Section 16 (144G.36) specifies the conditions under which and the procedures by which a facility may request reconsideration of a correction order or an assessed fine.

Section 17 (144G.37) permits the commissioner to issue innovation variances from otherwise applicable requirements of Chapter 144G.

Article 3 – Facility Responsibilities

Section 1 (144G.38) specifies the minimum requirements for all licensed facilities, including standards for staffing, clinical nurse supervision, and infection control programs.

Section 2 (144G.39) specifies that the license holder, not the facility manager, is responsible to the resident for all housing and service-related matters; requires a facility to provide a uniform disclosure of services to all residents; specifies the rights of both residents and the facility with respect to services and housing.

Section 3 (144G.40) specifies the requirements of a facility’s business operations, including displaying a license, implementing a quality improvement program, prohibiting nongovernment operated facilities from serving as a resident’s guardian, conservator or representative, or accepting a resident’s power-of-attorney; placing restrictions on permissible actions a facility may take with respect to a resident’s finances; specifying the employee records a facility must maintain; specifying the resident records a facility must maintain; requiring a facility to make resident documents accessible to authorized access; requiring a facility to transfer resident records; requiring a facility to notify residents when the ownership or management of a facility changes; and requiring a facility to employ an assisted living administrator.

Section 4 (144G.42) specifies the requirements of a facility’s mandatory resident complaint and investigation procedures.

Section 5 ( 144G.43) requires facilities to report abuse and maltreatment and develop and implement abuse prevention plans for each resident.

Section 6 (144G.44) specifies the requirements of mandatory infection control programs.

Section 7 (144G.45) specifies the requirements of mandatory disaster planning and emergency preparedness.

Article 4 – Contracts, Terminations, and Relocations

Section 1 (144G.46) specifies the requirements of assisted living contracts.

Section 2 (144G.47) specifies the conditions under which and the procedures by which a resident’s housing or services may be terminated.

Section 3 (144G.48) specifies the conditions under which and the procedures by which a resident may appeal a termination of services.

Section 4 (144G.49) requires a facility that terminates housing or services to develop and implement a plan that will ensure the resident is relocated to a safe location and will receive needed services from another provider.

Section 5 (144G.50) specifies the resident relocation procedures a facility must follow in the event that the facility chooses to voluntarily close.

Section 6 (144G.51) specifies the procedures the commissioner and a facility must follow in the event that a facility must close unexpectedly.

Section 7 (144G.511) reserves the rights of residents under landlord-tenant law.

Section 8 (144G.52) specifies the conditions under which and the procedures by which a resident may be relocated within a facility.

Article 5 – Staffing Requirements

Section 1 (144G.53) specifies the staffing requirements for licensed facilities, including background studies, qualifications of licensed and unlicensed personnel, and temporary staffing.

Section 2 (144G.54) specifies the trainer requirements and the competency evaluation standards for unlicensed personnel.

Section 3 (144G.55) specifies the requirements for the delegation of nursing duties to unlicensed personnel and the supervision of unlicensed personnel.

Section 4 (144G.56) specifies the orientation and annual training requirements for all facility staff.

Section 5 (144G.57) specifies additional dementia care training requirements for staff of all facilities.

Article 6 – Services

Section 1 (144G.60) prohibits a facility from accepting a resident whose service needs the facility cannot meet.

Section 2 (144G.61) requires a facility to refer a resident to another service provider if the facility believes the resident requires additional or alternative services.

Section 3 (144G.62) requires a temporary plan and service agreement prior to initiating any services for a resident.

Section 4 (144G.63) requires a facility to complete individualized initial review or nursing assessment for each resident and continued monitoring of a resident’s service needs.

Section 5 (144G.64) specifies the requirements of service agreements between the resident and the facility.

Section 6 (144G.65) specifies the requirements and standards for medication management.

Section 7 (144G.66) specifies the requirements for treatment and therapy services.

Article 7 – Resident Rights and Protections

Section 1 (144G.70) specifies the notices a facility must make to potential residents and residents.

Section 2 (144.71) requires facilities to support the establishment of resident councils.

Section 3 (144G.713) requires a facility to post the facility’s grievance procedure.

Section 4 (144G.716) requires a facility to provide residents with the contact information of individuals or organizations that provide legal services and of the Office of Ombudsman for Long-Term Care; requires a facility to assist residents with obtaining information about whether MA or Medicare will pay for services, make reasonable accommodations for resident’s with communication difficulties, and provide all information in plain language.

Section 5 (144G.72) prohibits retaliation against residents or employees and defines “retaliate.”

Section 6 (144G.73) prohibits deceptive marketing and business practices.

Section 7 (144G.75) prohibits the use of restraints for discipline or for the convenience of facility staff.

Section 8 (144G.76) establishes a bill of rights for residents of facilities.

Section 9 (144G.77) specifies additional rights, including rights required under the home and community-based services waivers.

Section 10 (144G.78) specifies the procedures facilities must follow when a resident requests the discontinuation of life-sustaining treatment.

Section 11 (144G.79) requires facilities to disclose forced arbitration provisions in any contract.

Article 8 – Physical Plant Requirements

Section 1 (144G.80) specifies minimum site, physical environment, and fire safety requirements for all licensed facilities.

Article 9 – Assisted Living with Secure Dementia Unit Licensure

Section 1 (144G.85) specifies additional licensing requirements for facilities with secure dementia units.

Section 2 (144G.86) specifies additional responsibilities for facilities with secure dementia units.

Section 3 (144G.87) specifies additional staffing and staff training requirements for facilities with secure dementia units.

Section 4 (144G.88) specifies additional mandatory services to be provided by facilities with secure dementia units.

Section 5 (144G.991) establishes a Quality of Care and Outcomes Improvement Task Force.

Section 6 (Transition Period) establishes the timeline for the rulemaking process, implementation planning, licensing conversions, and full implementation of the new facility licensing requirements.

Section 7 (Repealer) repeals the existing housing with services chapter of law, the existing assisted living services provisions, and the existing special care unit statute effective on the date of full implementation of the new licensing requirements.

Article 10 – Board of Executives for Long-Term Services and Supports

Article 10 changes the name of the Board of Examiners for Nursing Home Administrators to the Board of Executives for Long-Term Services and Supports, deletes obsolete language, imports existing licensing fees from Minnesota Rules, and makes the following substantive changes:

Section 3 (144A.23, clause 7) removes certain restrictions on the purpose and number of classroom hours permitted for courses designed to prepare individuals for licensing.

Section 4 (144A.26, subdivision 2) permits the board to issue a new type of license known as a health services executive license.  In order to be issued a health services executive license, a person must be validated by a national organization and meet the minimum qualifications for all of the following: nursing home administrator, assisted living administrator, and a home and community-based service provider.

Section 5 (144.291) is the Board’s existing fee structure imported from Minnesota Rules, part 6400.6970, with the addition of a licensing fee for an initial health services executive license.

Article 11 – Assisted Living Licensure Conforming Changes

Sections 1 to 3 classify government data on facilities in the same manner as similar data on home care providers is currently classified.

Section 4 (144.051, subdivision 1) adds basic care and assisted living facilities to the Department of Health background study statutes.

Section 5 (144.122) establishes licensing fees for facilities, but the fee amount is blank.

Section 6 (144A.43, subdivision 6) modifies the definition of home care “license” to specify that a home care provider license permits providing home care services outside a facility.

Section 7 (144A.44, subdivision 1) makes changes to the home care bill of rights to incorporate many of the rights included in the assisted living bill of rights that are not currently included in the home care bill of rights in an attempt to make the two bills of rights more consistent.

Section 8 (144A.441) makes conforming changes to the assisted living services bill of rights addendum to the home care bill of rights.

Section 9 (144A.442) makes technical changes to the assisted living services termination statute.

Section 10 (144A.471, subdivision 7) adds treatment and therapies to the services that may be provided with a comprehensive home care license.

Section 11 (144A.147, subdivision 9) makes technical changes to home care licensing statutes; removes an exclusion from home care licensure for employees of other licensed providers that respond to emergencies in other facilities or provide minor services free of charge.

Section 12 (144A.472, subdivision 7) adds a new fee of $1,000 for a provisionally licensed home care provider that fails to notify the commissioner that the provider has begun to provide services; also redirects collected fines from the state government special revenue fund to a dedicated special revenue account.

Section 13 (144A.475, subdivision 3b) makes a technical change to the expedited hearing language for home care providers subject to certain negative licensing actions.

Section 14 (144A.475, subdivision 5) modifies home care requirements for a client transfer plan following a final negative licensing action.

Section 15 (144A.476, subdivision 1) adds a requirement that the commissioner of health conduct background studies on license applicants when processing a change of ownership license application.

Section 16 (144A.4791, subdivision 10) requires 30-day written notice before the termination of home care services.

Section 17 (144A.4799) modifies the purpose and membership of the existing Home Care Advisory Council to include assisted living facilities.

Section 18 (256I.03, subdivision 15) modifies the definition of “supportive services” for the purposes of the DHS housing support program.

Section 19 (256I.04, subdivision 2a) makes conforming changes to the housing supports statute.

Section 20 (626.5572, subdivision 6) makes conforming changes to the housing supports statute.

Section 21 (626.5572, subdivision 21) adds a resident of an assisted living facility to the definition of “vulnerable adult.”

Section 22 (Repealer) repeals a home care provision that requires multiple licenses if the commissioner determines that a licensee can’t adequately supervise multiple locations in which home care services are provided.

Article 12 – Electronic Monitoring

Section 1 [144.6502]

Subdivision 1 provides definitions of “electronic monitoring,” “commissioner,” “department,” “electronic monitoring device,” “facility,” “resident,” and “resident representative.”

Paragraph (f) defines a facility as a nursing home, a boarding care home, or a housing with services establishment that is either an assisted living establishment or that has a special unit, such as a dementia care unit.

Subdivision 2 authorizes a resident or resident representative to conduct electronic monitoring of the resident’s room or private living unit and clarifies that electronic monitoring as defined in this section is not a covered service under the medical assistance home and community-based waiver plans.

Subdivision 3, paragraphs (a) and (b) require the resident to consent in writing to electronic monitoring. If the resident has not affirmatively objected and the resident’s medical professional determines the resident currently lacks the ability to understand and appreciate the consequences of electronic monitoring, the resident representative may consent on the resident’s behalf.

Paragraph (c) provides that the resident may place conditions on monitoring.

Paragraph (d) requires a resident to obtain a roommate’s consent.  The same consent requirements that apply to the resident apply to the roommate.

Paragraph (e) requires a resident to obtain consent from a new roommate.  

Paragraph (f) allows a resident or roommate to withdraw consent at any time.

Subdivision 4 requires a facility to make a reasonable attempt to accommodate a resident who wants to conduct electronic monitoring if a roommate refuses or withdraws consent. A facility is not required to provide a private room if a resident is unable to pay the requisite rate or rent.

Subdivision 5, paragraph (a) requires notice to the facility, except as provided in paragraph (f), prior to a resident beginning electronic monitoring.

Paragraphs (b) and (c) require facilities to maintain signed notification and consent forms on file and make them available for updating. 

Paragraphs (d) and (e) require facilities to remove electronic monitoring devices if the facility does not have a valid consent form on file.

Paragraph (f) provides an exception to the requirement that a resident or resident representative provide notice to a facility prior to conducting electronic monitoring. If the resident meets the listed qualifications, notifies the Office of the Ombudsman for Long-Term Care prior to conducting the electronic monitoring, and adheres to the requirements of this paragraph, then the electronic monitoring without notice to the facility is permitted for up to 14 days.

Subdivision 6 specifies the requirements for the notification and consent form and clarifies that a form submitted to the ombudsman for long-term care is protected data under the ombudsman's existing data protection statute. Beginning January 1, 2020, facilities must make the form available and inform residents of their option to conduct electronic monitoring.

Subdivision 7 specifies that the resident is responsible for the cost of installation and monitoring of an electronic monitoring device. The facility must make a reasonable attempt to accommodate the resident’s installation needs.

Subdivision 8 requires facilities, at their own expense, to post signage stating that electronic monitoring may be occurring in the facility.

Subdivision 9 prohibits anyone from knowingly and without permission interfering with an electronic monitoring device unless it is done at the resident's request or because a resident or roommate withdrew consent.

Subdivision 10 prohibits anyone from accessing any recordings without permission and prohibits dissemination of recordings except to address the health, safety, or welfare of a resident.

Subdivision 11 provides for the admissibility of a recording as evidence in legal proceedings.

Subdivision 12 provides a facility with immunity from state civil or criminal liability as a result of a resident or resident representative disseminating a recording.

Subdivision 13 clarifies that the immunity from liability that applies to the Office of the Ombudsman for Long-Term Care under its general statute also applies when performing its duties under this section.

Subdivision 14 prohibits a facility from refusing to admit or from removing a resident, or retaliating or discriminating against a resident for the resident’s choices with respect to electronic monitoring.  A facility may not prevent the installation or use of electronic monitoring provided the resident has satisfied the requirement that written consent be obtained and notice provided as required under subdivision 5.

Subdivision 15 requires that an employee who is subject to corrective or disciplinary action based on evidence obtained by electronic monitoring be given access to the evidence for the purposes of defending against the employment action.

Subdivision 16 specifies penalties that may be imposed on facilities by the commissioner of health for violations of this section.

Section 2 [Direction to the Commissioner of Health] requires the Commissioner of Health by January 1, 2020, to develop and make available on the department’s website a notification and consent form for electronic monitoring that meets the requirements of Minnesota Statutes, section 144.6502, subdivision 6.

Section 3 [Transition to Authorized Electronic Monitoring in Certain Health Care Facilities] requires anyone conducting electronic monitoring to comply with the requirements of Minnesota Statutes, section 144.6502, by January 1, 2020.

Article 13 – Office of Health Facility Complaints; Minnesota Vulnerable Adults Act

Section 1 (144A.53, subdivision 1, paragraph (f)) modifies the statute governing the powers of the Office of Health Facility Complaints (OHFC) by clarifying OHFC’s authority to issue fines for violations of the nursing home licensing statutes and home care licensing statutes, the home care bill of rights, as well as for failures to cooperate with the OHFC.

Section 2 (section 144A.53, subdivision 5) directs the Office of Health Facility Complaints to establish a safety and quality improvement technical panel to examine and make recommendations on how to apply safety and quality improvement practices and infrastructure to long-term services and supports.

Section 3 (section 144A.53, subdivision 6) directs the Office of Health Facility Complaints to establish a training and operations panel to examine and make recommendations on how to improve office operations. Lists who the panel must include and the panel duties.

Section 4 (section 144A.53, subdivision 7, paragraph (a)) requires the director of the Office of Health Facility Complaints to post the following information for the past three years on the Department of Health website: the public portions of all substantiated maltreatment reports; correction orders and certification deficiencies issued as a result of a maltreatment investigation; and whether the facility or provider has appealed the correction order, report, or deficiency.

Paragraph (b) requires the posted information to be updated following an appeal, and to be updated to indicate that the facility or provider is in substantial compliance with the correction order.

Paragraph (c) requires this information to be posted in a nonduplicative manner, in coordination with other divisions at MDH, and in a format that allows consumers to search for information by facility or provider name and by a facility’s physical address or a provider’s local business address.

Section 5 (626.557, subdivision 4) requires the common entry point to provide a way to record that a reporter has electronic evidence to submit.  All reports must be directed to the common entry point.

Section 6 (626.557, subdivision 9c) modifies the law governing lead investigative agency notification requirements, dispositions, and determinations.

Paragraph (a) requires the lead investigative agency to give reporters notice that a report has been received and provide information on the initial disposition in all cases, not just upon request.

Paragraph (b) provides that except to the extent prohibited by federal law, within five days of initiation of an investigation when the Department of Health is the lead investigative agency, specified information must be provided to the vulnerable adult or the vulnerable adult’s guardian or health care agent regarding the report.  It would include the type of maltreatment allegation, name of the facility or other location where alleged maltreatment occurred, dates of alleged maltreatment, contact information for the investigator, and confirmation of whether the lead investigative agency is investigating the matter.

Paragraph (c) provides for the release of maltreatment information to the vulnerable adult or the guardian or health care agent in cases where the Department of Health is the lead investigative agency.

Paragraph (d) contains provisions governing receipt and use of electronic evidence.

Paragraphs (e) and (f) require reports related to the same vulnerable adult to be cross-referenced, and they may be assigned to the same investigator, as appropriate.

Paragraph (k) provides that upon completing the investigation, a copy of the public investigation memorandum must be provided to law enforcement and a county attorney, as appropriate.

Section 7 (626.557, subdivision 12b) amends data classifications and provides for sharing of data.

Paragraph (b) provides that data maintained by the common entry point would be private data on individuals or nonpublic data, as opposed to confidential or protected nonpublic data.  The name of the reporter would remain confidential data on individuals.

Paragraph (c) includes new provisions that would allow the sharing of data with a vulnerable adult or interested person if the lead investigative agency determined that the sharing was needed to protect the vulnerable adult.

Paragraph (m) allows a lead investigative agency to share common entry point or investigative data and notify other affected parties, including the vulnerable adult, if it determines that there is reason to believe maltreatment has occurred and the information will dispel widespread rumor or unrest in the facility.

Section 8 (Direction to the Commissioner of Health) requires the commissioner to submit by March 1, 2020, a report to the legislature documenting the commissioner’s progress toward implementing the changes at the Office of Health Facility Complaints (OHFC) to which the commissioner committed in the commissioner’s letter responding to the Office of the Legislative Auditor’s report on the OHFC.

Section 9 (Direction to the Commissioner of Health) requires the commissioner to submit quarterly reports to the legislature containing measures and analysis of the Office of Health Facility Complaints’ response to reports of maltreatment of vulnerable adults.

Section 10 requires a report from the safety and quality review panel created under section 2 by January 15, 2020.

Article 14 – Miscellaneous

Section 1 (144.1503) modifies the home and community-based services employee scholarship program by adding a loan forgiveness program for qualified educational loans.

Section 2 (144A.10, subdivision 1) clarifies the commissioner’s authority to issue fines and correction orders to nursing homes.

Section 3 (144A.45, subdivision 1) modifies the statute governing the commissioner of health’s authority to regulate home care providers by clarifying that the commissioner may impose correction orders and fines for a home care provider’s violation of the home care bill of rights.

Section 4 (144A.45, subdivision 2) clarifies the commissioner’s authority to issue correction orders and fines to home care providers.

Section 5 (144A.474, subdivision 8, paragraph (a)) modifies the home care licensing statute by permitting the commissioner of health to impose immediate fines for licensing violations.

Paragraph (b) requires a home care provider who is fined to keep a record of the fine and the provider’s correction plan on file and available for public inspection by any person upon request.

Section 6 (144A.474, subdivision 9) modifies the home care licensing statute by permitting the commissioner to issue new immediate fines for new violations discovered during a follow-up survey.

Section 7 (144A.474, subdivision 11, paragraphs (c) to (f)) modify and clarify the home care licensing statute by explicitly stating that the commissioner can assess additional immediate fines, in addition to any fine for the original licensing violation, for noncompliance with a prior correction order, noncompliance with a notice of noncompliance with a correction order, and for failure to pay fines on time.

Section 8 (611A.033) requires the state to move for a speedy trial upon a vulnerable adult victim’s request in any criminal proceeding.

Section 9 (630.38) requires the state to move to depose a vulnerable adult victim upon their request in any criminal proceeding. Requires the court to grant the request if the age and health of the victim justify doing so.

 Article 15 - Appropriations

 

 

 

 
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