Office of Administrative Hearings Released Report on Proposed Assisted Living Licensure Rules

Posted on April 14, 2021 by Kari Thurlow

The Assisted Living Licensure (ALL) Rules Report was issued late last week from Chief Judge Starr and Judge Ann O’Reilly.

Several parts of the proposed rule were disapproved, and the Minnesota Department of Health (MDH) must now decide whether to correct the defects associated with the proposed rules. The Department has several options. It can adopt the corrective actions described by the ALJ and Chief Judge to cure the defects, or it can submit its proposed rules to the Legislative Coordinating Commission for advice and comment. That can take up to 60 days and seems unlikely to be used in this case.

If MDH adopts its own corrections instead of the proposals endorsed by the ALJ, the Department will have to re-submit the changes for review by the Chief ALJ.

Either way, the final step after the Department fixes the errors is to submit them to the Revisor of Statutes to review their form.

It is not clear what actions MDH will take and how this report will impact the timeline for implementing the assisted living licensure rule.

By way of background, the Office of Administrative Hearings conducted a remote-access public hearing on the proposed assisted living licensure rules on January 19 and 20. LeadingAge MN and the LTC Imperative submitted extensive written comments on the proposed rule and rebuttal comments to several other comments throughout the process. Ultimately, our strategy focused on a few critical areas. Below is a summary of those issues and the ALJ’s findings.

Staffing: Our goal was to generally support the proposed rules regarding staffing standards (Section 4659.0180). However, we asked the judge to disapprove of two aspects of the staffing rule: (1) the public posting requirement in section 4659.0180, subpart 4 (B) because it may create unintentional safety concerns for staff and may unintentionally infringe on the privacy rights of residents and (2) the required 10-minute response time on the night shift proposed in 4659.0180, subpart 6 because it was arbitrary and unreasonable.

• The ALJ and chief judge disapproved the proposed rule regarding a required 10-minute nighttime response. The judge cited the LTC Imperative’s reference to the Pettersen Supreme Court case. She also indicated MDH was misconstruing California law.
• The ALJ found that the proposed rule regarding direct care staff availability is inconsistent with the statute. The report ordered that MDH must add back “reasonably foreseeable” and “as required by the resident assessment.”
• The ALJ found that the proposed requirement to post staffing schedules that conflict with HIPAA is disapproved.
• The remainder of the proposed staffing rules were approved over the objection of consumer advocates, who were seeking more specific staffing ratios. 

Emergency Disaster and Preparedness Plan; Incorporation by Reference: LeadingAge MN and the LTC Imperative opposed the proposed rules regarding emergency and disaster planning, Section 4659.0100. As written, it incorporates federal nursing home standards. Such an approach is not reasonable. We argued that this was unreasonable.

• Somewhat surprisingly, the ALJ approved MDH’s reliance on Appendix Z, although she voiced criticism that MDH did not justify its rejection of its own December 2019 emergency plan draft.

Termination and Discharge Planning: LeadingAge MN and the LTC Imperative argued that the rule regarding terminations (Section 4659.0120) failed to strike the appropriate balance between providing residents due process and the ability for providers to act within a reasonable timeframe to terminate an agreement when necessary. We argued that the proposed rule generally did not account for uncooperative residents or resident representatives, making it unworkable in contentious cases.

• The language requiring that the pre-termination meeting be held when the resident and his or her guests are available was disapproved. The judge recognized the rule's language allowed a resident to game the system.
• The ALJ approved a proposed rule that established a five-day expansion of the termination process and the one-day written summary requirement.

Management Agreements: LeadingAge MN commented extensively on the proposed rule related to licensing in general (4659.0040, subpart 1A) that seemed to require management companies would need to carry an assisted living license.

• The judge disapproved the language on delegation of the licensee’s duties and proposed a modification. She stated that, as proposed, it conflicted with the statute and appeared to mean that managing entities had to be licensed, which is not following the statutory plan.

Other Issues:

• The rule's language regarding allowing residents to acquire their services from other providers while still holding the licensee accountable has been disapproved. The judge suggested a modification.
• The nursing assessment rule must add “within the scope of their licenses.”
• The judge rejected the proposed elopement definition and suggested alternative language.
• The judge agreed with MDH that it had the authority not to define “tenant” but criticized MDH’s position.
• The judge approved the rule stating that conversion licenses are not provisional. She mentions the statutory typo but says it is irrelevant.
• The judge disapproved of MDH’s effort to impose the Revenue Recapture Act procedures on administrative appeals. This was an issue raised in the LTC Imperative’s written comments and is important for any provider needing to request a contested case.

We hosted a webinar this week to brief members and shared additional information about the findings. If you have questions about the rulemaking proceedings, contact Kari Thurlow, Senior Vice President of Advocacy.