Minnesota Session Laws - 1991, Regular Session

  

                         Laws of Minnesota 1991 

                        CHAPTER 286-S.F.No. 774 
           An act relating to health; defining "admitted assets"; 
          clarifying licensing requirements for certain 
          residential programs for persons with chemical 
          dependency; establishing procedures for contesting a 
          transfer or discharge from a nursing home; setting a 
          time limit for appeals of civil penalties under the 
          nursing home licensing laws; providing procedures for 
          contesting findings under the vulnerable adults act; 
          appropriating money; amending Minnesota Statutes 1990, 
          sections 62D.044; 62D.045, subdivision 1; 144.50, 
          subdivision 6; 144.653, subdivision 5; 144A.10, 
          subdivisions 4 and 6d; 144A.135; 144A.45, subdivision 
          2; 144A.46, subdivision 2, and by adding a 
          subdivision; 144A.53, subdivision 1; 144A.61, 
          subdivisions 3, 3a, and 6a; 144A.611, subdivisions 1 
          and 2; proposing coding for new law in Minnesota 
          Statutes, chapter 144A. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1990, section 62D.044, is 
amended to read: 
    62D.044 [ADMITTED ASSETS.] 
    "Admitted assets" includes the following: 
    (1) petty cash and other cash funds in the organization's 
principal or official branch office that are under the 
organization's control; 
    (2) immediately withdrawable funds on deposit in demand 
accounts, in a bank or trust company organized and regularly 
examined under the laws of the United States or any state, and 
insured by an agency of the United States government, or like 
funds actually in the principal or official branch office at 
statement date, and, in transit to a bank or trust company with 
authentic deposit credit given before the close of business on 
the fifth bank working day following the statement date; 
    (3) the amount fairly estimated as recoverable on cash 
deposited in a closed bank or trust company, if the assets 
qualified under this section before the suspension of the bank 
or trust company; 
    (4) bills and accounts receivable that are collateralized 
by securities in which the organization is authorized to invest; 
    (5) premiums due from groups or individuals that are not 
more than 90 days past due; 
    (6) amounts due under reinsurance arrangements from 
insurance companies authorized to do business in this state; 
      (7) tax refunds due from the United States or this state; 
      (8) interest accrued on mortgage loans not exceeding in 
aggregate one year's total due and accrued interest on an 
individual loan; 
      (9) the rents due to the organization on real and personal 
property, directly or beneficially owned, not exceeding the 
amount of one year's total due and accrued rent on each 
individual property; 
      (10) interest or rents accrued on conditional sales 
agreements, security interests, chattel mortgages, and real or 
personal property under lease to other corporations that do not 
exceed the amount of one year's total due and accrued interest 
or rent on an individual investment; 
      (11) the fixed required interest due and accrued on bonds 
and other evidences of indebtedness that are not in default; 
      (12) dividends receivable on shares of stock, provided that 
the market price for valuation purposes does not include the 
value of the dividend; 
      (13) the interest on dividends due and payable, but not 
credited, on deposits in banks and trust companies or on 
accounts with savings and loan associations; 
     (14) interest accrued on secured loans that do not exceed 
the amount of one year's interest on any loan; 
    (15) interest accrued on tax anticipation warrants; 
    (16) the amortized value of electronic computer or data 
processing machines or systems purchased for use in the business 
of the organization, including software purchased and developed 
specifically for the organization's use; 
    (17) the cost of furniture, equipment, and medical 
equipment, less accumulated depreciation thereon, and medical 
and pharmaceutical supplies that are used to deliver health care 
and are under the organization's control, provided the such 
assets do not exceed 30 percent of admitted assets; 
    (18) amounts currently due from an affiliate that has 
liquid assets with which to pay the balance and maintain its 
accounts on a current basis.  Any amount outstanding more than 
three months is not current; 
    (19) amounts on deposit under section 62D.041; 
    (20) accounts receivable from participating health care 
providers that are not more than 60 days past due; and 
    (21) investments allowed by section 62D.045, except for 
investments in securities and properties described under section 
61A.284. 
    Sec. 2.  Minnesota Statutes 1990, section 62D.045, 
subdivision 1, is amended to read: 
    Subdivision 1.  [RESTRICTIONS.] Funds of a health 
maintenance organization shall be invested only in securities 
and property designated by law for investment by domestic life 
insurance companies, except that money may be used to purchase 
real estate, including leasehold estates and leasehold 
improvements, for the convenient accommodation of the 
organization's business operations, including the home office, 
branch offices, medical facilities, and field office operations, 
on the following conditions: 
    (1) a parcel of real estate acquired under this subdivision 
may include excess space for rent to others if it is reasonably 
anticipated that the excess will be required by the organization 
for expansion or if the excess is reasonably required in order 
to have one or more buildings that will function as an economic 
unit; 
    (2) the real estate may be subject to a mortgage; and 
    (3) the purchase price of the asset, including capitalized 
permanent improvements, less depreciation spread evenly over the 
life of the property or less depreciation computed on any basis 
permitted under the Internal Revenue Code and its regulations, 
or the organization's equity, plus all encumbrances on the real 
estate owned by a company under this subdivision, whichever is 
greater, does not exceed 20 percent of its admitted assets, 
except if, when calculated in combination with the assets 
described in section 62D.044, clause (17), the total of said 
assets and the real estate assets described hereunder do not 
exceed the total combined percent limitations allowable under 
this section and section 62D.044, clause (17), or, if permitted 
by the commissioner upon a finding that the percentage of the 
health maintenance organization's admitted assets is 
insufficient to provide convenient accommodation for the 
organization's business.  However, a health maintenance 
organization that directly provides medical services owns real 
estate used in the delivery of medical services for its 
enrollees may invest an additional 20 percent of its admitted 
assets in real estate, not requiring the permission of the 
commissioner. 
    Sec. 3.  Minnesota Statutes 1990, section 144.50, 
subdivision 6, is amended to read: 
    Subd. 6.  [SUPERVISED LIVING FACILITY LICENSES.] (a) The 
commissioner may license as a supervised living facility a 
facility seeking medical assistance certification as an 
intermediate care facility for persons with mental retardation 
or related conditions for four or more persons as authorized 
under section 252.291. 
    (b) Class B supervised living facilities seeking medical 
assistance certification as an intermediate care facility for 
persons with mental retardation or related conditions shall be 
classified as follows for purposes of the state building code: 
    (1) Class B supervised living facilities for six or less 
persons must meet Group R, Division 3, occupancy requirements; 
and 
    (2) Class B supervised living facilities for seven to 16 
persons must meet Group R, Division 1, occupancy requirements. 
    (c) Class B facilities classified under paragraph (b), 
clauses (1) and (2), must meet the fire protection provisions of 
chapter 21 of the 1985 life safety code, NFPA 101, for 
facilities housing persons with impractical evacuation 
capabilities, except that Class B facilities licensed prior to 
July 1, 1990, need only continue to meet institutional fire 
safety provisions.  Class B supervised living facilities shall 
provide the necessary physical plant accommodations to meet the 
needs and functional disabilities of the residents.  For Class B 
supervised living facilities licensed after July 1, 1990, and 
housing nonambulatory or nonmobile persons, the corridor access 
to bedrooms, common spaces, and other resident use spaces must 
be at least five feet in clear width, except that a waiver may 
be requested in accordance with Minnesota Rules, part 4665.0600. 
    (d) The commissioner may license as a Class A supervised 
living facility a residential program for chemically dependent 
individuals that allows children to reside with the parent 
receiving treatment in the facility.  The licensee of the 
program shall be responsible for the health, safety, and welfare 
of the children residing in the facility.  The facility in which 
the program is located must be provided with a sprinkler system 
approved by the state fire marshal.  The licensee shall also 
provide additional space and physical plant accommodations 
appropriate for the number and age of children residing in the 
facility.  For purposes of license capacity, each child residing 
in the facility shall be considered to be a resident.  
    Sec. 4.  Minnesota Statutes 1990, section 144.653, 
subdivision 5, is amended to read: 
    Subd. 5.  [CORRECTION ORDERS.] Whenever a duly authorized 
representative of the state commissioner of health finds upon 
inspection of a facility required to be licensed under the 
provisions of sections 144.50 to 144.58 that the licensee of 
such facility is not in compliance with an sections 144.411 to 
144.417, 144.50 to 144.58, 144.651, or 626.557, or the 
applicable rule rules promulgated under the administrative 
procedure act by the state commissioner of health pursuant to 
section 144.56 under those sections, a correction order shall be 
issued to the licensee.  The correction order shall state the 
deficiency, cite the specific rule violated, and specify the 
time allowed for correction. 
    Sec. 5.  Minnesota Statutes 1990, section 144A.10, 
subdivision 4, is amended to read: 
    Subd. 4.  [CORRECTION ORDERS.] Whenever a duly authorized 
representative of the commissioner of health finds upon 
inspection of a nursing home, that the facility or a controlling 
person or an employee of the facility is not in compliance with 
sections 144.411 to 144.417, 144.651, 144A.01 to 144A.16, or 
626.557 or the rules promulgated thereunder, a correction order 
shall be issued to the facility.  The correction order shall 
state the deficiency, cite the specific rule or statute 
violated, state the suggested method of correction, and specify 
the time allowed for correction.  If the commissioner finds that 
the nursing home had uncorrected or repeated violations which 
create a risk to resident care, safety, or rights, the 
commissioner shall notify the commissioner of human services who 
shall (1) review reimbursement to the nursing home to determine 
the extent to which the state has paid for substandard care and, 
(2) furnish the findings and disposition to the commissioner of 
health within 30 days of notification.  
    Sec. 6.  Minnesota Statutes 1990, section 144A.10, 
subdivision 6d, is amended to read: 
    Subd. 6d.  [SCHEDULE OF FINES.] (a) The schedule of fines 
for noncompliance with correction orders issued to nursing homes 
that was adopted under the provisions of section 144A.10, 
subdivision 6, and in effect on May 1, 1989, is effective until 
repealed, modified, or superseded by rule.  
    (b) By September 1, 1990, the commissioner shall amend the 
schedule of fines to increase to $250 the fines for violations 
of section 144.561 144.651, subdivisions 18, 20, 21, 22, 27, and 
30, and for repeated violations.  
    (c) The commissioner shall adopt rules establishing the 
schedule of fines for deficiencies in the requirements of 
section 1919(b), (c), and (d), of the Social Security Act, or 
regulations adopted under that section of the Social Security 
Act. 
    Sec. 7.  Minnesota Statutes 1990, section 144A.135, is 
amended to read: 
    144A.135 [TRANSFER AND DISCHARGE APPEALS.] 
    (a) The commissioner shall establish a mechanism for 
hearing appeals on transfers and discharges of residents by 
nursing homes or boarding care homes licensed by the 
commissioner.  The commissioner may adopt permanent rules to 
implement this section. 
    (b) Until federal regulations are adopted under sections 
1819(f)(3) and 1919(f)(3) of the Social Security Act that govern 
appeals of the discharges or transfers of residents from nursing 
homes and boarding care homes certified for participation in 
Medicare or medical assistance, the commissioner shall provide 
hearings under sections 14.57 to 14.62 and the rules adopted by 
the office of administrative hearings governing contested 
cases.  To appeal the discharge or transfer, or notification of 
an intended discharge or transfer, a resident or the resident's 
representative must request a hearing in writing no later than 
30 days after receiving written notice, which conforms to state 
and federal law, of the intended discharge or transfer.  
    (c) Hearings under this section shall be held no later than 
14 days after receipt of the request for hearing, unless 
impractical to do so or unless the parties agree otherwise.  
Hearings shall be held in the facility in which the resident 
resides, unless impractical to do so or unless the parties agree 
otherwise. 
    (d) A resident who timely appeals a notice of discharge or 
transfer, and who resides in a certified nursing home or 
boarding care home, may not be discharged or transferred by the 
nursing home or boarding care home until resolution of the 
appeal.  The commissioner can order the facility to readmit the 
resident if the discharge or transfer was in violation of state 
or federal law.  If the resident is required to be hospitalized 
for medical necessity before resolution of the appeal, the 
facility shall readmit the resident unless the resident's 
attending physician documents, in writing, why the resident's 
specific health care needs cannot be met in the facility. 
    (e) The commissioner and office of administrative hearings 
shall conduct the hearings in compliance with the federal 
regulations described in paragraph (b), when adopted.  
     (f) Nothing in this section limits the right of a resident 
or the resident's representative to request or receive 
assistance from the office of ombudsman for older Minnesotans or 
the office of health facility complaints with respect to an 
intended discharge or transfer. 
    Sec. 8.  Minnesota Statutes 1990, section 144A.45, 
subdivision 2, is amended to read: 
    Subd. 2.  [REGULATORY FUNCTIONS.] (a) The commissioner 
shall:  
    (1) evaluate, monitor, and license home care providers in 
accordance with sections 144A.45 to 144A.49; 
    (2) inspect the office and records of a provider during 
regular business hours without advance notice to the home care 
provider; 
    (3) with the consent of the consumer, visit the home where 
services are being provided; 
    (4) issue correction orders and assess civil penalties in 
accordance with section 144.653, subdivisions 5 to 8, for 
violations of sections 144A.43 to 144A.48 or the rules adopted 
under those sections; and 
    (5) take other action reasonably required to accomplish the 
purposes of sections 144A.43 to 144A.49. 
    (b) In the exercise of the authority granted in sections 
144A.43 to 144A.49, the commissioner shall comply with the 
applicable requirements of section 144.122, the government data 
practices act, and the administrative procedure act. 
    Sec. 9.  Minnesota Statutes 1990, section 144A.46, 
subdivision 2, is amended to read: 
    Subd. 2.  [EXEMPTIONS.] The following individuals or 
organizations are exempt from the requirement to obtain a home 
care provider license: 
    (1) a person who is licensed as a registered nurse under 
sections 148.171 to 148.285 and who independently provides 
nursing services in the home without any contractual or 
employment relationship to a home care provider or other 
organization; 
    (2) a personal care assistant who provides services under 
the medical assistance program as authorized under sections 
256B.0625, subdivision 19, and 256B.04, subdivision 16; 
    (3) a person or organization that exclusively offers, 
provides, or arranges for personal care assistant services under 
the medical assistance program as authorized under sections 
256B.0625, subdivision 19, and 256B.04, subdivision 16; 
    (4) a person who is registered under sections 148.65 to 
148.78 and who independently provides physical therapy services 
in the home without any contractual or employment relationship 
to a home care provider or other organization; 
    (5) a person who provides services to a person with mental 
retardation under a program of semi-independent living services 
regulated by Minnesota Rules, parts 9525.0500 to 9525.0660; or 
    (6) a person who provides services to a person with mental 
retardation under contract with a county to provide home and 
community-based services that are reimbursed under the medical 
assistance program, chapter 256B, and regulated by Minnesota 
Rules, parts 9525.1800 to 9525.1930. 
     An exemption under this subdivision does not excuse the 
individual from complying with applicable provisions of the home 
care bill of rights. 
    Sec. 10.  Minnesota Statutes 1990, section 144A.46, is 
amended by adding a subdivision to read: 
    Subd. 3c.  [TIME LIMITS FOR APPEALS.] To appeal the 
assessment of civil penalties under section 144A.45, subdivision 
2, clause (4), a denial of a waiver or variance, and an action 
against a license under subdivision 3, a provider must request a 
hearing no later than 15 days after the provider receives notice 
of the action. 
    Sec. 11.  Minnesota Statutes 1990, section 144A.53, 
subdivision 1, is amended to read: 
    Subdivision 1.  [POWERS.] The director may: 
     (a) Promulgate by rule, pursuant to chapter 14, and within 
the limits set forth in subdivision 2, the methods by which 
complaints against health facilities, health care providers, 
home care providers, or administrative agencies are to be made, 
reviewed, investigated, and acted upon; provided, however, that 
a fee may not be charged for filing a complaint. 
     (b) Recommend legislation and changes in rules to the state 
commissioner of health, legislature, governor, administrative 
agencies or the federal government. 
     (c) Investigate, upon a complaint or upon initiative of the 
director, any action or failure to act by a health care 
provider, home care provider, or a health facility. 
     (d) Request and receive access to relevant information, 
records, incident reports, or documents in the possession of an 
administrative agency, a health care provider, a home care 
provider, or a health facility, and issue investigative 
subpoenas to individuals and facilities for oral information and 
written information, including privileged information which the 
director deems necessary for the discharge of responsibilities.  
For purposes of investigation and securing information to 
determine violations, the director need not present a release, 
waiver, or consent of an individual.  The identities of patients 
or residents must be kept private as defined by section 13.02, 
subdivision 12. 
    (e) Enter and inspect, at any time, a health facility and 
be permitted to interview staff; provided that the director 
shall not unduly interfere with or disturb the provision of care 
and services within the facility or the activities of a patient 
or resident unless the patient or resident consents.  
    (f) Issue a correction order orders and assess civil fines 
pursuant to section 144.653 or any other law which provides for 
the issuance of correction orders to health care facilities or 
home care provider, or under section 144A.45.  A facility's 
refusal to cooperate in providing lawfully requested information 
may also be grounds for a correction order. 
    (g) Recommend the certification or decertification of 
health facilities pursuant to Title XVIII or XIX of the United 
States Social Security Act. 
    (h) Assist patients or residents of health facilities in 
the enforcement of their rights under Minnesota law.  
    (i) Work with administrative agencies, health facilities, 
home care providers, and health care providers and organizations 
representing consumers on programs designed to provide 
information about health facilities to the public and to health 
facility residents.  
    Sec. 12.  Minnesota Statutes 1990, section 144A.61, 
subdivision 3, is amended to read: 
    Subd. 3.  [CURRICULA.] The chancellor of vocational 
technical education shall develop curricula to be used for 
nursing assistant training programs for employees of nursing 
homes and boarding care homes.  The curricula, as reviewed, 
approved, and evaluated by the board of nursing, shall be 
utilized by all facilities, institutions, or programs offering 
nursing assistant training programs.  
    Sec. 13.  Minnesota Statutes 1990, section 144A.61, 
subdivision 3a, is amended to read: 
    Subd. 3a.  [COMPETENCY EVALUATION PROGRAM.] The 
commissioner of health shall approve the competency evaluation 
program.  A test competency evaluation must be administered to 
nursing assistants who complete an approved training program and 
desire to be listed in the nursing assistant registry.  The 
tests may only be administered by technical colleges and, 
community colleges, or other organizations approved by the 
department of health.  After January 1, 1992, a competency 
evaluation for a person, other than an individual enrolled in a 
licensed nurse education program, who has not completed an 
approved nursing assistant training program, must include an 
evaluation of all clinical skills. 
    Sec. 14.  Minnesota Statutes 1990, section 144A.61, 
subdivision 6a, is amended to read: 
    Subd. 6a.  [NURSING ASSISTANTS HIRED IN 1990 AND AFTER.] 
Each nursing assistant hired to work in a nursing home or in a 
certified boarding care home on or after January 1, 1990, must 
have successfully completed an approved competency evaluation or 
an approved nursing assistant training program and competency 
evaluation within four months from the date of employment. 
    Sec. 15.  Minnesota Statutes 1990, section 144A.611, 
subdivision 1, is amended to read: 
    Subdivision 1.  [NURSING HOMES AND CERTIFIED BOARDING CARE 
HOMES.] The actual costs of tuition and reasonable expenses for 
the competency evaluation or the nursing assistant training 
program and competency evaluation approved under section 
144A.61, which are paid to nursing assistants pursuant to 
subdivision 2, are a reimbursable expense for nursing homes and 
certified boarding care homes under the provisions of chapter 
256B and the rules promulgated thereunder. 
    Sec. 16.  Minnesota Statutes 1990, section 144A.611, 
subdivision 2, is amended to read: 
    Subd. 2.  [NURSING ASSISTANTS.] A nursing assistant who has 
completed an approved competency evaluation or an approved 
training program and competency evaluation shall be reimbursed 
by the nursing home or certified boarding care home for actual 
costs of tuition and reasonable expenses for the competency 
evaluation or the training program and competency evaluation 90 
days after the date of employment, or upon completion of the 
approved training program, whichever is later. 
    Sec. 17.  [144A.612] [APPEALS FROM FINDINGS OF ABUSE, 
NEGLECT, OR MISAPPROPRIATION OF PROPERTY.] 
    (a) Until federal regulations are adopted under sections 
1819(g)(1)(C) and 1919(g)(1)(C) of the Social Security Act that 
govern appeals from the state's findings of abuse, neglect, or 
misappropriation of property by nursing assistants employed by 
or working in a nursing home or boarding care home, the 
commissioner of health shall provide hearings under sections 
14.57 to 14.62 and the rules adopted by the office of 
administrative hearings governing contested cases.  
    (b) The commissioner of health shall notify the nursing 
assistant of findings by sending written notice, by certified 
mail, to the last known address available from the facility or 
employer.  The notice must contain a statement of the nature of 
the allegation and the time and date of the occurrence; the 
individual's right to a hearing; and the commissioner's intent 
to report the findings to the nurse aide registry, pending the 
individual's appeal. 
    (c) To contest the finding, the nursing assistant must 
request a hearing in writing no later than 30 days after 
receiving written notice of the finding, unless federal 
regulations provide otherwise.  
     (d) The hearing must be held within 60 days from the date 
of receipt of the request for a hearing.  The individual must be 
served written notice by certified mail of the time, place, and 
date of the hearing at least 15 days in advance.  The hearing 
must be held in a place and time that is convenient for the 
individual to attend. 
    (e) The hearing must provide an opportunity for the 
individual to present evidence, either in person, in writing, or 
through witnesses, and to refute the allegations.  The 
individual is entitled to have an attorney or other 
representative present at the hearing.  The commissioner must 
issue a decision within 30 days after the hearing record is 
complete and the parties have had an opportunity to file 
exceptions under section 14.61.  A copy of the decision shall be 
mailed to the individual. 
    (f) If a hearing is requested and held, and if the 
department's findings of abuse, neglect, or misappropriation of 
property are upheld by a preponderance of the evidence, the 
commissioner's decision and findings will be sent to the 
registry established under section 144A.61, subdivision 1.  If a 
hearing is not requested or if the notice to the nursing 
assistant is returned to the department, the commissioner has no 
jurisdiction to hear an appeal at a later date, and the 
department's findings shall be sent to the registry at the end 
of the 30-day period with a notation that a hearing was not 
requested or held.  The registry must include any brief 
statement by the individual disputing the findings. 
    (g) If it is determined that the individual did not 
neglect, abuse, or misappropriate resident property, all records 
and investigative reports shall be classified as private data 
under section 13.39. 
    (h) The identity of the nursing assistant and the findings 
of abuse, neglect, or misappropriation of property are public 
when sent to the registry, notwithstanding the provisions of 
section 626.557, subdivision 12.  The identity of the reporter, 
the vulnerable adult, and persons interviewed are governed by 
section 626.557, subdivision 12. 
     Sec. 18.  [APPROPRIATION.] 
    $300,000 is appropriated from the general fund for fiscal 
year 1992 to the commissioner of health for the biennium ending 
June 30, 1993, for the WIC program to expand services to all 
eligible Minnesotans by January 1, 1994. 
    Sec. 19.  [APPROPRIATION, HEALTH SCREENING.] 
    $130,000 is appropriated from the general fund for the 
biennium ending June 30, 1993, to the commissioner of health to 
provide funding to the environmental pathology program of the 
University of Minnesota's department of laboratory medicine and 
pathology and department of family practice and community health 
to continue a health screening and intervention program for 
herbicide and fumigant applicators in the state.  This 
appropriation is nonrecurring and shall not be included in the 
base for the 1993-1995 biennial budget request. * (This section 
was vetoed by the governor.) 
     Sec. 20.  [EFFECTIVE DATE.] 
    Sections 1 to 17 are effective the day following final 
enactment. 
    Presented to the governor May 29, 1991 
    Signed by the governor June 1, 1991, 5:12 p.m.