Minnesota's New Assisted Living Licensure - Are you Ready?

Minnesota’s new Assisted Living License goes into effect August 1, 2021. With less than five months remaining before the deadline, providers need to act immediately to make sure they are prepared for the new requirements, which are detailed and extensive. Follow our series highlighting some of the more important aspects to be prepared to address.

To discuss any of these questions or any others about the new Assisted Living Licensure, please don’t hesitate to contact us.

1. Have you created the new assisted living resident agreement?
Even if you are already providing comprehensive home care services and have existing resident contracts in place, providers transitioning to the assisted living license will need to create compliant resident agreements to include all of the requirements set forth in the new statute. Sample agreements must be submitted with the assisted living license application. Each current resident will need to sign a new agreement. While many of the content requirements will be familiar, there are new content requirements for, among other things, the right to and process for terminating an assisted living contract.

Minn. Stat. 144G.50.

2. Have you budgeted for the increased licensing fees?
The licensing fee for an Assisted Living License is $2000 plus $75 per resident. The licensing fee for an Assisted Living License with Dementia Care is $3000 plus $100 per resident. While the Minnesota Department of Health has not stated whether the per resident charge will be based upon current census at the time of application or will be based upon licensed resident capacity, the increased fees could be substantial for facilities or campuses with a large number of residents. Likewise, for smaller, home-based facilities, the increased fees could also constitute a significant relative increase in the budget. The stated rationale for the increase in fees is because of the expanded required review and oversight that MDH must perform.

Minn. Stat 144.122

3. Have you planned and budgeted for the new minimum staffing requirements?
The new assisted living statute sets forth certain minimum staffing requirements. Of particular note is that an assisted living facility is now required to ensure that one or more awake staff 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 and safety needs and must be:

capable of communicating with residents
capable of providing or summoning the appropriate assistance
capable of following directions

The awake staff person must be located in the same building, in an attached building or on a contiguous campus and able to respond within a reasonable amount of time.

Minn. Stat. 144G.41

4. Are you prepared to offer meals and snacks meeting the new statutory requirements?
Residents must be permitted access to food at any time. In addition, assisted living facilities must offer to provide or make at least three nutritious meals daily with snacks available, according to the recommended dietary allowances in the United States Department of Agriculture guidelines, including seasonal fresh fruit and vegetables. Menus must be prepared at least one week in advance and the facility must encourage residents’ involvement in meal planning. Food must be prepared and served according to Minnesota Food Code. The facility cannot require a resident to include and pay for meals in their contract.

Minn. Stat. 144G.41

5. Do you know when you can terminate an assisted living contract with a resident?
Terminating an assisted living contract is always a difficult decision. Minnesota’s new assisted living law creates new steps and considerations that must be completed before such a decision is made. Before issuing a notice of termination to a resident, you must schedule a meeting with the resident, the resident’s legal representative, and the resident’s designated representative to explain the reasons for the proposed termination and identify and offer reasonable accommodations or modifications, interventions, or alternatives to avoid the termination or enable the resident to remain in the facility.

Termination can only occur in limited situations, and some examples include nonpayment of rent or services, violation of the assisted living contract, conduct that threatens the health or safety of the resident or another individual in the facility, and illegal conduct. Notices of termination have strict requirements as well.

Minn. Stat. 144G.52.

6. Are you prepared to defend resident terminations through the termination appeal process?
Once you have fully complied with the resident termination process, including the required pre-termination meeting and inclusion of the required contents within a notice of termination, you must understand the resident’s appeal rights. Minnesota’s new assisted living law provides additional safeguards for residents, which allows them to appeal the termination of an assisted living contract.

An appeal may be initiated on very broad grounds, such as if there is a factual dispute as to whether the facility had a permissible basis to initiate the termination; the termination would result in great harm or the potential for great harm to the resident as determined by the totality of the circumstances, except in circumstances where there is a greater risk of harm to other residents or staff at the facility; the resident has cured or demonstrated the ability to cure the reasons for the termination, or has identified a reasonable accommodation or modification, intervention, or alternative to the termination; or the facility has terminated the contract in violation of state or federal law.

Appeals are heard by an Administrative Law Judge assigned by the Minnesota Office of Administrative Hearings, and the facility carries the burden of proof to establish that the termination was permissible in certain circumstances.

Minn. Stat. 144G.54

7. Have you hired your Assisted Living Director yet?
As you start preparing and applying for the new assisted living license, you need to consider who will (and has the required training and qualifications to) act as your facility’s Licensed Assisted Living Director. As part of the application process, you must submit the names, e-mail addresses, telephone numbers, and mailing addresses of all owners, controlling individuals, managerial officials, and the Assisted Living Director.

Licensed Assisted Living Director is defined as a person who administers, manages, supervises, or is in general administrative charge of an assisted living facility, whether or not the individual has an ownership interest in the facility, and whether or not the person’s functions or duties are shared with one or more individuals and who is licensed by the Board of Executives for Long Term Services and Supports.

Minnesota rules for Assisted Living Licensure are currently being finalized. Once the rules are published, the details regarding the education, training, and other requirements for Assisted Living Directors will be set forth in more detail.

Minn. Stat. 144G.08, subd. 6 and 144G.12

8. How will you ensure compliance with Minnesota’s new assisted living facility standards?
As you may have experienced from prior surveys by the Minnesota Department of Health, there were already strict requirements for ensuring resident safety through policies and procedures, record keeping, and overall resident treatment consistent with the applicable standard of care. As of August 1, 2021, these standards are changing, and you must be prepared from day 1 for a survey from the Department of Health.

The Department of Health may refuse to grant a provisional license, refuse to grant a license as a result of a change in ownership, refuse to renew a license, suspend or revoke a license, or impose a conditional license if the owner, controlling individual, or employee of an assisted living facility for various reasons. Your facility may also be subject to fines and other types of discipline based on the determined level and scope of the violations.

Minn. Stat. 144G.20, 144G.30, and 144G.31

9. Is your recordkeeping ready for Minnesota’s new standards?
Your facility should already have policies and procedures in place to prevent the illegal disclosure of a resident’s protected health information to comply with HIPAA, HITECH, and the Minnesota Health Records Act. With that being said, Minnesota’s new assisted living law requires that each facility establish and implement written procedures to control use, storage, and security of resident records, as well as establish criteria for release of resident information.

In addition, there are robust requirements to ensure a full and complete resident treatment record, and strict requirements for providing access to records.

Minn. Stat. 144G.43

10. Are you prepared to transition to the assisted living license?
If you currently hold a comprehensive home care license and a housing with services registration, there are big changes that you must consider. You need to act fast to determine whether you will provide “assisted living services,” as defined by Minnesota law, under an assisted living license, or whether you meet an exception to assisted living licensure.

Depending on your current ownership structure, you will need to determine how to transition not only your license, but also your service plans and assessments, employees, background studies, enrollment as a Minnesota Health Care Provider, and more. Based on your decisions, you may also be required to give your residents statutorily required notice of any such changes.

Minn. Stat. 144G.191

11. Are you ready to fill out the assisted living license application?
The assisted living license application is coming soon! The Minnesota Department of Health has stated that it expects to post the application on or around May 1, 2021. If you currently hold a housing with services registration and a comprehensive home care license and plan on providing assisted living services on or after August 1, 2021, you must apply for an assisted living facility license no later than June 1, 2021. Check your Improved Customer Service Delivery Portal for updates, and please reach out to our team with any questions.

12. We all know about the assisted living law change, but have you heard about the new assisted living rules?
The Minnesota Legislature delegated authority to the Minnesota Department of Health to adopt rules governing assisted living facilities. On January 19, and 20, 2021, the Minnesota Department of Health held a remote-access public hearing on the proposed rules for assisted living licensure. The hearing provided interested persons the opportunity to testify regarding the proposed rules.

These rules will impact how your facility operates just as much (if not more than) as the assisted living law itself. Minnesota Rules Chapter 4659 further details and sets forth standards for, among many other topics:

staffing;
training;
discharge planning and resident appeal rights;
initial assessments;
checklist disclosure of services;
emergency disaster and preparedness plans; and
much, much more.

As the license transition date approaches, let us know how we can help you be prepared for the August 1, 2021, transition date.

Minn. Stat. 144G.09, subd. 3; Minn. R. C. 4659.

Minnesota’s New Assisted Living Licensure – Are you Ready?

March 16, 2021

David M.
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