Minnesota Assisted Living License Update

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While the details have yet to be finalized, Assisted Living Facilities in Minnesota will need to transition to a new combined Assisted Living License by August 1, 2021.[1]

History

Minnesota had been different from other states by requiring the facility to register as a “Housing with Services” facility while the providers of services were required to obtain a Home Care license. In 2019, the Minnesota Legislature—after publicized issues with the Minnesota Department of Health (MDH) ‘s backlog of health facility complaints[2]—enacted the new Assisted Living License, requiring facility and services under one combined license along with additional licensing requirements through MDH.

The enactment required MDH to publish its proposed rules by December 31, 2019, publishing its final rules by December 31, 2020.[3] MDH released sections of the proposed rule in December 2019 and March 2020, finally releasing a more comprehensive set of proposed rules on October 8, 2020.[4]

Proposed Rules

On Thursday, November 5, the Assisted Living Licensure Rules Advisory Committee met to gather stakeholders’ input. The webinar included around 1,000 attendees, which is not surprising considering the final rules’ impact on the industry. And while COVID-19 was not often mentioned during the call, its effects on this industry are present on all the stakeholders’ minds.

The following concerns were raised by provider advocacy organizations in response to the proposed rules.

Emergency Disaster and Preparedness Plan

Under the new license, an Assisted Living Facility must have a disaster planning and emergency preparedness plan as part of its business operations.[5] The proposed rules seek to require Assisted Living Facilities to comply with federal emergency planning regulations and guidance applicable to Medicare-certified skilled nursing facilities (42 CFR § 483.83 and the U.S. Centers for Medicare and Medicaid Services (CMS) “State Operations Manual, Appendix Z”). Representatives from two-provider advocacy organizations noted that CMS has never expanded these requirements outside of skilled nursing facilities and that states with single licenses for assisted living facilities are not expected to comply with requirements intended for nursing homes. One of the committee members further objected to this section of the proposed rules because skilled nursing facilities are often larger entities, while smaller assisted living facilities would not be able to comply with these requirements without physically changing their facility. In response, MDH noted it intends these rules to be scalable but will be reviewing the comments in detail.

Termination and Discharge Planning Procedures

The Minnesota Legislature also enacted requirements for assisted living contract terminations as part of the new license[6] and authorized rulemaking on procedures for discharge planning and ensuring resident appeal rights.[7]

Concerns raised included that the procedures went beyond those required by statute and would be an excessive administrative burden, requiring providers to offer services not required elsewhere as part of any licensing framework. The MDH and advisory committee were asked to map out the procedures and timeframes required in the proposed rules for three situations: provider termination, emergency relocation, and an uncooperative resident who may refuse to participate in the proposed mandated meetings. The goal is to clarify for both MDH and providers how the proposed procedures would work for typical termination situations.

Staffing

The proposed rules establish minimum staffing-standards for initial assessments (including assessments over the weekend), posting of daily staffing schedules, and what appears to be an arbitrary requirement to have a direct-care staff member respond no later than 10 minutes after a request is made during the night shift. Given the industry’s chronic difficulties in finding qualified staff, providers are concerned about maintaining sufficient staffing to meet the rules.

The proposed rule also identifies particular non-clinical tasks requiring the use of a registered nurse—instead of a social worker or other licensed professional acting within the scope of their license. The provider advocacy organizations emphasized that each of these requirements places burdens on the facilities that could increase residents’ costs or decrease assisted living placements’ availability and questioned whether these were realistic requirements given the staff shortages.

Next Steps for Proposed Rules

MDH is continuing to accept comments on the proposed rules. However, they will not be part of the public hearing record[8], though the intent is to follow the rulemaking process by publishing in the State Register a notice of public hearing in the next six weeks (mid-December 2020). Comments received in response to the notice of hearing will be part of the public hearing record to be considered by an administrative law judge.

We will be continuing to closely watch developments on the new assisted living license and its final rules.

SOURCES

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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