SF 5391

as introduced - 93rd Legislature (2023 - 2024) Posted on 04/16/2024 09:38am

A bill for an act
relating to public policy; modifying electronic monitoring requirements; establishing
private enforcement of certain rights; modifying the hospice bill of rights;
expanding membership of the licensed home care provider advisory council;
modifying enforcement of assisted living facility licensing; modifying medication
management in assisted living facilities; modifying powers of health care agents;
modifying guardianship provisions; amending Minnesota Statutes 2022, sections
144.6502, subdivision 3; 144.6512, by adding a subdivision; 144.652, by adding
a subdivision; 144A.13, by adding a subdivision; 144A.4799, subdivision 1;
144A.751, subdivision 1; 144G.08, by adding a subdivision; 144G.30, subdivisions
4, 5; 144G.71, subdivisions 2, 3, 5; 144G.92, by adding a subdivision; 145C.07,
subdivision 5, by adding a subdivision; 524.5-120; 524.5-311; 573.02, subdivision
3; proposing coding for new law in Minnesota Statutes, chapter 144G.

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

Section 1.

Minnesota Statutes 2022, section 144.6502, subdivision 3, is amended to read:

Subd. 3.

Consent to electronic monitoring.

(a) Except as otherwise provided in this
subdivision, a resident must consent to electronic monitoring in the resident's room or private
living unit in writing on a notification and consent form. If the resident has not affirmatively
objected to electronic monitoring and new text begin the resident representative attests that new text end the resident's
medical professional deleted text begin determines deleted text end new text begin determined new text end that the resident currently lacks the ability to
understand and appreciate the nature and consequences of electronic monitoring, the resident
representative may consent on behalf of the resident. For purposes of this subdivision, a
resident affirmatively objects when the resident orally, visually, or through the use of
auxiliary aids or services declines electronic monitoring. The resident's response must be
documented on the notification and consent form.

(b) Prior to a resident representative consenting on behalf of a resident, the resident must
be asked if the resident wants electronic monitoring to be conducted. The resident
representative must explain to the resident:

(1) the type of electronic monitoring device to be used;

(2) the standard conditions that may be placed on the electronic monitoring device's use,
including those listed in subdivision 6;

(3) with whom the recording may be shared under subdivision 10 or 11; and

(4) the resident's ability to decline all recording.

(c) A resident, or resident representative when consenting on behalf of the resident, may
consent to electronic monitoring with any conditions of the resident's or resident
representative's choosing, including the list of standard conditions provided in subdivision
6. A resident, or resident representative when consenting on behalf of the resident, may
request that the electronic monitoring device be turned off or the visual or audio recording
component of the electronic monitoring device be blocked at any time.

(d) Prior to implementing electronic monitoring, a resident, or resident representative
when acting on behalf of the resident, must obtain the written consent on the notification
and consent form of any other resident residing in the shared room or shared private living
unit. A roommate's or roommate's resident representative's written consent must comply
with the requirements of paragraphs (a) to (c). Consent by a roommate or a roommate's
resident representative under this paragraph authorizes the resident's use of any recording
obtained under this section, as provided under subdivision 10 or 11.

(e) Any resident conducting electronic monitoring must immediately remove or disable
an electronic monitoring device prior to a new roommate moving into a shared room or
shared private living unit, unless the resident obtains the roommate's or roommate's resident
representative's written consent as provided under paragraph (d) prior to the roommate
moving into the shared room or shared private living unit. Upon obtaining the new
roommate's signed notification and consent form and submitting the form to the facility as
required under subdivision 5, the resident may resume electronic monitoring.

(f) The resident or roommate, or the resident representative or roommate's resident
representative if the representative is consenting on behalf of the resident or roommate, may
withdraw consent at any time and the withdrawal of consent must be documented on the
original consent form as provided under subdivision 5, paragraph (d).

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 2.

Minnesota Statutes 2022, section 144.6512, is amended by adding a subdivision
to read:

new text begin Subd. 7. new text end

new text begin Cause of action for retaliation; damages. new text end

new text begin In addition to the remedies otherwise
provided by or available under law, a resident or an interested person on behalf of a resident
may bring an action against a nursing home for retaliation as outlined in this section, and
if prevailing on such an action, recover up to $3,000 for costs and reasonable attorney fees,
and receive other equitable relief as determined by the court.
new text end

Sec. 3.

Minnesota Statutes 2022, section 144.652, is amended by adding a subdivision to
read:

new text begin Subd. 3. new text end

new text begin Enforcement of the health care bill of rights by nursing home residents. new text end

new text begin In
addition to the remedies otherwise provided by or available under law, a resident of a nursing
home or a legal representative on behalf of a resident, in addition to seeking any remedy
otherwise available under law, may bring a civil action against a nursing home to enforce
section 144.651, subdivision 14, 20, 22, 26, 30, or 33, and if prevailing on such an action,
recover up to $3,000 for costs and reasonable attorney fees, and receive other equitable
relief as determined by the court.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 4.

Minnesota Statutes 2022, section 144A.13, is amended by adding a subdivision to
read:

new text begin Subd. 3. new text end

new text begin Antiretaliation training required. new text end

new text begin All employees of a nursing home must
participate in annual training on preventing retaliation prohibited under section 144.6512.
new text end

Sec. 5.

Minnesota Statutes 2022, section 144A.4799, subdivision 1, is amended to read:

Subdivision 1.

Membership.

The commissioner of health shall appoint deleted text begin 13 deleted text end new text begin 14 new text end persons
to a home care and assisted living program advisory council consisting of the following:

(1) two public members as defined in section 214.02 who shall be persons who are
currently receiving home care services, persons who have received home care services
deleted text begin within five years of the application date deleted text end , persons who have family members receiving home
care services, or persons who have family members who have received home care services
deleted text begin within five years of the application date deleted text end ;

(2) two Minnesota home care licensees representing basic and comprehensive levels of
licensure who may be a managerial official, an administrator, a supervising registered nurse,
or an unlicensed personnel performing home care tasks;

(3) one member representing the Minnesota Board of Nursing;

(4) one member representing the Office of Ombudsman for Long-Term Care;

(5) one member representing the Office of Ombudsman for Mental Health and
Developmental Disabilities;

(6) beginning July 1, 2021, one member of a county health and human services or county
adult protection office;

(7) two Minnesota assisted living facility licensees representing assisted living facilities
and assisted living facilities with dementia care levels of licensure who may be the facility's
assisted living director, managerial official, or clinical nurse supervisor;

(8) one organization representing long-term care providers, home care providers, and
assisted living providers in Minnesota; deleted text begin and
deleted text end

(9) two public members as defined in section 214.02. One public member shall be a
person who either is or has been a resident in an assisted living facility and one public
member shall be a person who has or had a family member living in an assisted living
facility setting deleted text begin . deleted text end new text begin ; and
new text end

new text begin (10) one member from a nonprofit advocacy organization for adults receiving home care
and care in assisted living facilities.
new text end

Sec. 6.

Minnesota Statutes 2022, section 144A.751, subdivision 1, is amended to read:

Subdivision 1.

Statement of rights.

An individual who receives hospice care has the
right to:

(1) receive written information about rights in advance of receiving hospice care or
during the initial evaluation visit before the initiation of hospice care, including what to do
if rights are violated;

(2) receive care and services according to a suitable hospice plan of care and subject to
accepted hospice care standards and to take an active part in creating and changing the plan
and evaluating care and services;

(3) be told in advance of receiving care about the services that will be provided, the
disciplines that will furnish care, the frequency of visits proposed to be furnished, other
choices that are available, and the consequence of these choices, including the consequences
of refusing these services;

(4) be told in advance, whenever possible, of any change in the hospice plan of care and
to take an active part in any change;

(5) refuse services or treatment;

(6) know, in advance, any limits to the services available from a provider, and the
provider's grounds for a termination of services;

(7) know in advance of receiving care whether the hospice services may be covered by
health insurance, medical assistance, Medicare, or other health programs in which the
individual is enrolled;

(8) receive, upon request, a good faith estimate of the reimbursement the provider expects
to receive from the health plan company in which the individual is enrolled. A good faith
estimate must also be made available at the request of an individual who is not enrolled in
a health plan company. This payment information does not constitute a legally binding
estimate of the cost of services;

(9) know that there may be other services available in the community, including other
end of life services and other hospice providers, and know where to go for information
about these services;

(10) choose freely among available providers and change providers after services have
begun, within the limits of health insurance, medical assistance, Medicare, or other health
programs;

(11) have personal, financial, and medical information kept private and be advised of
the provider's policies and procedures regarding disclosure of such information;

(12) be allowed access to records and written information from records according to
sections 144.291 to 144.298;

(13) be served by people who are properly trained and competent to perform their duties;

(14) be treated with courtesy and respect and to have the patient's property treated with
respect;

(15) voice grievances regarding treatment or care that is, or fails to be, furnished or
regarding the lack of courtesy or respect to the patient or the patient's property;

(16) be free from physical and verbal abuse;

(17) reasonable, advance notice of changes in services or charges, including at least ten
days' advance notice of the termination of a service by a provider, except in cases where:

(i) the recipient of services engages in conduct that alters the conditions of employment
between the hospice provider and the individual providing hospice services, or creates an
abusive or unsafe work environment for the individual providing hospice services;

(ii) an emergency for the informal caregiver or a significant change in the recipient's
condition has resulted in service needs that exceed the current service provider agreement
and that cannot be safely met by the hospice provider; or

(iii) the recipient is no longer certified as terminally ill;

(18) a coordinated transfer when there will be a change in the provider of services;

(19) know how to contact an individual associated with the provider who is responsible
for handling problems and to have the provider investigate and attempt to resolve the
grievance or complaint;

(20) know the name and address of the state or county agency to contact for additional
information or assistance;

(21) assert these rights personally, or have them asserted by the hospice patient's family
when the patient has been judged incompetent, without retaliation; deleted text begin and
deleted text end

(22) have pain and symptoms managed to the patient's desired level of comfort deleted text begin . deleted text end new text begin , including
ensuring appropriate pain medications are immediately available to the patient;
new text end

new text begin (23) revoke hospice election at any time; and
new text end

new text begin (24) receive curative treatment for any condition unrelated to the condition that qualified
the individual for hospice while remaining on hospice election.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 7.

Minnesota Statutes 2022, section 144G.08, is amended by adding a subdivision to
read:

new text begin Subd. 55a. new text end

new text begin Registered nurse. new text end

new text begin "Registered nurse" has the meaning given in section
148.171, subdivision 20.
new text end

Sec. 8.

Minnesota Statutes 2022, section 144G.30, subdivision 4, is amended to read:

Subd. 4.

Information provided by facility.

(a) The assisted living facility shall provide
accurate and truthful information to the department during a survey, investigation, or other
licensing activities. new text begin Notwithstanding section 144G.31, the commissioner shall impose a fine
upon an assisted living facility found to have provided inaccurate or untruthful information.
new text end

(b) Upon request of a surveyor, assisted living facilities shall within a reasonable period
of time provide a list of current and past residents and their legal representatives and
designated representatives that includes addresses and telephone numbers and any other
information requested about the services to residents.

Sec. 9.

Minnesota Statutes 2022, section 144G.30, subdivision 5, is amended to read:

Subd. 5.

Correction orders.

(a) A correction order deleted text begin may deleted text end new text begin must new text end be issued whenever the
commissioner finds upon survey or during a complaint investigation that a facility, a
managerial official, an agent of the facility, or an employee of the facility is not in compliance
with this chapter. The correction order shall cite the specific statute and document areas of
noncompliance and the time allowed for correction.

(b) The commissioner shall mail or email copies of any correction order to the facility
within 30 calendar days after the survey exit date. A copy of each correction order and
copies of any documentation supplied to the commissioner shall be kept on file by the
facility and public documents shall be made available for viewing by any person upon
request. Copies may be kept electronically.

(c) By the correction order date, the facility must document in the facility's records any
action taken to comply with the correction order. The commissioner deleted text begin may deleted text end new text begin must new text end request a
copy of this documentation and the facility's action to respond to the correction order in
future surveys, upon a complaint investigation, deleted text begin and as deleted text end new text begin or new text end otherwise deleted text begin needed deleted text end .

Sec. 10.

Minnesota Statutes 2022, section 144G.71, subdivision 2, is amended to read:

Subd. 2.

Provision of medication management services.

(a) For each resident who
requests medication management services, the facility shall, prior to providing medication
management services, have a registered nurse deleted text begin , licensed health professional, or authorized
prescriber under section 151.37 deleted text end conduct an assessment to determine what medication
management services will be provided and how the services will be provided. This assessment
must be conducted face-to-face with the resident. The assessment must include an
identification and review of all medications the resident is known to be taking. The review
and identification must include indications for medications, side effects, contraindications,
allergic or adverse reactions, and actions to address these issues.

(b) The assessment must identify interventions needed in management of medications
to prevent diversion of medication by the resident or others who may have access to the
medications and provide instructions to the resident and legal or designated representatives
on interventions to manage the resident's medications and prevent diversion of medications.
For purposes of this section, "diversion of medication" means misuse, theft, or illegal or
improper disposition of medications.

Sec. 11.

Minnesota Statutes 2022, section 144G.71, subdivision 3, is amended to read:

Subd. 3.

Individualized medication monitoring and reassessment.

deleted text begin The assisted living
facility deleted text end new text begin A registered nurse new text end must monitor and reassess the resident's medication management
services as needed under subdivision 2 when the resident presents with symptoms or other
issues that may be medication-related deleted text begin and, at a minimum, annually deleted text end new text begin , including assessments
and reassessments pursuant to section 144G.70 new text end .

Sec. 12.

Minnesota Statutes 2022, section 144G.71, subdivision 5, is amended to read:

Subd. 5.

Individualized medication management plan.

(a) For each resident receiving new text begin
individualized new text end medication management services, deleted text begin the assisted living facility deleted text end new text begin a registered
nurse new text end must prepare and include in the service plan a written statement of the medication
management services that will be provided to the resident. The deleted text begin facility deleted text end new text begin registered nurse new text end must
develop and maintain a current individualized medication management record for each
resident based on the resident's assessment that must contain the following:

(1) a statement describing the medication management services that will be provided;

(2) a description of storage of medications based on the resident's needs and preferences,
risk of diversion, and consistent with the manufacturer's directions;

(3) documentation of specific resident instructions relating to the administration of
medications;

(4) identification of persons responsible for monitoring medication supplies and ensuring
that medication refills are ordered on a timely basis;

(5) identification of medication management tasks that may be delegated to unlicensed
personnel;

(6) procedures for staff notifying a registered nurse or appropriate licensed health
professional when a problem arises with medication management services; and

(7) any resident-specific requirements relating to documenting medication administration,
verifications that all medications are administered as prescribed, and monitoring of
medication use to prevent possible complications or adverse reactions.

(b) The medication management record must be current and updated when there are any
changes.

(c) Medication reconciliation must be completed when a licensed nurse, licensed health
professional, or authorized prescriber is providing medication management.

Sec. 13.

new text begin [144G.9103] ENFORCEMENT OF RIGHTS.
new text end

new text begin In addition to the remedies otherwise provided by or available under law, a resident or
resident's designated representative may bring a civil action against an assisted living
establishment to enforce section 144G.91, subdivision 6, 8, 12, 20, 21, or 22, and if prevailing
on such an action, recover up to $3,000 for costs and reasonable attorney fees, and receive
other equitable relief as determined by the court.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2023.
new text end

Sec. 14.

Minnesota Statutes 2022, section 144G.92, is amended by adding a subdivision
to read:

new text begin Subd. 6. new text end

new text begin Cause of action for retaliation; damages. new text end

new text begin In addition to the remedies otherwise
provided by or available under law, a resident or an interested person on behalf of a resident
may bring an action against an assisted living facility for retaliation as outlined in this
section, and if prevailing on such an action, recover up to $3,000 for costs and reasonable
attorney fees, and receive other equitable relief as determined by the court.
new text end

Sec. 15.

Minnesota Statutes 2022, section 145C.07, subdivision 5, is amended to read:

Subd. 5.

deleted text begin Visitation deleted text end new text begin Visits by health care agent new text end .

A health care agent may visit the
principal when the principal is a patient in a health care facility regardless of whether the
principal retains decision-making capacity, unless:

(1) the principal has otherwise specified in the health care directive;

(2) a principal who retains decision-making capacity indicates otherwise; or

(3) a health care provider reasonably determines that the principal must be isolated from
all visitors or that the presence of the health care agent would endanger the health or safety
of the principal, other patients, or the facility in which the care is being provided.

Sec. 16.

Minnesota Statutes 2022, section 145C.07, is amended by adding a subdivision
to read:

new text begin Subd. 6. new text end

new text begin Visits by others. new text end

new text begin A health care agent must not restrict the ability of the principal
to communicate, visit, or interact with others, unless the health care agent has good cause
to believe restriction is necessary because interaction with the person poses a risk of
significant physical, psychological, or financial harm to the principal, and there is no other
means to avoid such significant harm. Restricting the ability of the principal to communicate,
visit, or interact with others includes preventing the principal from receiving visitors,
participating in social activities, making or receiving telephone calls, sending or receiving
personal mail, sending or receiving electronic communications, including through social
media. Notwithstanding section 145C.10, paragraph (c), restrictions not made according to
this subdivision carry no presumption that the health care agent is acting in good faith.
new text end

Sec. 17.

Minnesota Statutes 2022, section 524.5-120, is amended to read:

524.5-120 BILL OF RIGHTS FOR PERSONS SUBJECT TO GUARDIANSHIP
OR CONSERVATORSHIP.

The person subject to guardianship or person subject to conservatorship retains all rights
not restricted by court order and these rights must be enforced by the court. These rights
include the right to:

(1) treatment with dignity and respect;

(2) due consideration of current and previously stated personal desires and preferences,
including but not limited to medical treatment preferences, cultural practices, religious
beliefs, and other preferences and opinions in decisions made by the guardian or conservator;

(3) participate in decision making about and receive timely and appropriate health care
and medical treatment that does not violate known preferences or conscientious, religious,
or moral beliefs of the person subject to guardianship or person subject to conservatorship;

(4) exercise control of all aspects of life unless delegated specifically to the guardian or
conservator by court order;

(5) guardianship or conservatorship services individually suited to the conditions and
needs of the person subject to guardianship or the person subject to conservatorship;

(6) petition the court to prevent or initiate a change in abode;

(7) care, comfort, social and recreational needs, employment and employment supports,
training, education, habilitation, and rehabilitation care and services, within available
resources;

(8) be consulted concerning, and to decide to the extent possible, the reasonable care
and disposition of the clothing, furniture, vehicles, and other personal property and effects
of the person subject to guardianship or person subject to conservatorship, to object to the
disposition of personal property and effects, and to petition the court for a review of the
guardian's or conservator's proposed disposition;

(9) personal privacy;

(10) communicate, visit, or interact with others, including receiving visitors or making
or receiving telephone calls, personal mail, or electronic communications including through
social media, or participating in social activities deleted text begin , unless deleted text end new text begin . If new text end the guardian has good cause to
believe restriction is necessary because interaction with the person poses a risk of significant
physical, psychological, or financial harm to the person subject to guardianship, and there
is no other means to avoid the significant harm new text begin , the court may order restriction of such
visitation, to the extent necessary to prevent such significant harm, upon a written petition
by the guardian supporting that the criteria for restriction are met new text end . In all cases, the guardian
shall provide written notice of the restrictions imposed deleted text begin to the court deleted text end , to the person subject
to guardianship, and to the person subject to restrictions. The person subject to guardianship
or the person subject to restrictions may petition the court to remove or modify the
restrictions;

(11) marry and procreate, unless court approval is required;

(12) elect or object to sterilization as provided in section 524.5-313, paragraph (c), clause
(4), item (iv);

(13) at any time, petition the court for termination or modification of the guardianship
or conservatorship, and any decisions made by the guardian or conservator in relation to
powers granted, or for other appropriate relief;

(14) be represented by an attorney in any proceeding or for the purpose of petitioning
the court;

(15) vote, unless restricted by the court;

(16) be consulted concerning, and make decisions to the extent possible, about personal
image and name, unless restricted by the court; and

(17) execute a health care directive, including both health care instructions and the
appointment of a health care agent, if the court has not granted a guardian any of the powers
or duties under section 524.5-313, paragraph (c), clause (1), (2), or (4).

Sec. 18.

Minnesota Statutes 2022, section 524.5-311, is amended to read:

524.5-311 EMERGENCY GUARDIAN.

(a) If the court finds that compliance with the procedures of this article will likely result
in substantial harm to the respondent's health, safety, or welfare, and that no other person
appears to have authority and willingness to act in the circumstances, the court, on petition
by a person interested in the respondent's welfare, may appoint an emergency guardian
whose authority may not exceed 60 days and who may exercise only the powers specified
in the order. A county that is acting under section 626.557, subdivision 10, by petitioning
for appointment of an emergency guardian on behalf of a vulnerable adult may be granted
authority to act for a period not to exceed 90 days. An emergency guardian's appointment
under this section may only be extended once for a period not to exceed 60 days if the court
finds good cause for the continuation of the guardianship. Immediately upon receipt of the
petition for an emergency guardianship, the court shall appoint a lawyer to represent the
respondent in the proceeding. deleted text begin Except as otherwise provided in paragraph (b), deleted text end Reasonable
notice of the time and place of a hearing on the petition must be given to the respondent new text begin , to
interested persons, new text end and any other persons as the court directs.

deleted text begin (b) An emergency guardian may be appointed without notice to the respondent and the
respondent's lawyer only if the court finds from affidavit or other sworn testimony that the
respondent will be substantially harmed before a hearing on the appointment can be held.
If the court appoints an emergency guardian without notice to the respondent, the respondent
must be given notice of the appointment within 48 hours after the appointment. The court
shall hold a hearing on the appropriateness of the appointment within five days after the
appointment.
deleted text end

deleted text begin (c) deleted text end new text begin (b) new text end Appointment of an emergency guardian deleted text begin , with or without notice, deleted text end is not a
determination of the respondent's incapacity.

deleted text begin (d) deleted text end new text begin (c) new text end The court may remove an emergency guardian at any time. An emergency guardian
shall make any report the court requires. In other respects, the provisions of this article
concerning guardians apply to an emergency guardian.

deleted text begin (e) deleted text end new text begin (d) new text end Any documents or information disclosing or pertaining to health or financial
information shall be filed as confidential documents, consistent with the bill of particulars
under section 524.5-121.

new text begin (e) If the respondent is a patient in a hospital or care facility, a rebuttable presumption
exists that there is no substantial harm to the respondent's health, safety, or welfare.
new text end

Sec. 19.

Minnesota Statutes 2022, section 573.02, subdivision 3, is amended to read:

Subd. 3.

Trustee for action.

Upon written petition by the surviving spouse deleted text begin or deleted text end new text begin , new text end one of
the next of kin, new text begin or other interested person as determined by the court, new text end the court having
jurisdiction of an action falling within the provisions of subdivisions 1 or 2, shall appoint
a suitable and competent person as trustee to commence or continue such action and obtain
recovery of damages therein. The trustee, before commencing duties shall file a consent
and oath. Before receiving any money, the trustee shall file a bond as security therefor in
such form and with such sureties as the court may require.