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S.F. No. 3438 - Eldercare and Vulnerable Adult Protection Act
Author: Senator Karin Housley
Prepared By:
Date: March 19, 2018


“**” means the summary reflects changes anticipated in an author’s amendment

Section 1 [144.6502] establishes the conditions under which electronic motoring is a protected right of residents of a nursing facility, a boarding care home, or an assisted living setting.  This section is effective January 1, 2019.

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

Paragraph (d) defines “facility” as including nursing facilities, boarding care facilities, and assisted living settings.

Paragraph (e) defines “legal representative” as a person with legal authority to make decisions about health care services for a resident, including (by cross-reference) a spouse, parent, adult child, adult sibling, or next of kin of the resident.

**Paragraph (f) requires a copy of the notification and consent form be given to the facility.

Subdivision 2 requires a nursing facility, a boarding care home, or an assisted living setting to permit a resident or a resident’s legal representative to conduct electronic monitoring of a resident’s room or private living space.

Subdivision 3, paragraphs (a) to (c), require the resident to consent in writing to electronic monitoring on a standard form provided by the commissioner of health. The resident may place conditions on monitoring. If the resident’s physician determines the resident cannot provide consent, the resident’s legal representative may consent on the resident’s behalf. 

Paragraphs (c) and (d) require a resident to obtain a roommate’s consent.  The same consent requirements that apply to resident apply to the roommate.

Paragraph (e) requires a resident to remove an electronic monitoring device if a resident gets a new roommate and the new roommate refuses to consent to electronic monitoring.  If the resident does not remove the electronic monitoring device, the facility must remove it.

Subdivision 4 allows a resident or roommate to withdraw consent at any time and contains requirements of residents and facilities when consent to electronic monitoring is denied or withdrawn.  If a roommate refuses or withdraws consent, the facility must make a reasonable attempt to accommodate the resident by finding another room or roommate.  A facility is not required to provide a private room unless the resident pays the private room rate.

Subdivision 5 specifies the requirements for the notification and consent form the commissioner of health is required to make available by January 1, 2019. The form must include information on how and where consent was obtained, the type of device, installation needs, proposed date, and any conditions or restrictions on use of the device.

Subdivision 6 specifies that the resident is responsible for the cost of installation and monitoring of an electronic monitoring device.

Subdivision 7 requires facilities, at their own expense, to post signage stating that electronic monitoring may be occurring in the facility.

Subdivision 8 prohibits anyone from knowingly and without permission interfering with an electronic monitoring device unless a facility does so because a resident or roommate withdrew consent.

Subdivision 9 prohibits a facility from accessing any recordings without permission and prohibits dissemination of recordings except to address the health, safety, or welfare of a resident.

Subdivision 10 provides a facility with immunity from civil or criminal liability arising from a resident disseminating a recording or for any violations of a resident’s right to privacy arising from the use of electronic monitoring in accordance with this section.

Subdivision 11 prohibits a facility from refusing to admit, discharging or evicting, or retaliating against a resident for the resident’s choices with respect to electronic monitoring.  A facility may not prevent or interfere with the installation of electronic monitoring provided the resident has satisfied the requirement that written consent be obtained.

Sections 2 to 7 modify the health care bill of rights, which covers residents of nursing facilities.  Many of the changes in these sections align the health care bill of rights with the home care bill of rights.

Section 2 (144.651, subdivision 2, paragraphs (a) to (c)) modifies definitions for the purposes of the health care bill of rights. The changes are technical and editorial.

Paragraph (d) clarifies the meaning of health care facility for the purposes of the health care bill of rights. 

Paragraph (e) defines “interested person” for the purposes of the health care bill of rights, and includes (by cross-reference) a guardian or conservator, person designated in writing by the resident, health care agent, or spouse, parent, adult child, adult sibling, or next of kin of the resident.

Section 3 (144.651, subdivision 14) modifies the health care bill of rights to include by cross-reference a patient’s or resident’s right to various notifications regarding reports of maltreatment of vulnerable adults, which includes notice that a report has been made, disposition of a report, and appeal rights (see sections 48 and 49).

Section 4 (144.651, subdivision 16) modifies the health care bill of rights by including a right to confidential treatment of a patient’s or resident’s financial records, and a right to access records about them.

Section 5 (144.651, subdivision 20, paragraph (a)) modifies the health care bill of rights by adding that a patient or resident has the right to be free from retaliation for voicing grievances, asserting rights or recommending changes to facility policy.

Paragraph (b) establishes a right to complain, requires the facility to provide residents, patients and interested persons with the name of the individual who is responsible for handling grievances, and requires the facility to investigate grievances and attempt a resolution.

Paragraph (c) is slightly re-written language stricken from new paragraph (a).

**Section 6 [144.651, subdivision 34, paragraph (a)] prohibits a facility from retaliating against a patient or resident who files a grievance, submits a maltreatment report, advocates for improved care or enforcement of rights, or contracts to receive services from a provider of the resident’s choice.

Paragraph (b) establishes a rebuttable presumption of retaliation when a facility takes an adverse action within 90 days of a patient or resident filing a grievance, reporting maltreatment, or advocating on behalf of a patient or resident.

Paragraph (c) defines adverse action by cross-reference to an amended definition in the statute governing the reporting of maltreatment of vulnerable adults.  Adverse actions include discharge from a facility, restricting access to the facility, restrictions of rights, restrictions of access to services or amenities, and sudden increase in cost of services.

Section 7 [144.651, subdivision 35] modifies the health care bill of rights by adding a right to electronic monitoring.

Section 8 [144.6511, paragraph (a)] forbids a health care facility, as defined for the purposes of the health care bill of rights, to engage in deceptive marketing and business practices.

Paragraph (b) defines deceptive practices.

Section 9 (144A.44) modifies the home care bill of rights, which, as amended, covers persons receiving services from home care providers or services in an assisted living setting.

Subdivision 1, paragraph (a)  expands the definition of “provider” to include not only home care providers, but also housing with services establishments; expands the definition of “services” to include not only home care services, but also supportive services and health-related services offered by housing with services establishments; and expands the definition of “service plan” to include not only a home care service plan, but any contract or lease between a client and a housing with services establishment.

Paragraph (b) is rewritten language moved forward from subdivision 2 below.

Paragraph (c) lists the rights protects under the home care bill of rights. To a large extent the changes to this paragraph align the home care bill of rights with the health care bill of rights.  Of particular note are:

Clause (17), which increases from 10 to 30 days the required advanced notice providers must give a client before terminating services or a lease;

Clause (23), which adds by cross-reference a client’s right to various notifications regarding reports of maltreatment of vulnerable adults;

Clause (24), which adds a right, at the client’s expense, to internet service; and

Clause (25), which adds a right to electronic monitoring.

Paragraph (d) specifies additional duties of providers to assist clients in the exercise of their rights and in finding accessing information to which they are entitled or have a need.

Subdivision 2 strikes language that was moved elsewhere in the section and rewrites for clarity the remaining language.

Subdivision 3, paragraph (a) contains language stricken from subdivision 2 that was moved, and requires the commissioner of health to enforce the home care bill of rights against housing with services establishments.

**Subdivision 4 contains a cross-reference to the retaliation language added to the health care bill of rights.

  Section 10 (256.045, subdivision 3) amends the state agency fair hearing process to allow a vulnerable adult who is the subject of a maltreatment investigation or an interested person to request a fair hearing.  Current law only applies to an individual or facility who has been determined to have maltreated a vulnerable adult.

Section 11 (256.045, subdivision 4) amends the procedure under the fair hearing process to modify notification requirements, consistent with the changes in section 10.

Section 12 (325F.71) expands the current law providing additional civil penalties for deceptive acts perpetrated against senior citizens or disabled persons to add vulnerable adults. Factors to be considered by the court in imposing a civil penalty are expanded to include whether the defendant provided or arranged for health care or services that are inferior to, substantially different than or substantially more expensive than offered, promised, marketed, or advertised.

Section 13 (609.2231, subdivision 8) amends the fourth-degree assault crime against vulnerable adults to eliminate a requirement that the assault inflicted demonstrable bodily harm.

Sections 14 to 27 amend the vulnerable adult maltreatment reporting law.

Section 14 (626.557, subdivision 3) requires mandated reporters to make reports as soon as possible, but in no event longer than 24 hours (current law requires a report to be made “immediately”).

Section 15 (626.557, subdivision 4) requires the common entry point to provide a method for a reporter to electronically submit evidence.  All reports must be directed to the common entry point.

Section 16 (626.557, subdivision 9) requires the common entry point to cross-reference multiple complaints concerning the same alleged perpetrator, facility, or licensee; the same vulnerable adult; or the same incident.

Section 17 (626.557, subdivision 9a) requires the common entry point to immediately notify the appropriate law enforcement agency if it determines that there is an immediate need for response by law enforcement.

Section 18 (626.557, subdivision 9b) provides that law enforcement must obtain the results of any investigation conducted by the lead investigative agency to determine if criminal action is warranted.

Section 19 (626.557, subdivision 9c) modifies the law governing lead investigative agency notification requirements, dispositions, and determinations.  Reporters would receive notice that a report had been received and provided information on the initial disposition in all cases, not just upon request.  Within five days of receipt of a report, specified information must be provided to the vulnerable adult or the vulnerable adult’s interested person regarding the report.  It would include the nature of the maltreatment allegations, name of the facility or other location where alleged maltreatment occurred, name of alleged perpetrator, protective measures that may be recommended or taken, contact information for the investigator, and confirmation of whether the lead investigative agency is investigating the matter.   Upon completing the investigation, a copy of the public investigation memorandum must be provided to law enforcement and a county attorney, as appropriate.  The notice to the vulnerable adult would include a reference to the fair hearing process discussed in sections 10 and 11, which replaces the vulnerable adult maltreatment review panel.

Section 20 (626.557, subdivision 9d) strikes a reference to the vulnerable adult maltreatment review panel and replaces it with language specifying that the vulnerable adult or interested person may request a fair hearing. A definition of “interested person” is stricken as it is now defined under section 27.

Section 21 (626.557, subdivision 9e) requires the commissioners of health and human services to develop and maintain written guidance for facilities that explains the reporting requirements as well as specified requirements under federal law.

Section 22 (626.557, subdivision 10b) requires a lead investigator to contact the alleged victim, if known, or an interested person within five days after initiation of an investigation to provide the investigator’s name and contact information.  The investigator must also communicate approximately every three weeks over the course of the investigation.

Section 23 (626.557, subdivision 12b) amends data classifications.  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.  New provisions would allow the sharing of data with a vulnerable adult or interested person if both the commissioners of health and human services determine that the sharing is needed to protect the vulnerable adult. A mandated reporter would be authorized to disclose that the individual was the reporter to support a claim of retaliation that might be made against them for making a report. Finally, a lead investigative agency is authorized 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 safeguard the well-being of the affected parties.

Section 24 (626.557, subdivision 14) gives the commissioner of health authority to issue a correction order and impose an immediate fine upon finding that a facility has failed to comply with abuse prevention plan requirements.

Section 25 (626.557, subdivision 17) amends the prohibition on retaliation for persons who make reports.  It would include a person who the facility believes reported suspected maltreatment. The definition of “adverse action” is expanded to include additional items.

Section 26 (626.5572, subdivision 6) expands the definition of facility for the purposes of the requirements governing the reporting of maltreatment of vulnerable adults by including all housing with services establishments, including assisted living settings, under the definition of facility.

Section 27 (626.5572, subdivision 12a) adds a definition of "interested person."  It includes a guardian or conservator; health care agent, and specified family members or next of kin.

Section 28 (Crimes Against Vulnerable Adults Advisory Task Force) establishes a task force to make recommendations and draft legislation by December 1, 2018, for changes to state statute involving crimes against vulnerable adults.

Section 29 (Repealer) repeals the vulnerable adult maltreatment review panel since the bill permits the review panel’s current function to be carried out through the state agency hearing process.

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