Information Bulletin 19-03: 2019 Minnesota Legislature Home Care/Assisted Living Protections Strengthened

Information Bulletin 19-03

Home Care Providers: 39
Housing with Services: 30

2019 Minnesota Legislature Home Care/Assisted Living Protections Strengthened

Purpose

The purpose of this informational bulletin is to inform licensed home care providers of recent changes to Chapter 144A that strengthen the Minnesota Department of Health’s fining and enforcement authority. The new changes include:

  • Fine amounts have increased for violations of home care licensure law.
  • New fines established for maltreatment violations under the Minnesota Vulnerable Adults Act. 
  • Immediate imposition of fines during a survey, complaint investigation, and/or follow up visit.
  • A new Maltreatment Compensation Fund is established for clients who were subjected to maltreatment.

Background

Effective July 1, 2019, Minnesota consumers receiving services from home care providers in their home and in assisted living settings will benefit from additional protections under Minnesota Law.

These consumer protections were passed by the 2019 Minnesota Legislature and recently signed into law by Governor Walz. A diverse stakeholder group comprised of consumers, long-term care providers, the Minnesota Department of Health, and other state agencies worked diligently together crafting these new consumer protections. 

The changes give the Minnesota Department of Health greater enforcement authority over licensed home care providers who fail to comply with Minnesota’s Vulnerable Adult Act and/or Minnesota’s home care licensure standards. 

Immediate Fines

Under Minn. Stat. § 144A.474, subd. 11, licensed home care providers who provide care to clients in their home and in assisted living settings may be subject to:

  • Immediate fines with no opportunity to correct the violation first during an initial survey, follow-up survey, or complaint investigation.

The immediate fine amounts for Levels 2, 3 and 4 have increased and are as follows:

  • $500 per Level 2 violation that is widespread; Level 2 is a violation that did not harm a client’s health or safety but had the potential to have harmed a client’s health or safety, but was not likely to cause serious injury, impairment, or death.
  • $3000 per Level 3 incident; Level 3 is a violation that harmed a client’s health or safety, not including serious injury, impairment, or death, or a violation that has the potential to lead to serious injury, impairment, or death.
  • $5000 per Level 4 incident; Level 4 is a violation that results in serious injury, impairment, or death.

Under the Minnesota Vulnerable Adults Act, licensed home care providers found responsible for the maltreatment may be subject to immediate fines in the following amounts:

  • $1000 for a maltreatment violation.
  • $5000 for a maltreatment violation consisting of sexual assault, death or abuse resulting in serious injury.

All of these immediate fines will be imposed with no opportunity to correct the violation first. These fines are in addition to any additional enforcement actions taken by the Commissioner. The home care provider maintains the right to appeal all fines and enforcement actions.

Focus on Prevention

The State of Minnesota is taking these new enforcement steps to stem the rise in abuse, neglect, and financial exploitation that the Department of Health has identified through onsite inspections in home care and assisted living settings. Many of these settings serve vulnerable adults.

Minnesota emphasizes the importance of educating and training staff on maltreatment. A key component of identifying maltreatment is meeting the identified needs in each person’s assessment.

When a violation is found, the Minnesota Department of Health will work with home care licensees to identify how to effectively address the violation and ensure that the violation does not reoccur.

The Minnesota Department of Health will continue to work and support the ongoing efforts of our provider and advocacy community to address this serious public health concern in our state.

Fining Authority

Immediate fining authority is found in revised Minnesota Home Care Licensure Statute at 144A.474 subdivision 11. The revised language can be found in its entirety at HF 90 Sixth Engrossment, Article 4 (PDF).

Minnesota Statutes 2018, section 144A.474, subdivision 11, is amended to read in part:
Subd. 11. Fines. (a) Fines and enforcement actions under this subdivision may be assessed based on the level and scope of the violations described in paragraph (c) (b) and imposed immediately with no opportunity to correct the violation first as follows:
(1) Level 1, no fines or enforcement;
(2) Level 2, a fine of $500 per violation, in addition to any of the enforcement mechanisms authorized in section 144A.475 for widespread violations;
(3) Level 3, a fine of $3,000 per incident, in addition to any of the enforcement mechanisms authorized in section 144A.475;
(4) Level 4, fine of $5,000 per incident, in addition to any of the enforcement mechanisms authorized in section 144A.475;
(5) for maltreatment violations for which the licensee was determined to be responsible for the maltreatment under section 626.557, subdivision 9c, paragraph (c), a fine of $1,000. A fine of $5,000 may be imposed if the commissioner determines the licensee is responsible for maltreatment consisting of sexual assault, death, or abuse resulting in serious injury;
(6) the fines in clauses (1) to (4) are increased and immediate fine imposition is authorized for both surveys and investigations conducted.
When a fine is assessed against a facility for substantiated maltreatment, the commissioner shall not also impose an immediate fine under this chapter for the same circumstance.
...
(d) For every violation identified by the commissioner, the commissioner shall issue an  immediate fine pursuant to paragraph (a), clause (6). The license holder must still correct the violation in the time specified. The issuance of an immediate fine can occur in addition to any enforcement mechanism authorized under section 144A.475. The immediate fine may be appealed as allowed under this subdivision.

Maltreatment Compensation Fund Established

Effective July 1, 2019, a new option has been established that gives home care clients the ability to receive compensation when they are found to be subject to maltreatment for which the licensee is determined to be responsible.

Home care clients and providers who receive a substantiated maltreatment report from the Minnesota Department of Health will be notified about the Maltreatment Compensation Fund and the steps that a home care client can take to access the fund.  The fund will be available to home care clients through July 31, 2021. The client who accepts payment agrees to waive any civil claims.

The compensation fund law is found at Minn. Stat. §144A.474, subd. 14. The revised language can be found in its entirety at HF 90 Sixth Engrossment, Article 4 (PDF).

Subd. 14. Maltreatment compensation fund. (a) Once a finding of maltreatment for which the licensee is determined to be responsible is substantiated and any request for reconsideration, if applicable, is completed, the commissioner shall pay the fine assessed under subdivision 11, paragraph (a), clause (5), as compensation to the client who was subject to the maltreatment, if:
(1) the client chooses to receive a compensation payment of either $1,000 or $5,000 as determined by the fine assessed under subdivision 11, paragraph (a), clause (5), depending on the level of maltreatment; and
(2) the client accepts payment of compensation under this subdivision as payment in full and agrees to waive any civil claims, including claims under section 626.557, subdivision 20, arising from the specific maltreatment incident that resulted in the fine.
(b) The commissioner shall notify the client that the client may reject a compensation payment under this subdivision and instead pursue any civil claims.
(c) Except as provided in paragraph (a), Nothing in this subdivision affects the rights available to clients under section 626.557 or prevents a client from filing a maltreatment report in the future.

Prioritizing Enforcement of Service Terminations for Assisted Living Clients

A top priority for the Minnesota Department of Health will be to investigate complaints relating to service terminations in assisted living settings. The Department will prioritize investigations into assisted living service terminations through July 31, 2021.

The Prioritization of Enforcement Activities law is found at HF 90 Sixth Engrossment, Article 1, Section 46 (PDF).

Sec. 46.  PRIORITIZATION OF ENFORCEMENT ACTIVITIES. 
Within available appropriations to the commissioner of health for enforcement activities for fiscal years 2020 and 2021, the commissioner of health shall prioritize enforcement activities taken under Minnesota Statutes, section 144A.442.

Minn. Stat. §144A.442

If an arranged home care provider, as defined in section 144D.01, subdivision 2a, who is not also Medicare certified terminates a service agreement or service plan with an assisted living client, as defined in section 144G.01, subdivision 3, the home care provider shall provide the assisted living client and the legal or designated representatives of the client, if any, with a written notice of termination which includes the following information:
(1) the effective date of termination;
(2) the reason for termination;
(3) without extending the termination notice period, an affirmative offer to meet with the assisted living client or client representatives within no more than five business days of the date of the termination notice to discuss the termination;
(4) contact information for a reasonable number of other home care providers in the geographic area of the assisted living client, as required by section 144A.4791, subdivision 10;
(5) a statement that the provider will participate in a coordinated transfer of the care of the client to another provider or caregiver, as required by section 144A.44, subdivision 1, clause (18);
(6) the name and contact information of a representative of the home care provider with whom the client may discuss the notice of termination;
(7) a copy of the home care bill of rights; and
(8) a statement that the notice of termination of home care services by the home care provider does not constitute notice of termination of the housing with services contract with a housing with services establishment.

More to Come

MDH will be issuing future communications related to how our state is taking measures to improve home care and services serving people in our assisted living settings and those with dementia.

Please subscribe to MDH Information Bulletin email updates for ongoing communication.

Health Regulation Information Bulletins

Updated Monday, July 29, 2019 at 01:19PM