House Includes Proposed Changes to Assisted Living Licensure Laws

On April 7, 2021 by Kari Thurlow

As part of the Minnesota Legislature's budget process, the House of Representatives has included in its Health and Human Services (HHS) omnibus budget bills critical changes to the assisted living licensure law that could significantly disrupt implementation.

Leading Age Minnesota and the Long-Term Care Imperative have worked diligently with MDH and consumer stakeholders over the past three years to create the appropriate framework for assisted living licensure. We have had an unwavering commitment to implementing the 2019 landmark assisted living licensure legislation and reaching consensus and collaboration with our stakeholder partners. As the time for implementation is just weeks away, we continue to work closely with MDH to facilitate implementation, even as we continue to advocate for changes that address concerns with the current law. Unfortunately, some consumer advocate stakeholders have gone outside the consensus process and sought changes to the licensure law through the legislative process.

The House HHS omnibus bills contain three changes to the assisted living licensure law. Two of these changes are supported by all stakeholders and critical to implementation. LeadingAge MN and the LTC Imperative oppose the third proposed change, and it was not part of any stakeholder agreement.

First, the good news: the House includes two essential provisions aimed at addressing technical errors in the current licensure law.

The first provision is consensus language that addresses a serious drafting error in Minnesota Statute 144G, which requires any provider seeking an assisted living with dementia care license to provide residents with access to secured outdoor space and walkways that allow residents to enter and return without staff assistance. Under current law, this "outdoor space" requirement applies to existing and new providers alike. A recent informal survey of LeadingAge Minnesota members revealed that at least 30% of our members could not meet this requirement and, therefore, would be ineligible to apply for an assisted living with dementia care license. This could lead to serious access issues for residents needing this level of care. The language included in the House bill addresses this concern by applying the outdoor space requirement only to new licensees or new construction. We strongly support this provision.

The second provision addresses a technical error in the current law. It clarifies that current HWS providers applying for assisted living licensure on June 1 will be applying for a full license, not a provisional license. The error in the current law is the result of an incorrect cross-reference. We strongly support this provision as well.

But here is the bad news: the House and consumer advocates are playing politics with these badly-needed technical changes by conditioning the inclusion of these provisions on a third provision, which seeks to change the definition of an assisted living provider.

The language would amend the definition of assisted living to address what consumer advocates perceive as a "loophole" in the assisted living licensure law. The proposed new definition would expand the scope of providers that would be required to obtain an assisted living license and would include any facility where an operating person or legal entity, either directly or through contract, business relationship, common ownership, or other arrangement with another person or entity, provides sleeping accommodations and assisted living services to one or more adults in the facility.

We believe that this definition greatly expands the number of housing providers required to obtain an assisted living license and will loop in what are otherwise independent senior housing providers. Here are a couple of examples of arrangements that might be affected by this overly broad language:

• A home care agency rents commercial space in an apartment building. Some residents choose to contract for services from that home care provider. Arguably, because the housing provider is a landlord to the home care agency, the entities meet the definition of having an arrangement, and therefore the building must have a license.
• An independent senior housing provider has a small ownership interest in a home care agency. A tenant of the housing provider contracts with the home care agency for services. The tenant has no knowledge that the housing provider has an ownership interest in the home care agency. The housing provider has no knowledge that the tenant is contracting for services. Nonetheless, because of the common ownership interest, the setting must be licensed.
• This proposal has never received a hearing in the House, and legislators have not heard from providers about this proposal's impact. Moreover, the legislation demonstrates a problematic trend that has too often been at the forefront of the licensure rulemaking process: hasty, overreaching policies set into place without full consideration for the consequences.

We have several concerns, including the following:

• If this legislation becomes law, in whole or in part, it will threaten Minnesota's goals of promoting senior setting choices, independent living, lowering costs and preserving quality of life for as long as possible.
• Extending new regulatory burdens beyond assisted living will serve as a strong disincentive for providers to offer independent apartments and reduce interest in the investments needed to provide housing and care for a growing senior population.
• Changing the definition just weeks before the application deadline is reckless and could result unfairly impact housing providers that are not currently planning for licensure.
• There is no evidence that a loophole even exists in the licensure law. Consumer advocates are proposing solutions that are in search of a problem. We believe a better approach would be to implement the law and understand if there are entities that have been left out. 

We ask you to contact your lawmakers and urge them to oppose this provision. To send an email to your lawmakers, CLICK HERE, enter your address and click send. You can personalize your message if you’d like to share specific examples of how this law will affect the seniors living in your senior apartments. These provisions are moving quickly, and we will need you to act this week. Please watch your email for details.