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SONAR: Proposed Rules Governing Assisted Living Licensure

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SONAR: Proposed Rules Governing Assisted Living Licensure STATEMENT OF NEED AND REASONABLENESS FOR ASSISTED LIVING LICENSURE Proposed Rules Governing Assisted Living Licensure and Consumer Protections for Assisted Living Residents Minnesota Rules, Chapter 4659 Revisor’s ID Number 4605 OAH Docket Number 65-9000-3715 December 2020 Minnesota Department of Health Health Regulation Division PO Box 64900 St. Paul, MN 55164-0900 651-539-3049 or 844-926-1061 [email protected] www.health.state.mn.us/assistedliving To obtain this information in a different format, call: 651-539-3049 or 1-844-926-1061. TABLE OF CONTENTS STATUTORY AUTHORITY ........................................................................................................................ 3 ADVISORY COMMITTEE .......................................................................................................................... 3 INTRODUCTION ...................................................................................................................................... 4 REGULARTORY ANALYSIS ....................................................................................................................... 8 PERFORMANCE BASED RULES .............................................................................................................. 19 ADDITIONAL SONAR REQUIREMENTS .................................................................................................. 20 ADDITIONAL NOTICE PLAN .................................................................................................................. 21 RULE-BY-RULE ANALYSIS ...................................................................................................................... 25 4659.0010 APPLICABILITY AND PURPOSE. ...................................................................................... 25 4659.0020 DEFINITIONS. ................................................................................................................. 26 4659.0030 RESPONSIBILITY TO MEET STANDARDS. ........................................................................ 27 4659.0040 LICENSING IN GENERAL. ................................................................................................ 27 4659.0050 FINES FOR NONCOMPLIANCE. ....................................................................................... 28 4659.0060 ASSISTED LIVING LICENSURE; CONVERSION OF EXISTING ASSISTED LIVING PROVIDERS. ......................................................................................................................................................... 29 4659.0070 ASSISTED LIVING LICENSURE; INITIAL LICENSE RENEWAL. ............................................ 31 4659.0080 VARIANCE....................................................................................................................... 32 4659.0090 UNIFORM CHECKLIST DISCLOSURE OF SERVICES. ......................................................... 34 4659.0100 EMERGENCY DISASTER AND PREPAREDNESS PLAN; INCORPORATION BY REFERENCE. ......................................................................................................................................................... 35 4659.0110 MISSING RESIDENT PLAN. .............................................................................................. 37 4659.0120 PROCEDURES FOR RESIDENT TERMINATION AND DISCHARGE PLANNING. ................. 40 4659.0130 CONDITIONS FOR PLANNED CLOSURES. ........................................................................ 49 4659.0140 Initial Assessments and Continuing Assessments. ........................................................ 61 4659.0150 UNIFORM ASSESSMENT TOOL. ...................................................................................... 66 4659.0160 RELINQUISHING AN ASSISTED LIVING FACILITY WITH DEMENTIA CARE LICENSE. ........ 69 4659.0170 DISEASE PREVENTION AND INFECTION CONTROL. ....................................................... 74 4659.0180 STAFFING. ...................................................................................................................... 76 4659.0190 TRAINING REQUIREMENTS. ........................................................................................... 82 4659.0200 NONRENEWAL OF HOUSING, REDUCTION IN SERVICES; REQUIRED NOTICES. ............. 86 4659.0210 TERMINATION APPEALS; PROCEDURES AND TIMELINES FOR APPEALS. ...................... 87 CONCLUSION ........................................................................................................................................ 89 APPENDIX A ............................................................................................................................................ 1 APPENDIX B ............................................................................................................................................ 2 2 SONAR - HEALTH REGULATION DIVISION STATUTORY AUTHORITY The Minnesota Department of Health (department) received authority to adopt the proposed rules in Minnesota Statutes, section 144G.09, subdivision 3. The legislature directed the department to adopt rules governing assisted living facilities by December 31, 2020. The legislature required the department to adopt rules on the following topics: 1. staffing appropriate for each licensure category to best protect the health and safety of residents no matter their vulnerability; 2. training prerequisites and ongoing training, including dementia care training and standards for demonstrating competency; 3. procedures for discharge planning and ensuring resident appeal rights; 4. initial assessments, continuing assessments, and a uniform assessment tool; 5. emergency disaster and preparedness plans; 6. uniform checklist disclosure of services; 7. a definition of serious injury that results from maltreatment; 8. conditions and fine amounts for planned closures; 9. procedures and timelines for the commissioner regarding termination appeals between facilities and the Office of Administrative Hearings; 10. establishing base fees and per-resident fees for each category of licensure; 11. considering the establishment of a maximum amount for any one fee; 12. procedures for relinquishing an assisted living facility with dementia care license and fine amounts for noncompliance; and 13. procedures to efficiently transfer existing housing with services registrants and home care licensees to the new assisted living facility licensure structure.1 With this statutory authority, the department intends to adopt the assisted living rules. ADVISORY COMMITTEE Starting in October 2019, a department advisory committee met monthly to collaborate on developing the assisted living rules, including the process and timeline for drafting the rules along with discussions on the rulemaking language. The department posted the agendas and minutes of each meeting and recommendations from advisory-committee members on the department’s assisted living web page. In addition to the formal meetings, advisory-committee 1 Minn. Stat. § 144G.09, subd. 3(c). The law’s assisted living provisions were initially codified in chapter 144I, but are now codified in chapter 144G. 3 SONAR - HEALTH REGULATION DIVISION members met informally to discuss issues that were in turn presented to the full advisory committee and department at each meeting. Committee Members . Doug Beardsley – Care Providers of Minnesota . Sean Burke – Minnesota Elder Justice Center . Aisha Elmquist - Office of Ombudsman for Long-Term Care . Ron Elwood – Mid-Minnesota Legal Aid . Mary Jo George – AARP . Wendy Hulsebus – Administrator/Owner Cherrywood Advanced Living . Beth McMullen – Alzheimer’s Association . Dr. Rajean Moone – Minnesota Leadership Council on Aging . Roberta Opheim – Office of Ombudsman for Mental Health & Developmental Disabilities . Karen Peterson – Minnesota HomeCare Association . Dr. Tetyana Shippee – University of Minnesota School of Public Health . Kari Thurlow – LeadingAge Minnesota INTRODUCTION The department proposes rules under Minnesota Statutes, section 144G.09, that will govern licensure, operations, and the provision of assisted living services at assisted living facilities.2 These rules, and the statute that authorizes them, will protect residents’ rights, choices, and their health and safety.3 The law and proposed rules intend to address the inconsistent regulatory oversight of assisted living services and housing and to protect the vulnerable adults who call these facilities home. Under the current laws that govern assisted living, a resident’s housing and services are separately regulated. Facilities providing resident housing are called “housing with services establishments.”4 These establishments must be registered with the state but are subject to 2 These are new rules, as opposed to revisions or additions to existing rules. 3 Minn. Stat. § 144G.09, subd. 3(a). 4 Minn. Stat. § 144D.01, subd. 4 (defining “housing with service establishment” to mean “an establishment providing sleeping accommodations to one or more adult residents, at least 80 percent of which are 55 years of age or older, and offering or providing, for a fee, one or more regularly scheduled health-related services or two or more regularly scheduled supportive services, whether offered or provided directly by the establishment or by another entity arranged for by the establishment…”). 4 SONAR - HEALTH REGULATION DIVISION only minimal oversight and regulation by the department.5 The housing they provide is generally governed by landlord-tenant
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