Analysis

Topic: Nursing Homes
Sponsor: Representative Richardville
Date Ordered Enrolled: December 14, 2000
Date of Analysis: December 19, 2000

Position: The Department of Consumer and Industry Services supports the bill.

Background: The bill was introduced at the request of the Department of Consumer and Industry Services to clarify that the department has the authority to appoint a Temporary Manager to oversee operations of nursing homes with serious compliance problems. Temporary managers and advisers are professionals from the private sector who are appointed with the approval of the department to assist homes in achieving and maintaining compliance. Temporary managers are also used to protect residents and supervise the closure of a facility.

Use of temporary mangers and advisors is recognized in the state's administrative rules. The federal government also recognizes such appointments as an appropriate remedy for problem nursing homes. However, there is no specific authority under the Public Health Code for the Department of Consumer and Industry Services to appoint temporary managers and advisers.

This bill attracted several amendments during the course of the legislative process. Senator Van Regenmorter offered and the Senate approved an amendment dealing with bed rails. Although substantially modified at the request of the department, the text was originally contained in a bill introduced by Representative Kuipers (House Bill 6094). This bill passed the House but reached the Senate after the deadline for reporting bills. Senator Shugars inserted an amendment in Senate committee relating to residence in a home for the aged. The language was modified on the Senate floor in response to concerns expressed by the department. The influenza amendment actually started in the House, but the revised language was inserted in the Senate at the request of the Department of Community Health.

Bill Content: The bill amends Section 21799b of the Public Health Code to clarify that the department may appoint at the nursing home's expense a temporary administrative advisor, temporary clinical advisor, or both, to assist nursing home management and staff with compliance. The department may also appoint at the nursing home's expense a temporary manager to oversee a nursing home's compliance or the orderly closure of a facility. The department is required to report annually to the House and Senate standing committees on senior issues on the number of such appointments and whether the nursing home closed or remained open. If the department determines that patients can be safeguarded and provided with a safe environment, the department is required to make decisions regarding the home's future operation based on a presumption in favor of keeping the nursing home open.

In addition to providing specific legal authority for appointment of temporary managers, several other issues are addressed.

- An amendment requiring a nursing home to provide an option of having bed rails. The option must be offered at the time of admission. Use of bed rails is conditioned on receipt of a signed consent form and a written order from the resident's physician. Medical symptoms are defined to include fear of falling. The nursing home has several specific responsibilities relating to the use of bed rails. The use of bed rails must be documented, monitored, and periodically reevaluated. The department is required to develop clear and uniform guidelines regarding the use of bed rails in consultation with the Long Term Care Work Group and others interested in bed rails. The department's report to the Legislature is due within 6 months but may be extended by 3 months to reflect the recommendations of the Hospital Bed Safety Work Group established by the United States Food and Drug Administration. Interim guidelines are also required.
- The department may not order the removal of a resident requiring care in a home for the aged in addition to the room, board, and supervised personal care specified in Section 20106 (3) of the act if two conditions are met. First, the resident, the resident's family, the resident's physician, and the owner, operator, and governing body of the home for the aged must consent. Second, the owner, operator, and governing body of the home for the aged must commit to assuring that the resident receives the necessary additional services.
- Both a home for the aged and a nursing home shall offer each resident an annual influenza vaccination. Alternatively, the facility may provide each resident with information and assistance in obtaining an annual influenza vaccination.

Arguments For: Although the department's authority to appoint a temporary manager has not yet been challenged in court, there have been anxious moments. Nursing homes are not always in agreement with the department concerning compliance issues and remedies. The bed rail issue is a good example of this. The bill will clarify the legal status of this remedy and will discourage a nursing home from delaying imposition of this remedy in the future by going to court.

Although the department did not ask for the amendment relating to bed rails, the Senate was receptive to the department's suggested amendments. As a result, the amendment closely follows legislation enacted in Minnesota in 1998. The amendment is therefore not expected to create significant regulatory issues with the department or result in the loss of federal funds used for nursing home regulation.

Arguments Against: The requirement that temporary managers be paid by the nursing home may compound a facility's financial difficulties. When a facility reaches a point that such an extraordinary measure is necessary it is often experiencing financial difficulties.

The issue of bed rails is extremely complex and highly emotional. These issues deserve more thorough consideration than they received. The bed rail issue received committee discussion and a lengthy floor debate in the House as part of House Bill 6094. This was not the case in the Senate. The subject matter of the House bill was offered as an amendment to House Bill 5689 on the floor. There was no discussion of this issue in committee.

Fiscal Impact: The imposition of a temporary manager does not have a fiscal impact on the Department of Consumer and Industry Services, because the nursing home pays for this person's services. A portion of these costs may ultimately be passed on to the Medicare and Medicaid programs.

Administrative Rule Impact: Rules will be required to implement the bill's new requirement relating to residence in a home for the aged.