1.1                          A bill for an act 
  1.2             relating to health; modifying regulatory requirements 
  1.3             and standards for nursing facilities; amending 
  1.4             Minnesota Statutes 2002, sections 144A.04, subdivision 
  1.5             3, by adding a subdivision; 144A.10, subdivision 6b, 
  1.6             by adding a subdivision; 256B.434, subdivision 10.  
  1.7   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.8      Section 1.  Minnesota Statutes 2002, section 144A.04, 
  1.9   subdivision 3, is amended to read: 
  1.10     Subd. 3.  [STANDARDS.] (a) The facility must meet the 
  1.11  minimum health, sanitation, safety and comfort standards 
  1.12  prescribed by the rules of the commissioner of health with 
  1.13  respect to the construction, equipment, maintenance and 
  1.14  operation of a nursing home.  The commissioner of health may 
  1.15  temporarily waive compliance with one or more of the standards 
  1.16  if the commissioner determines that: 
  1.17     (a) (1) temporary noncompliance with the standard will not 
  1.18  create an imminent risk of harm to a nursing home resident; and 
  1.19     (b) (2) a controlling person on behalf of all other 
  1.20  controlling persons: 
  1.21     (1) (i) has entered into a contract to obtain the materials 
  1.22  or labor necessary to meet the standard set by the commissioner 
  1.23  of health, but the supplier or other contractor has failed to 
  1.24  perform the terms of the contract and the inability of the 
  1.25  nursing home to meet the standard is due solely to that failure; 
  1.26  or 
  2.1      (2) (ii) is otherwise making a diligent good faith effort 
  2.2   to meet the standard. 
  2.3      The commissioner shall make available to other nursing 
  2.4   homes information on facility-specific waivers related to 
  2.5   technology or physical plant that are granted.  The commissioner 
  2.6   shall, upon the request of a facility, extend a waiver granted 
  2.7   to a specific facility related to technology or physical plant 
  2.8   to the facility making the request, if the commissioner 
  2.9   determines that the facility also satisfies clauses (1) and (2) 
  2.10  and any other terms and conditions of the waiver.  
  2.11     The commissioner of health shall allow, by rule, a nursing 
  2.12  home to provide fewer hours of nursing care to intermediate care 
  2.13  residents of a nursing home than required by the present rules 
  2.14  of the commissioner if the commissioner determines that the 
  2.15  needs of the residents of the home will be adequately met by a 
  2.16  lesser amount of nursing care. 
  2.17     (b) A facility is not required to seek a waiver for room 
  2.18  furniture or equipment under paragraph (a) when responding to 
  2.19  resident-specific requests, if the facility has discussed health 
  2.20  and safety concerns with the resident and the resident request 
  2.21  and discussion of health and safety concerns are documented in 
  2.22  the resident's patient record. 
  2.23     <b>[EFFECTIVE DATE.]</b> This section is effective July 1, 2003. 
  2.24     Sec. 2.  Minnesota Statutes 2002, section 144A.04, is 
  2.25  amended by adding a subdivision to read: 
  2.26     Subd. 11.  [INCONTINENT RESIDENTS.] Notwithstanding 
  2.27  Minnesota Rules, part 4658.0520, an incontinent resident must be 
  2.28  checked according to a specific time interval written in the 
  2.29  resident's care plan.  The resident's attending physician must 
  2.30  authorize in writing any interval longer than two hours unless 
  2.31  the resident, if competent, or a family member or legally 
  2.32  appointed conservator, guardian, or health care agent of a 
  2.33  resident who is not competent, agrees in writing to waive 
  2.34  physician involvement in determining this interval. 
  2.35     <b>[EFFECTIVE DATE.]</b> This section is effective July 1, 2003. 
  2.36     Sec. 3.  Minnesota Statutes 2002, section 144A.10, 
  3.1   subdivision 6b, is amended to read: 
  3.2      Subd. 6b.  [FINES FOR FEDERAL CERTIFICATION DEFICIENCIES.] 
  3.3   If the commissioner determines that a nursing home or certified 
  3.4   boarding care home does not meet a requirement of section 
  3.5   1919(b), (c), or (d), of the Social Security Act, or any 
  3.6   regulation adopted under that section of the Social Security 
  3.7   Act, the nursing home or certified boarding care home may be 
  3.8   assessed a civil fine for each day of noncompliance and until a 
  3.9   notice of correction is received by the commissioner under 
  3.10  subdivision 7.  Money collected because of these fines must be 
  3.11  applied to the protection of the health or property of residents 
  3.12  of nursing facilities the commissioner finds deficient or used 
  3.13  by the commissioner to reimburse the office of administrative 
  3.14  hearings for costs related to arbitration, as provided under 
  3.15  subdivision 16.  A fine for a specific deficiency may not exceed 
  3.16  $500 for each day of noncompliance.  The commissioner shall 
  3.17  adopt rules establishing a schedule of fines.  
  3.18     <b>[EFFECTIVE DATE.]</b> This section is effective July 1, 2003. 
  3.19     Sec. 4.  Minnesota Statutes 2002, section 144A.10, is 
  3.20  amended by adding a subdivision to read: 
  3.21     Subd. 16.  [INDEPENDENT INFORMAL DISPUTE RESOLUTION.] (a) 
  3.22  Notwithstanding subdivision 15, a facility certified under the 
  3.23  federal Medicare or Medicaid programs may request from the 
  3.24  commissioner, in writing, an independent informal dispute 
  3.25  resolution process regarding any deficiency citation issued to 
  3.26  the facility.  The facility must specify in its written request 
  3.27  each deficiency citation that it disputes.  The commissioner 
  3.28  shall provide a hearing under sections 14.57 to 14.62.  Upon the 
  3.29  written request of the facility, the parties must submit the 
  3.30  issues raised to arbitration by an administrative law judge. 
  3.31     (b) Upon receipt of a written request for an arbitration 
  3.32  proceeding, the commissioner shall file with the office of 
  3.33  administrative hearings a request for the appointment of an 
  3.34  arbitrator and simultaneously serve the facility with notice of 
  3.35  the request.  The arbitrator for the dispute shall be an 
  3.36  administrative law judge appointed by the office of 
  4.1   administrative hearings.  The disclosure provisions of section 
  4.2   572.10 and the notice provisions of section 572.12 apply.  The 
  4.3   facility and the commissioner have the right to be represented 
  4.4   by an attorney. 
  4.5      (c) The commissioner and the facility may present written 
  4.6   evidence, depositions, and oral statements and arguments at the 
  4.7   arbitration proceeding.  Oral statements and arguments may be 
  4.8   made by telephone. 
  4.9      (d) Within ten working days of the close of the arbitration 
  4.10  proceeding, the administrative law judge shall issue findings 
  4.11  regarding each of the deficiencies in dispute.  The findings 
  4.12  shall be one or more of the following: 
  4.13     (1) Supported in full.  The citation is supported in full, 
  4.14  with no deletion of findings and no change in the scope or 
  4.15  severity assigned to the deficiency citation. 
  4.16     (2) Supported in substance.  The citation is supported, but 
  4.17  one or more findings are deleted without any change in the scope 
  4.18  or severity assigned to the deficiency. 
  4.19     (3) Deficient practice cited under wrong requirement of 
  4.20  participation.  The citation is amended by moving it to the 
  4.21  correct requirement of participation. 
  4.22     (4) Scope not supported.  The citation is amended through a 
  4.23  change in the scope assigned to the citation. 
  4.24     (5) Severity not supported.  The citation is amended 
  4.25  through a change in the severity assigned to the citation. 
  4.26     (6) No deficient practice.  The citation is deleted because 
  4.27  the findings did not support the citation or the negative 
  4.28  resident outcome was unavoidable.  The findings of the 
  4.29  arbitrator are not binding on the commissioner.  
  4.30     (e) The commissioner shall reimburse the office of 
  4.31  administrative hearings for the costs incurred by that office 
  4.32  for the arbitration proceeding.  The facility shall reimburse 
  4.33  the commissioner for the proportion of the costs that represent 
  4.34  the sum of deficiency citations supported in full under 
  4.35  paragraph (d), clause (1), or in substance under paragraph (d), 
  4.36  clause (2), divided by the total number of deficiencies 
  5.1   disputed.  A deficiency citation for which the administrative 
  5.2   law judge's sole finding is that the deficient practice was 
  5.3   cited under the wrong requirements of participation shall not be 
  5.4   counted in the numerator or denominator in the calculation of 
  5.5   the proportion of costs. 
  5.6      <b>[EFFECTIVE DATE.]</b> This section is effective July 1, 2003. 
  5.7      Sec. 5.  Minnesota Statutes 2002, section 256B.434, 
  5.8   subdivision 10, is amended to read: 
  5.9      Subd. 10.  [EXEMPTIONS.] (a) To the extent permitted by 
  5.10  federal law, (1) a facility that has entered into a contract 
  5.11  under this section is not required to file a cost report, as 
  5.12  defined in Minnesota Rules, part 9549.0020, subpart 13, for any 
  5.13  year after the base year that is the basis for the calculation 
  5.14  of the contract payment rate for the first rate year of the 
  5.15  alternative payment demonstration project contract; and (2) a 
  5.16  facility under contract is not subject to audits of historical 
  5.17  costs or revenues, or paybacks or retroactive adjustments based 
  5.18  on these costs or revenues, except audits, paybacks, or 
  5.19  adjustments relating to the cost report that is the basis for 
  5.20  calculation of the first rate year under the contract. 
  5.21     (b) A facility that is under contract with the commissioner 
  5.22  under this section is not subject to the moratorium on licensure 
  5.23  or certification of new nursing home beds in section 144A.071, 
  5.24  unless the project results in a net increase in bed capacity or 
  5.25  involves relocation of beds from one site to another.  Contract 
  5.26  payment rates must not be adjusted to reflect any additional 
  5.27  costs that a nursing facility incurs as a result of a 
  5.28  construction project undertaken under this paragraph.  In 
  5.29  addition, as a condition of entering into a contract under this 
  5.30  section, a nursing facility must agree that any future medical 
  5.31  assistance payments for nursing facility services will not 
  5.32  reflect any additional costs attributable to the sale of a 
  5.33  nursing facility under this section and to construction 
  5.34  undertaken under this paragraph that otherwise would not be 
  5.35  authorized under the moratorium in section 144A.073.  Nothing in 
  5.36  this section prevents a nursing facility participating in the 
  6.1   alternative payment demonstration project under this section 
  6.2   from seeking approval of an exception to the moratorium through 
  6.3   the process established in section 144A.073, and if approved the 
  6.4   facility's rates shall be adjusted to reflect the cost of the 
  6.5   project.  Nothing in this section prevents a nursing facility 
  6.6   participating in the alternative payment demonstration project 
  6.7   from seeking legislative approval of an exception to the 
  6.8   moratorium under section 144A.071, and, if enacted, the 
  6.9   facility's rates shall be adjusted to reflect the cost of the 
  6.10  project. 
  6.11     (c) Notwithstanding section 256B.48, subdivision 6, 
  6.12  paragraphs (c), (d), and (e), and pursuant to any terms and 
  6.13  conditions contained in the facility's contract, a nursing 
  6.14  facility that is under contract with the commissioner under this 
  6.15  section is in compliance with section 256B.48, subdivision 6, 
  6.16  paragraph (b), if the facility is Medicare certified. 
  6.17     (d) Notwithstanding paragraph (a), if by April 1, 1996, the 
  6.18  health care financing administration has not approved a required 
  6.19  waiver, or the Centers for Medicare and Medicaid Services 
  6.20  otherwise requires cost reports to be filed prior to the 
  6.21  waiver's approval, the commissioner shall require a cost report 
  6.22  for the rate year. 
  6.23     (e) A facility that is under contract with the commissioner 
  6.24  under this section shall be allowed to change therapy 
  6.25  arrangements from an unrelated vendor to a related vendor during 
  6.26  the term of the contract.  The commissioner may develop 
  6.27  reasonable requirements designed to prevent an increase in 
  6.28  therapy utilization for residents enrolled in the medical 
  6.29  assistance program. 
  6.30     (f) Nursing facilities participating in the alternative 
  6.31  payment system demonstration project must either participate in 
  6.32  the alternative payment system quality improvement program or 
  6.33  submit information on their own quality improvement process to 
  6.34  the commissioner for approval.  Nursing facilities that have had 
  6.35  their own quality improvement process approved by the 
  6.36  commissioner must report results for at least one key area of 
  7.1   quality improvement annually to the commissioner.  
  7.2      <b>[EFFECTIVE DATE.]</b> This section is effective July 1, 2003. 
  7.3      Sec. 6.  [IMPOSITION OF FEDERAL CERTIFICATION REMEDIES.] 
  7.4      The commissioner of health shall seek changes in the 
  7.5   federal policy that mandates the imposition of federal sanctions 
  7.6   without providing an opportunity for a nursing facility to 
  7.7   correct deficiencies, solely as the result of previous 
  7.8   deficiencies issued to the nursing facility.  
  7.9      <b>[EFFECTIVE DATE.]</b> This section is effective July 1, 2003. 
  7.10     Sec. 7.  [STATE LICENSURE ACTIVITIES AND THE ISSUANCE OF 
  7.11  STATE CORRECTION ORDERS.] 
  7.12     Notwithstanding the provisions of Minnesota Statutes, 
  7.13  section 144A.10, during the biennium ending June 30, 2005, the 
  7.14  commissioner of health shall not conduct surveys or complaint 
  7.15  investigations, or issue correction orders or penalty 
  7.16  assessments, under the provisions of Minnesota Rules, chapters 
  7.17  4638 and 4655 and parts 4658.0010 to 4658.2090, in nursing homes 
  7.18  or boarding care homes that are certified for participation in 
  7.19  the federal Medicaid or Medicare programs. 
  7.20     During that biennium, the commissioner of health shall 
  7.21  establish a working group consisting of nursing home and 
  7.22  boarding care home providers, representatives of nursing home 
  7.23  residents, and other health care providers to review and 
  7.24  evaluate the continued appropriateness of current survey and 
  7.25  investigation procedures.  The commissioner of health shall 
  7.26  present recommendations to the legislature by January 1, 2005.  
  7.27     <b>[EFFECTIVE DATE.]</b> This section is effective July 1, 2003.