MDH Submits Modifications to Assisted Living Licensure Rule, Requests Reconsideration

Posted on April 28, 2021 by Kari Thurlow

On April 16, MDH filed a response to the Proposed Assisted Living Licensure Rules to the Office of Administrative hearings and requested that Chief Judge Starr review and approve the rule with the modifications proposed. Modifications were made necessary dues to the disapproval of certain aspects of the rule as originally submitted. Other modifications were suggested by the Administrative Law Judge for clarity. 

LeadingAge Minnesota understands that that this week the Administrative Law Judge (ALJ) has approved the proposed modifications in part and also disapproved them in part in a letter provided to the Minnesota Department of Health (MDH). As of the writing of this article, this most recent ALJ letter has not been made publicly available but will be posted later this week. However, we understand that MDH will agree to any further changes the ALJ has recommended and will be fully compliant with the judge’s decision.  We expect that this revised rule will be submitted to the governor’s office for final approval in the coming days. While it may take several weeks for the rule to be certified, we do not expect further substantive changes to the rule once it is submitted to the governor’s office. 

The following are the most significant changes to the rule proposed by MDH last week:

New definition for elopement
MDH proposed to modify the definition of elopement. The ALJ had found that the earlier proposed definition was too vague. The revised definition is as follows: “Elopement” means when a secured dementia unit resident leaves the secured dementia unit, including any attached outdoor space, without the level of staff supervision required by the resident’s most recent nursing assessment.

Deletes proposed Rule related to license required
Proposed rule 4659.0040, subpart 1 related to requiring a license before providing or advertising a license was unnecessary and confusing. MDH agreed that Minnesota Statute is already clear and has proposed to delete this section of the rule. 

Modifies Pretermination Meeting Notice Rule
We raised concerns with this portion of the rule, and the ALJ ordered modifications to ensure that it was consistent with the statute. The proposed modifications are as follows: The facility must schedule and participate in arrange the pretermination meeting with the resident and the resident’s representatives, to occur on a day and make reasonable efforts to ensure that the resident and resident’s representatives are able to attend the meeting. If an in-person meeting is impractical or impossible, the facility may attempt to schedule and participate in a meeting via telephone, video, or other means as provided for emergency relocations under subpart 2.

Modifies Assessor Qualifications Rule
We argued that an LPN should be authorized to conduct focused assessments. The ALJ ordered clarification of the assessment rule and MDH has proposed changes. However, the changes mean that an RN will still need to conduct any required assessments, under the statute, including assessments of prospective residents, reassessment and monitoring after 14 days of initiation of services, and ongoing reassessment and monitoring as needed, but at least every 90 days. The proposed changes read as follows: A registered nurse shall complete the nursing assessments and reassessments required under Minnesota Statutes, section 144G.70, subdivisions 2(b) and (c). Ongoing monitoring may be completed by other licensed nurses acting within the scope of their licenses under Minnesota Statutes, section 148.171.