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SF 2412

as introduced - 93rd Legislature (2023 - 2024) Posted on 03/03/2023 09:52am

KEY: stricken = removed, old language.
underscored = added, new language.

Current Version - as introduced

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A bill for an act
relating to health; updating assisted living licensure; amending Minnesota Statutes
2022, sections 144G.10, by adding a subdivision; 144G.12, subdivision 4; 144G.16,
by adding subdivisions; 144G.17; 144G.19, subdivision 2; 144G.20, subdivisions
8, 17; 144G.32, subdivision 2; 144G.41, subdivision 1, by adding a subdivision;
144G.45, subdivision 6, by adding a subdivision; 144G.82, subdivision 2; 144G.90,
by adding a subdivision; Laws 2022, chapter 98, article 1, section 39.

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

Section 1.

Minnesota Statutes 2022, section 144G.10, is amended by adding a subdivision
to read:


new text begin Subd. 5. new text end

new text begin Protected title; restriction on use. new text end

new text begin No person or entity may use the phrase
"assisted living," whether alone or in combination with other words and whether orally or
in writing, to advertise, market, or otherwise describe, offer, or promote itself, or any housing,
service, service package, or program that it provides within this state, unless the person or
entity is a licensed assisted living facility that meets the requirements of this chapter. A
person or entity entitled to use the phrase "assisted living" shall use the phrase only in the
context of its participation that meets the requirements of this chapter.
new text end

Sec. 2.

Minnesota Statutes 2022, section 144G.12, subdivision 4, is amended to read:


Subd. 4.

Fines and penalties.

(a) The penalty for late submission of the renewal
application less than 30 days before the expiration date of the license or after expiration of
the license is $200. The penalty for operating a facility after expiration of the license and
before a renewal license is issued is $250 each day after expiration of the license until the
renewal license deleted text beginissuancedeleted text endnew text begin application submissionnew text end date. The facility is still subject to the
misdemeanor penalties for operating after license expiration.

(b) Fines and penalties collected under this subdivision shall be deposited in a dedicated
special revenue account. On an annual basis, the balance in the special revenue account
shall be appropriated to the commissioner to implement the recommendations of the advisory
council established in section 144A.4799.

Sec. 3.

Minnesota Statutes 2022, section 144G.16, is amended by adding a subdivision to
read:


new text begin Subd. 8. new text end

new text begin Notice to residents. new text end

new text begin (a) Within five business days after proceedings are initiated
by the commissioner to deny a facility's provisional license, the controlling individual of
the facility or a designee must provide to the commissioner and the ombudsman for long-term
care the names of residents and the names and addresses of the residents' designated
representatives and legal representatives, and family or other contacts listed in the assisted
living contract.
new text end

new text begin (b) The controlling individual or designees of the facility must provide updated
information each month until the proceeding is concluded. If the controlling individual or
designee of the facility fails to provide the information within this time, the facility is subject
to the issuance of:
new text end

new text begin (1) a correction order; and
new text end

new text begin (2) a penalty assessment by the commissioner in rule.
new text end

new text begin (c) Any correction order issued under this subdivision must require that the facility
immediately comply with the request for information and that, as of the date of the issuance
of the correction order, the facility shall forfeit to the state a $500 fine the first day of
noncompliance and an increase in the $500 fine by $100 increments for each day the
noncompliance continues.
new text end

new text begin (d) Information provided under this subdivision may be used by the commissioner or
the ombudsman for long-term care only for the purpose of providing affected consumers
information about the status of the proceedings.
new text end

new text begin (e) Within ten business days after the commissioner initiates proceedings to deny a
provisional facility license, the commissioner must send a written notice of the action and
the process involved to each resident of the facility, legal representatives and designated
representatives, and, at the commissioner's discretion, additional resident contacts.
new text end

new text begin (f) The commissioner shall provide the ombudsman for long-term care with monthly
information on the department's actions and the status of the proceedings.
new text end

Sec. 4.

Minnesota Statutes 2022, section 144G.16, is amended by adding a subdivision to
read:


new text begin Subd. 9. new text end

new text begin Plan required. new text end

new text begin (a) The process of denying a provisional license must include
a plan for transferring affected residents' care to other providers by the facility. The
commissioner shall monitor the transfer plan. Within three calendar days of being notified
of the final denial of provisional license action, the licensee shall provide the commissioner,
the lead agencies as defined in section 256B.0911, county adult protection and case managers,
and the ombudsman for long-term care with the following information:
new text end

new text begin (1) a list of all residents, including full names and all contact information on file;
new text end

new text begin (2) a list of the resident's legal representatives and designated representatives and family
or other contacts listed in the assisted living contract, including full names and all contact
information on file;
new text end

new text begin (3) the location or current residence of each resident;
new text end

new text begin (4) the payor sources for each resident, including payor source identification numbers;
and
new text end

new text begin (5) for each resident, a copy of the resident's service plan and a list of the types of services
being provided.
new text end

new text begin (b) The denial of a provisional license notification requirement is satisfied by mailing
the notice to the address in the license record. The licensee shall cooperate with the
commissioner and the lead agencies, county adult protection and case managers, and the
ombudsman for long-term care during the process of transferring care of residents to qualified
providers. Within three calendar days of being notified of the final denial of provisional
license action, the facility must notify and disclose to each of the residents, or the resident's
legal and designated representatives or emergency contact persons, that the commissioner
is taking action against the facility's license by providing a copy of the denial of provisional
license notice issued by the commissioner. If the facility does not comply with the disclosure
requirements in this section, the commissioner shall notify the residents, legal and designated
representatives, or emergency contact persons about the actions being taken. Lead agencies,
county adult protection and case managers, and the Office of Ombudsman for Long-Term
Care may also provide this information. The denial of a provisional license notice is public
data except for any private data contained therein.
new text end

new text begin (c) A facility subject to this subdivision may continue operating while residents are being
transferred to other service providers.
new text end

Sec. 5.

Minnesota Statutes 2022, section 144G.17, is amended to read:


144G.17 LICENSE RENEWAL.

A license that is not a provisional license may be renewed for a period of up to one year
if the licensee:

(1) submits an application for renewal in the format provided by the commissioner at
least 60 calendar days before expiration of the license;

(2) submits the renewal fee under section 144G.12, subdivision 3;

(3) submits the late fee under section 144G.12, subdivision 4, if the renewal application
is received less than deleted text begin30deleted text endnew text begin 60new text end days before the expiration date of the license or after the expiration
of the license;

(4) provides information sufficient to show that the applicant meets the requirements of
licensure, including items required under section 144G.12, subdivision 1;

(5) provides information sufficient to show the licensee provided assisted living services
to at least one resident during the immediately preceding license year and at the assisted
living facility listed on the license; and

(6) provides any other information deemed necessary by the commissioner.

Sec. 6.

Minnesota Statutes 2022, section 144G.19, subdivision 2, is amended to read:


Subd. 2.

New license required.

(a) A prospective licensee must apply for a license prior
to operating a currently licensed assisted living facility. The new license, if issued, shall
not be a provisional license. The licensee must change whenever one of the following events
occur:

(1) the form of the licensee's legal entity structure is converted or changed to a different
type of legal entity structure;

(2) the licensee dissolves, consolidates, or merges with another legal organization and
the licensee's legal organization does not survive;

(3) within the previous 24 months, 50 percent or more of the licensee is transferred,
whether by a single transaction or multiple transactions, to:

(i) a different personnew text begin or multiple personsnew text end; or

(ii) a personnew text begin or multiple different personsnew text end who had less than a five percent ownership
interest in the facility at the time of the first transaction; or

(4) any other event or combination of events that results in a substitution, elimination,
or withdrawal of the licensee's responsibility for the facility.

(b) The prospective licensee must provide written notice to the department at least 60
calendar days prior to the anticipated date of the change of licensee.

Sec. 7.

Minnesota Statutes 2022, section 144G.20, subdivision 8, is amended to read:


Subd. 8.

Controlling individual restrictions.

(a) The commissioner has discretion to
bar any controlling individual of a facility if the person was a controlling individual of any
other nursing home, home care provider licensed under chapter 144A, or given status as an
enrolled personal care assistance provider agency or personal care assistant by the Department
of Human Services under section 256B.0659, or assisted living facility in the previous
two-year period and:

(1) during that period of time the nursing home, home care provider licensed under
chapter 144A, or given status as an enrolled personal care assistance provider agency or
personal care assistant by the Department of Human Services under section 256B.0659, or
assisted living facility incurred the following number of uncorrected or repeated violations:

(i) two or more repeated violations that created an imminent risk to direct resident care
or safety; or

(ii) four or more uncorrected violations that created an imminent risk to direct resident
care or safety; or

(2) during that period of time, was convicted of a felony or gross misdemeanor that
related to the operation of the nursing home, home care provider licensed under chapter
144A, or given status as an enrolled personal care assistance provider agency or personal
care assistant by the Department of Human Services under section 256B.0659, or assisted
living facility, or directly affected resident safety or caredeleted text begin.deleted text endnew text begin; or
new text end

new text begin (3) during that period of time, had a provisional license denied.
new text end

(b) When the commissioner bars a controlling individual under this subdivision, the
controlling individual may appeal the commissioner's decision under chapter 14.

Sec. 8.

Minnesota Statutes 2022, section 144G.20, subdivision 17, is amended to read:


Subd. 17.

Expedited hearing.

(a) Within five business days of receipt of the licensee's
timely appeal of a temporary suspension or issuance deleted text beginof a conditional licensedeleted text end, the
commissioner shall request assignment of an administrative law judge. The request must
include a proposed date, time, and place of a hearing. A hearing must be conducted by an
administrative law judge pursuant to Minnesota Rules, parts 1400.8505 to 1400.8612, within
30 calendar days of the request for assignment, unless an extension is requested by either
party and granted by the administrative law judge for good cause. The commissioner shall
issue a notice of hearing by certified mail or personal service at least ten business days
before the hearing. Certified mail to the last known address is sufficient. The scope of the
hearing shall be limited solely to the issue of whether the temporary suspension or issuance
of a conditional license should remain in effect and whether there is sufficient evidence to
conclude that the licensee's actions or failure to comply with applicable laws are Level 3
or Level 4 violations as defined in section 144G.31, or that there were violations that posed
an imminent risk of harm to the resident's health and safety.

(b) The administrative law judge shall issue findings of fact, conclusions, and a
recommendation within ten business days from the date of hearing. The parties shall have
ten calendar days to submit exceptions to the administrative law judge's report. The record
shall close at the end of the ten-day period for submission of exceptions. The commissioner's
final order shall be issued within ten business days from the close of the record. When an
appeal of a temporary immediate suspension or conditional license is withdrawn or dismissed,
the commissioner shall issue a final order affirming the temporary immediate suspension
or conditional license within ten calendar days of the commissioner's receipt of the
withdrawal or dismissal. The licensee is prohibited from operation during the temporary
suspension period.

(c) When the final order under paragraph (b) affirms an immediate suspension, and a
final licensing sanction is issued under subdivisions 1 and 2 and the licensee appeals that
sanction, the licensee is prohibited from operation pending a final commissioner's order
after the contested case hearing conducted under chapter 14.

(d) A licensee whose license is temporarily suspended must comply with the requirements
for notification and transfer of residents under subdivision 15. These requirements remain
if an appeal is requested.

Sec. 9.

Minnesota Statutes 2022, section 144G.32, subdivision 2, is amended to read:


Subd. 2.

Reconsideration process.

An assisted living facility may request from the
commissioner, in writing, a correction order reconsideration regarding any correction order
issued to the facility. The written request for reconsideration must be received by the
commissioner within 15 deleted text begincalendardeleted text endnew text begin businessnew text end days of the correction order receipt date. The
correction order reconsideration shall not be reviewed by any surveyor, investigator, or
supervisor that participated in writing or reviewing the correction order being disputed. The
correction order reconsiderations may be conducted in person, by telephone, by another
electronic form, or in writing, as determined by the commissioner. The commissioner shall
respond in writing to the request from a facility for a correction order reconsideration within
60 days of the date the facility requests a reconsideration. The commissioner's response
shall identify the commissioner's decision regarding each citation challenged by the facility.

Sec. 10.

Minnesota Statutes 2022, section 144G.41, subdivision 1, is amended to read:


Subdivision 1.

Minimum requirements.

All assisted living facilities shall:

(1) distribute to residents the assisted living bill of rights;

(2) provide services in a manner that complies with the Nurse Practice Act in sections
148.171 to 148.285;

(3) utilize a person-centered planning and service delivery process;

(4) have and maintain a system for delegation of health care activities to unlicensed
personnel by a registered nurse, including supervision and evaluation of the delegated
activities as required by the Nurse Practice Act in sections 148.171 to 148.285;

(5) provide a means for residents to request assistance for health and safety needs 24
hours per day, seven days per week;

(6) allow residents the ability to furnish and decorate the resident's unit within the terms
of the assisted living contract;

(7) permit residents access to food at any time;

(8) allow residents to choose the resident's visitors and times of visits;

(9) allow the resident the right to choose a roommate if sharing a unit;

(10) notify the resident of the resident's right to have and use a lockable door to the
resident's unit. The licensee shall provide the locks on the unit. Only a staff member with
a specific need to enter the unit shall have keys, and advance notice must be given to the
resident before entrance, when possible. An assisted living facility must not lock a resident
in the resident's unit;

(11) develop and implement a staffing plan for determining its staffing level that:

(i) includes an evaluation, to be conducted at least twice a year, of the appropriateness
of staffing levels in the facility;

(ii) ensures sufficient staffing at all times to meet the scheduled and reasonably
foreseeable unscheduled needs of each resident as required by the residents' assessments
and service plans on a 24-hour per day basis; and

(iii) ensures that the facility can respond promptly and effectively to individual resident
emergencies and to emergency, life safety, and disaster situations affecting staff or residents
in the facility;

(12) ensure that one or more persons are available 24 hours per day, seven days per
week, who are responsible for responding to the requests of residents for assistance with
health or safety needs. Such persons must be:

(i) awake;

(ii) located in the same building, in an attached building, or deleted text beginon a contiguous campus
with the facility
deleted text endnew text begin within the licensed assisted living facility campusnew text end in order to respond within
a reasonable amount of time;

(iii) capable of communicating with residents;

(iv) capable of providing or summoning the appropriate assistance; and

(v) capable of following directions;

(13) offer to provide or make available at least the following services to residents:

(i) at least three nutritious meals daily with snacks available seven days per week,
according to the recommended dietary allowances in the United States Department of
Agriculture (USDA) guidelines, including seasonal fresh fruit and fresh vegetables. The
following apply:

(A) menus must be prepared at least one week in advance, and made available to all
residents. The facility must encourage residents' involvement in menu planning. Meal
substitutions must be of similar nutritional value if a resident refuses a food that is served.
Residents must be informed in advance of menu changes;

(B) food must be prepared and served according to the Minnesota Food Code, Minnesota
Rules, chapter 4626; and

(C) the facility cannot require a resident to include and pay for meals in their contract;

(ii) weekly housekeeping;

(iii) weekly laundry service;

(iv) upon the request of the resident, provide direct or reasonable assistance with arranging
for transportation to medical and social services appointments, shopping, and other recreation,
and provide the name of or other identifying information about the persons responsible for
providing this assistance;

(v) upon the request of the resident, provide reasonable assistance with accessing
community resources and social services available in the community, and provide the name
of or other identifying information about persons responsible for providing this assistance;

(vi) provide culturally sensitive programs; and

(vii) have a daily program of social and recreational activities that are based upon
individual and group interests, physical, mental, and psychosocial needs, and that creates
opportunities for active participation in the community at large; and

(14) provide staff access to an on-call registered nurse 24 hours per day, seven days per
week.

Sec. 11.

Minnesota Statutes 2022, section 144G.41, is amended by adding a subdivision
to read:


new text begin Subd. 9. new text end

new text begin Variance or waiver. new text end

new text begin An innovation waiver under section 144G.33 cannot be
granted for variance or waiver from the requirements of section 144G.41, subdivision 1,
clause (12).
new text end

Sec. 12.

Minnesota Statutes 2022, section 144G.45, subdivision 6, is amended to read:


Subd. 6.

New construction; plans.

(a) For all new licensure deleted text beginanddeleted text endnew text begin ornew text end construction
beginning on or after August 1, 2021, the following must be provided to the commissioner:

(1) architectural and engineering plans and specifications for new construction must be
prepared and signed by architects and engineers who are registered in Minnesota. Final
working drawings and specifications for proposed construction must be submitted to the
commissioner for review and approval;

(2) final architectural plans and specifications must include elevations and sections
through the building showing types of construction, and must indicate dimensions and
assignments of rooms and areas, room finishes, door types and hardware, elevations and
details of nurses' work areas, utility rooms, toilet and bathing areas, and large-scale layouts
of dietary and laundry areas. Plans must show the location of fixed equipment and sections
and details of elevators, chutes, and other conveying systems. Fire walls and smoke partitions
must be indicated. The roof plan must show all mechanical installations. The site plan must
indicate the proposed and existing buildings, topography, roadways, walks and utility service
lines; and

(3) final mechanical and electrical plans and specifications must address the complete
layout and type of all installations, systems, and equipment to be provided. Heating plans
must include heating elements, piping, thermostatic controls, pumps, tanks, heat exchangers,
boilers, breeching, and accessories. Ventilation plans must include room air quantities,
ducts, fire and smoke dampers, exhaust fans, humidifiers, and air handling units. Plumbing
plans must include the fixtures and equipment fixture schedule; water supply and circulating
piping, pumps, tanks, riser diagrams, and building drains; the size, location, and elevation
of water and sewer services; and the building fire protection systems. Electrical plans must
include fixtures and equipment, receptacles, switches, power outlets, circuits, power and
light panels, transformers, and service feeders. Plans must show location of nurse call signals,
cable lines, fire alarm stations, and fire detectors and emergency lighting.

(b) Unless construction is begun within one year after approval of the final working
drawing and specifications, the drawings must be resubmitted for review and approval.

(c) The commissioner must be notified within 30 days before completion of construction
so that the commissioner can make arrangements for a final inspection by the commissioner.

(d) At least one set of complete life safety plans, including changes resulting from
remodeling or alterations, must be kept on file in the facility.

Sec. 13.

Minnesota Statutes 2022, section 144G.45, is amended by adding a subdivision
to read:


new text begin Subd. 8. new text end

new text begin Posting survey and investigation results. new text end

new text begin (a) All facilities must post in a
conspicuous and readily accessible place in the facility the results of all survey and
investigation results, including any correction order or orders, required or authorized by
this section or section 626.557 regarding the facility.
new text end

new text begin (b) Facilities shall post a minimum of five years of survey and investigation results,
including correction order or orders, regarding the facility and make the information available
to residents and families or other persons who request it.
new text end

new text begin (c) No survey or investigation results, including any correction order or orders, need to
be posted until all appeals, if the facility requested any, have been completed.
new text end

new text begin (d) All correction orders issued to a facility and operated by the state or political
subdivision of the state shall be circulated and posted at the first public meeting of the
governing body after the order is issued.
new text end

new text begin (e) Confidential information protected by section 13.05 or 13.46 shall not be made
available or posted as provided in this subdivision unless it may be made available or posted
in a manner authorized by chapter 13.
new text end

Sec. 14.

Minnesota Statutes 2022, section 144G.82, subdivision 2, is amended to read:


Subd. 2.

Additional requirements.

(a) The licensee must follow the assisted living
license requirements and the criteria in this section.

(b) The assisted living director of an assisted living facility with dementia care must
complete and document that at least ten hours of the required deleted text beginannualdeleted text end continuing educational
requirementsnew text begin required by section 144A.20, subdivision 4, paragraph (c),new text end relate to the care
of individuals with dementia. The training must include medical management of dementia,
creating and maintaining supportive and therapeutic environments for residents with
dementia, and transitioning and coordinating services for residents with dementia. Continuing
education credits may include college courses, preceptor credits, self-directed activities,
course instructor credits, corporate training, in-service training, professional association
training, web-based training, correspondence courses, telecourses, seminars, and workshops.

Sec. 15.

Minnesota Statutes 2022, section 144G.90, is amended by adding a subdivision
to read:


new text begin Subd. 7. new text end

new text begin Notice to residents; change in uniform checklist disclosure of services. new text end

new text begin A
facility must provide written notice to the resident, legal representative, or designated
representative of a change of information contained within its uniform checklist disclosure
of services within seven calendar days after the facility changes its uniform checklist
disclosure of services.
new text end

Sec. 16.

Laws 2022, chapter 98, article 1, section 39, the effective date, is amended to
read:


EFFECTIVE DATE.

This section is effective new text beginretroactively from new text endAugust 1, deleted text begin2022deleted text endnew text begin 2021new text end,
and applies to assisted living contracts executed on or after deleted text beginthat datedeleted text endnew text begin August 1, 2021new text end.

Sec. 17. new text beginREVISOR INSTRUCTION.
new text end

new text begin The revisor of statutes shall substitute the term "employee" with the term "staff" in the
following sections and make any grammatical changes needed:
new text end

new text begin 144G.08, subdivision 18; 144G.13, subdivision 1, paragraph (c); 144G.20, subdivision
1; 144G.20, subdivision 21; 144G.30, subdivision 5; 144G.42, subdivision 8; 144G.45,
subdivision 2; 144G.60, subdivision 1, paragraph (c); 144G.63, subdivision 2, paragraph
(a), clause (9); 144G.64, paragraph (a), clauses (2) and (3); 144G.70, subdivision 7; 144G.92,
subdivisions 1 and 3.
new text end