Variance Request Required for 24-Hour Staffing Rule in Assisted Living

Posted on August 18, 2022 by Bobbie Guidry

If your assisted living setting satisfies the 24-hour staffing rule by utilizing staff from another licensed setting, you must request a variance from the Minnesota Department of Health (MDH) to remain in compliance with assisted living requirements.

Using Staff in Attached or Adjacent Licensed Settings

It is a well-established practice for some providers to utilize staff from an attached or adjacent nursing home or hospital to respond to calls in Assisted Living facilities. This type of response has been utilized for over-night hours in relatively small settings where the residents in the assisted living require minimal care or where the assisted living is steps from the other licensed settings.

Requirements in Statute

The assisted living statute allows a response from another portion of a campus.* The language is located in 144G.41 Minimum Assisted Living Facility Requirements. The language was in place both before and after Assisted Living Licensure went into effect last year and reads as follows:

(12) ensure that one or more persons are available 24 hours per day, seven days per week, who are responsible for responding to the requests of residents for assistance with health or safety needs. Such persons must be:

• awake;
• located in the same building, in an attached building, or on a contiguous campus with the facility in order to respond within a reasonable amount of time;
• capable of communicating with residents;
• capable of providing or summoning the appropriate assistance; and
• capable of following directions;

*Note that a facility with a resident authorized for "24-hour" Customized Living through a Waiver must have a staff person always within the parameters of the setting for monitoring and immediate response.

What Has Changed? The Variance Process

While the language in the statute has not changed, the interpretation by MDH has. MDH now requires a provider to request a variance if staff is responding to an assisted living call from a different licensed setting. The variance process with required elements to include in a request is detailed in 144G.33 Innovation Variance.

Variance Evaluation and Renewal

MDH usually issues variances related to the 24-hour staffing requirement with a six-month renewal. Generally speaking, if the process is working well, MDH may extend the variance duration.

To evaluate the variance, MDH will review:

• Call response times
• History of any related complaints
• Evacuation planning and drills as part of the Emergency Plan
• Staffing response meets the needs of residents and the facility

If you have questions related to this process or other assisted living questions, contact Bobbie Guidry, Vice President Assisted Living and Housing.