Legacy Assisted Living Providers in Limbo

Posted on November 4, 2020 by Kari Thurlow

Last week, MDH shared a discussion document with LeadingAge MN staff outlining key questions regarding the application of physical plant and design requirements under the assisted living licensure law to existing settings and those settings under development. At the time 144G passed the Legislature, there was a common understanding among stakeholders that existing providers would be grandfathered under current building codes and new physical plant requirements would not apply. We further understood that these “legacy providers” would include those settings currently under development, so long as they had applied for building permits on or before July 31, 2021.

Last week, we learned that MDH’s current interpretation of the statute does not support this understanding and that legislative action is needed to clarify the law. According to MDH, the current statute is being interpreted as follows:

New licensees will be required to meet the physical plant and design code requirements in 144G.  Existing providers (“Legacy providers”) may be grandfathered in under existing building codes.  “Legacy providers” must meet all of the following requirements at the time the license application is submitted:

• The HWS establishment is registered under Minnesota Statutes, chapter 144D and has an assigned Health Facility Identification (HFID) number;
• The HWS establishment is actively providing assisted living services as allowed under Minnesota Statutes, sections 144G.01 – 144G.07, to at least one resident; and
• The arranged home care provider is licensed under Minnesota Statutes, chapter 144A.

If a setting satisfies all three criteria, then the setting is a “legacy facility” and would be grandfathered under existing building codes. Providers that do not meet this criteria are considered “new licensees” and subject to the physical plant and design code requirements of 144G. 

This is problematic for those under the process of construction. A significant difference between current building codes and the physical plant requirements under the assisted living licensure law is that settings that are more than two stories high may no longer be constructed from wood but must use steel instead. This interpretation is also problematic for settings that may be open but not actively providing assisted living services to at least one client, especially given that MDH is currently not issuing new home care licenses during the pandemic.

There are ongoing questions about the Department’s interpretation with respect to renovations and additions to legacy providers as well as questions related to changes of ownership. This is a high priority issue for LeadingAge MN. We have requested that the Department explore options for providing variances to providers who may be affected by this interpretation. Furthermore, we will be advocating to amend the current statute. MDH has expressing willingness and support for legislative changes that would avoid unintended consequences, and we will continue to work with stakeholders to develop a proposal for the Legislature to consider and pass.