HF 4124

as introduced - 90th Legislature (2017 - 2018) Posted on 03/21/2018 12:02pm

A bill for an act
relating to health; changing provisions to enforcement of the health care bill of
rights; changing provisions to maltreatment of vulnerable adults; amending
Minnesota Statutes 2016, sections 144A.44; 573.02, subdivision 2; 626.557,
subdivision 17; proposing coding for new law in Minnesota Statutes, chapter 144.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [144.6512] ENFORCEMENT OF THE HEALTH CARE BILL OF RIGHTS.
new text end

new text begin In addition to the remedies otherwise provided by or available under law, a patient or
resident, or an interested person on behalf of the patient or resident, may bring a civil action
against a facility to recover actual, incidental, and consequential damages or $5,000,
whichever is greater, costs and disbursements, including costs of investigation, and reasonable
attorney fees, and receive other equitable relief as determined by the court for a violation
of sections 144.6501, subdivision 2, or 144.651 and 144.6511.
new text end

Sec. 2.

Minnesota Statutes 2016, section 144A.44, is amended to read:

144A.44 HOME CARE BILL OF RIGHTS.

Subdivision 1.

Statement of rights.

new text begin (a) All home care providers, and individuals or
organizations exempt from home care licensure by section 144A.471, subdivision 8, must
comply with this section. new text end A person who receives home care services has deleted text begin these rights deleted text end new text begin the
right to new text end :

(1) deleted text begin the right to deleted text end receive written information about rights before receiving services,
including what to do if rights are violated;

(2) deleted text begin the right to deleted text end receive care and services according to a suitable and up-to-date plan, and
subject to accepted health care, medical or nursing standards, to take an active part in
developing, modifying, and evaluating the plan and services;

(3) deleted text begin the right to deleted text end be told before receiving services the type and disciplines of staff who
will be providing the services, the frequency of visits proposed to be furnished, other choices
that are available for addressing home care needs, and the potential consequences of refusing
these services;

(4) deleted text begin the right to deleted text end be told in advance of any recommended changes by the provider in the
service plan and to take an active part in any decisions about changes to the service plan;

(5) deleted text begin the right to deleted text end refuse services or treatment;

(6) deleted text begin the right to deleted text end know, before receiving services or during the initial visit, any limits to
the services available from a home care provider;

(7) deleted text begin the right to deleted text end be told before services are initiated what the provider charges for the
services; to what extent payment may be expected from health insurance, public programs,
or other sources, if known; and what charges the client may be responsible for paying;

(8) deleted text begin the right to deleted text end know that there may be other services available in the community,
including other home care services and providers, and to know where to find information
about these services;

(9) deleted text begin the right to deleted text end choose freely among available providers and to change providers after
services have begun, within the limits of health insurance, long-term care insurance, medical
assistance, or other health programs;

(10) deleted text begin the right to deleted text end have personal, financial, and medical information kept private, and to
be advised of the provider's policies and procedures regarding disclosure of such information;

(11) deleted text begin the right to deleted text end access the client's own records and written information from those
records in accordance with sections 144.291 to 144.298;

(12) deleted text begin the right to deleted text end be served by people who are properly trained and competent to perform
their duties;

(13) deleted text begin the right to deleted text end be treated with courtesy and respect, and to have the client's property
treated with respect;

(14) deleted text begin the right to deleted text end be free from physical and verbal abuse, neglect, financial exploitation,
and all forms of maltreatment covered under the Vulnerable Adults Act and the Maltreatment
of Minors Act;

(15) deleted text begin the right to deleted text end reasonable, advance notice of changes in services or charges;

(16) deleted text begin the right to deleted text end know the provider's reason for termination of services;

(17) deleted text begin the right to deleted text end at least deleted text begin ten deleted text end new text begin 30 new text end days' advance notice of the termination of a service by a
provider, except in cases where:

(i) the client engages in conduct that significantly alters the terms of the service plan
with the home care provider;

(ii) the client, person who lives with the client, or others create an abusive or unsafe
work environment for the person providing home care services; or

(iii) an emergency or a significant change in the client's condition has resulted in service
needs that exceed the current service plan and that cannot be safely met by the home care
provider;

(18) deleted text begin the right to deleted text end a coordinated transfer when there will be a change in the provider of
services;

(19) deleted text begin the right to deleted text end complain about services that are provided, or fail to be provided, and
the lack of courtesy or respect to the client or the client's property;

(20) deleted text begin the right to deleted text end know how to contact an individual associated with the home care provider
who is responsible for handling problems and to have the home care provider investigate
and attempt to resolve the grievance or complaint;

(21) deleted text begin the right to deleted text end know the name and address of the state or county agency to contact for
additional information or assistance; deleted text begin and
deleted text end

(22) deleted text begin the right to deleted text end assert these rights personally, or have them asserted by the client's
representative or by anyone on behalf of the client, without retaliation deleted text begin . deleted text end new text begin ; and
new text end

new text begin (23) reasonable access at reasonable times to available legal or advocacy services so
that the client may receive assistance in understanding, exercising, and protecting the rights
in this section and other law.
new text end

new text begin (b) A home care provider shall:
new text end

new text begin (1) encourage and assist in the fullest possible exercise of these rights;
new text end

new text begin (2) provide the names and telephone numbers of individuals and organizations that
provide advocacy and legal services for clients;
new text end

new text begin (3) make every effort to assist clients in obtaining information regarding whether the
Medicare or medical assistance program will pay for services;
new text end

new text begin (4) make reasonable accommodations for people who have communication disabilities
and those who speak a language other than English; and
new text end

new text begin (5) provide all information and notices in plain language and in terms the client can
understand.
new text end

Subd. 2.

Interpretation and enforcement of rights.

deleted text begin These rights are established for
the benefit of clients who receive home care services. All home care providers, including
those exempted under section 144A.471, must comply with this section. The commissioner
shall enforce this section and the home care bill of rights requirement against home care
providers exempt from licensure in the same manner as for licensees. A home care provider
may not request or require a client to surrender any of these rights as a condition of receiving
services. This statement of deleted text end new text begin The new text end rights deleted text begin does deleted text end new text begin provided under this section are established for
the benefit of clients who receive home care services, do new text end not replace or diminish other rights
and liberties that may exist relative to clients receiving home care services, persons providing
home care services, or providers licensed under sections 144A.43 to 144A.482 new text begin , and may
not be waived. Any oral or written waiver of the rights provided under this section is void
and unenforceable new text end .

new text begin Subd. 3. new text end

new text begin Deceptive marketing and business practices. new text end

new text begin (a) Deceptive marketing and
business practices are prohibited.
new text end

new text begin (b) For the purposes of this section, it is a deceptive marketing and business practice to:
new text end

new text begin (1) engage in any conduct listed in section 144.6511;
new text end

new text begin (2) seek or collect a nonrefundable deposit, unless the deposit is applied to the first
month's charges;
new text end

new text begin (3) fail to disclose and clearly explain the purpose of a nonrefundable community fee
or other fee prior to contracting for services with a client; or
new text end

new text begin (4) make any oral or written statement or representation, either directly or in marketing
or advertising materials that contradict, conflict with, or otherwise are inconsistent with the
provisions set forth in the admissions agreement, service agreement, contract, lease, or
Uniform Consumer Information Guide under section 144G.06.
new text end

new text begin Subd. 4. new text end

new text begin Enforcement of rights. new text end

new text begin The commissioner shall enforce this section and the
requirements in the home care bill of rights against home care providers exempt from
licensure in the same manner as for licensees.
new text end

new text begin Subd. 5. new text end

new text begin Private enforcement of rights. new text end

new text begin In addition to the remedies otherwise available
under law, a person who receives home care services, an assisted living client, or an interested
person on behalf of the person who receives home care services may bring a civil action
against a home care provider and recover actual, incidental, and consequential damages or
$5,000, whichever is greater, costs and disbursements, including costs of investigation, and
reasonable attorney fees, and receive other equitable relief as determined by the court for
a violation of this section or section 144A.441. For purposes of this section, an interested
person has the meaning given in section 144.651, subdivision 2, except that an interested
person does not include a person whose authority has been restricted by the person receiving
home care services or assisted living, or by a court.
new text end

Sec. 3.

Minnesota Statutes 2016, section 573.02, subdivision 2, is amended to read:

Subd. 2.

Injury action.

new text begin (a) new text end When injury is caused to a person by the wrongful act or
omission of any person or corporation and the person thereafter dies from a cause unrelated
to those injuries, the trustee appointed in subdivision 3 may maintain an action for special
damages arising out of such injury if the decedent might have maintained an action therefor
had the decedent lived.

new text begin (b) When the injury is caused to a person who was a vulnerable adult, prior to the injury,
the next of kin may maintain an action on behalf of the decedent for damages for pain and
suffering, in addition to special damages as provided under paragraph (a). For purposes of
this paragraph, "vulnerable adult" has the meaning given in section 626.5572, subdivision
21.
new text end

Sec. 4.

Minnesota Statutes 2016, section 626.557, subdivision 17, is amended to read:

Subd. 17.

Retaliation prohibited.

(a) A facility or person shall not retaliate against any
person new text begin , including an interested person or an agent of the vulnerable adult, new text end who reports in
good faith new text begin , or who the facility or person believes reported, new text end suspected maltreatment pursuant
to this section, or against a vulnerable adult with respect to whom a report is made, because
of the report new text begin or presumed report, whether mandatory or voluntary new text end .

(b) In addition to any remedies allowed under sections 181.931 to 181.935, any facility
or person which retaliates against any person because of a report of suspected maltreatment
is liable to that person for actual damages, punitive damages up to $10,000, and attorney
fees. new text begin A claim of retaliation may be brought upon showing that the claimant has a good faith
reason to believe retaliation as described under this subdivision occurred. The claim may
be brought regardless of whether or not there is confirmation that the name of the mandated
reporter was known.
new text end

(c) There shall be a rebuttable presumption that any adverse action, as defined below,
within 90 days of a report, is retaliatory. For purposes of this deleted text begin clause deleted text end new text begin paragraph new text end , the term
"adverse action" refers to action taken by a facility or person involved in a report against
the person making the report or the person with respect to whom the report was made because
of the report, and includes, but is not limited to:

(1) discharge or transfer from the facility;

(2) discharge from or termination of employment;

(3) demotion or reduction in remuneration for services;

(4) restriction or prohibition of access new text begin of the vulnerable adult new text end to the facility or its residents;
deleted text begin or
deleted text end

(5) any restriction of rights set forth in section 144.651 deleted text begin . deleted text end new text begin ;
new text end

new text begin (6) any restriction of access to or use of amenities or services;
new text end

new text begin (7) termination of services or lease agreement;
new text end

new text begin (8) sudden increase in costs for services not already contemplated at the time of the
maltreatment report;
new text end

new text begin (9) removal, tampering with, or deprivation of technology, communication, or electronic
monitoring devices; and
new text end

new text begin (10) filing a maltreatment report in bad faith against the reporter; or
new text end

new text begin (11) oral or written communication of false information about the reporter.
new text end