Assisted Living Licensure Rules Comment Period ends Tuesday

Posted on February 3, 2021 by Bobbie Guidry

The assisted living licensure rule comment period ends Tuesday, and it is not too late to make your voices heard! We strongly encourage you to submit comments before the public comment period closes. The deadline to submit comments is 4:30 p.m. on Feb. 9, 2021. You can submit a comment electronically, found at https://minnesotaoah.granicusideas.com/.

Review the Proposed Rules (PDF) , as well as LTC Imperative written comments and the LeadingAge MN written comments, to help identify areas of the rule which are particularly concerning to you and your organization. We encourage you to personalize your comments, but here are the three topics identified as concerns by LeadingAge MN and the LTC Imperative:

Staffing
In general, we support the proposal in rules regarding staffing standards (Section 4659.0180). The proposed rule would require a clinical nurse supervisor to develop and implement a staffing plan that provides an adequate number of qualified staff to meet the residents’ needs 24-hours a day, seven days a week. This approach recognizes that needs of residents vary and entrusts the expertise of a clinical nurse supervisor to ensure appropriate, person-centered staffing. It should be noted these proposed rules will be in addition to the extensive staffing and training requirements already included in Minn. Stat. 144G.

We raised concerns with two aspects of the staffing rule: (1) the public posting requirement in section 4659.0180, subpart 4 (B) is not reasonable, may create unintentional safety concerns for staff and may unintentionally infringe on privacy rights of residents. (2) the required 10-minute response time on the night shift proposed in 4659.0180, subpart 6 is also not reasonable. Night-time shifts should not be singled out as the staffing plan is to take into account the 24 hour a day needs of residents who have contracted for services. A requirement of a ten-minute response appears to be arbitrary.

Emergency Disaster and Preparedness Plan; Incorporation by Reference
LeadingAge Minnesota and the LTC Imperative opposed the proposed rules regarding emergency and disaster planning, Section 4659.0100. As written, it would incorporate of federal nursing home standards. Such an approach is not reasonable. Centers for Medicare and Medicaid Services (CMS) did not have assisted living settings in mind when they wrote the nursing facility rules, did not seek public comment on their applicability to assisted living settings, nor will they have assisted living settings in mind when they update the rules over time. In addition, it is unreasonable to blindly incorporate successor requirements or model code updates and the like.

Termination and Discharge Planning
The rule regarding terminations (Section 4659.0120) fails to strike the appropriate balance between providing residents due process and the ability for providers to act within a reasonable timeframe to terminate an agreement when necessary. The proposed rule introduces several opportunities for a delayed termination and could ultimately put residents at risk. The rule generally does not account for uncooperative residents or resident representatives, making it unworkable in contentious cases.

Next Steps|
There will be a Rebuttal Comment Period that follows the initial comment period from Feb. 10, 2021, through 4:30 p.m. on Feb. 16, 2021. This will allow commenters to respond to other comments filed during the Initial Comment Period.

The administrative law judge (ALJ) will take all the comments and other materials submitted and evaluate the rules to determine whether the agency has met the standard and demonstrated that the rules are needed and reasonable. If the ALJ determines that the agency has not met all of the legal and procedural requirements, the rules are submitted to the Chief ALJ. If the Chief ALJ supports the ALJ, the agency may not adopt the rule until the defects are corrected. Once the ALJ approves the rules, the agency may submit them to the governor and take other procedural steps for final adoption.

For more information about the rulemaking process for assisted living licensure, contact Kari Thurlow at kthurlow@leadingagemn.org.