SB-0064, As Passed House, September 29, 2015
HOUSE SUBSTITUTE FOR
SENATE BILL NO. 64
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending sections 1104, 20104, 20155, 20155a, 21703, 21734, and
21799a (MCL 333.1104, 333.20104, 333.20155, 333.20155a, 333.21703,
333.21734, and 333.21799a), section 1104 as amended by 2013 PA 268,
sections 20104 and 20155 as amended by 2015 PA 104, section 20155a
as added by 2012 PA 322, section 21734 as added by 2000 PA 437, and
section 21799a as amended by 2004 PA 189.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1104. (1) "Acknowledgment of parentage" means an
acknowledgment executed as provided in the acknowledgment of
parentage act, 1996 PA 305, MCL 722.1001 to 722.1013.
(2) "Administrative procedures act of 1969" means the
administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to
24.328, or a successor act.
(3) "Adult" means an individual 18 years of age or older.
(4) "Code" means this act.
(5)
"Department", except as provided in articles 8, and
15,
and
17, means the state department
of community health and
human
services.
(6)
"Director", except as provided in articles 8, and
15, and
17,
means the state director of community
health and human
services.
(7) "Governmental entity" means a government, governmental
subdivision or agency, or public corporation.
Sec. 20104. (1) "Certification" means the issuance of a
document by the department to a health facility or agency attesting
to the fact that the health facility or agency meets both of the
following:
(a) It complies with applicable statutory and regulatory
requirements and standards.
(b) It is eligible to participate as a provider of care and
services in a specific federal or state health program.
(2)
"Consumer" means a person who is not a provider of health
care
provider as defined in section 1531(3) 300JJ of
title 15 of
the
public health service act, 42 USC 300n.300JJ.
(3) "County medical care facility" means a nursing care
facility, other than a hospital long-term care unit, that provides
organized nursing care and medical treatment to 7 or more unrelated
individuals who are suffering or recovering from illness, injury,
or infirmity and that is owned by a county or counties.
(4) "Department" means the department of licensing and
regulatory affairs.
(5) (4)
"Direct access" means
access to a patient or resident
or to a patient's or resident's property, financial information,
medical records, treatment information, or any other identifying
information.
(6) "Director" means the director of the department.
(7) (5)
"Freestanding surgical
outpatient facility" means a
facility, other than the office of a physician, dentist,
podiatrist, or other private practice office, offering a surgical
procedure and related care that in the opinion of the attending
physician can be safely performed without requiring overnight
inpatient hospital care. Freestanding surgical outpatient facility
does not include a surgical outpatient facility owned by and
operated as part of a hospital.
(8) (6)
"Good moral character"
means that term as defined in
section 1 of 1974 PA 381, MCL 338.41.
Sec. 20155. (1) Except as otherwise provided in this section
and section 20155a, the department shall make at least 1 visit to
each licensed health facility or agency every 3 years for survey
and evaluation for the purpose of licensure. A visit made according
to a complaint shall be unannounced. Except for a county medical
care facility, a home for the aged, a nursing home, or a hospice
residence, the department shall determine whether the visits that
are not made according to a complaint are announced or unannounced.
The department shall ensure that each newly hired nursing home
surveyor, as part of his or her basic training, is assigned full-
time to a licensed nursing home for at least 10 days within a 14-
day period to observe actual operations outside of the survey
process before the trainee begins oversight responsibilities.
(2)
The state department shall establish a process that
ensures both of the following:
(a)
A newly hired nursing home surveyor shall does not make
independent compliance decisions during his or her training period.
(b)
A nursing home surveyor shall is
not be assigned as a
member of a survey team for a nursing home in which he or she
received training for 1 standard survey following the training
received in that nursing home.
(3) The department shall perform a criminal history check on
all nursing home surveyors in the manner provided for in section
20173a.
(4)
A member of a survey team shall must
not be employed by a
licensed nursing home or a nursing home management company doing
business in this state at the time of conducting a survey under
this section. The department shall not assign an individual to be a
member of a survey team for purposes of a survey, evaluation, or
consultation visit at a nursing home in which he or she was an
employee within the preceding 3 years.
(5)
Representatives The
department shall invite
representatives from all nursing home provider organizations and
the
state long-term care ombudsman or his or her designee shall be
invited
to participate in the planning
process for the joint
provider and surveyor training sessions. The department shall
include at least 1 representative from nursing home provider
organizations that do not own or operate a nursing home
representing 30 or more nursing homes statewide in internal
surveyor group quality assurance training provided for the purpose
of general clarification and interpretation of existing or new
regulatory requirements and expectations.
(6) The department shall make available online the general
civil service position description related to the required
qualifications for individual surveyors. The department shall use
the required qualifications to hire, educate, develop, and evaluate
surveyors.
(7) The department shall ensure that each annual survey team
is composed of an interdisciplinary group of professionals, 1 of
whom must be a registered nurse. Other members may include social
workers, therapists, dietitians, pharmacists, administrators,
physicians, sanitarians, and others who may have the expertise
necessary to evaluate specific aspects of nursing home operation.
(8) The department shall semiannually provide for joint
training with nursing home surveyors and providers on at least 1 of
the 10 most frequently issued federal citations in this state
during the past calendar year. The department shall develop a
protocol for the review of citation patterns compared to regional
outcomes and standards and complaints regarding the nursing home
survey
process. The department shall
include the review will be
included
under this subsection in the report required under
subsection (20). Except as otherwise provided in this subsection,
beginning
with his or her first full relicensure period after June
20,
2000, each member of a department
nursing home survey team who
is a health professional licensee under article 15 shall earn not
less than 50% of his or her required continuing education credits,
if any, in geriatric care. If a member of a nursing home survey
team is a pharmacist licensed under article 15, he or she shall
earn not less than 30% of his or her required continuing education
credits in geriatric care.
(9) Subject to subsection (12), the department may waive the
visit required by subsection (1) if a health facility or agency,
requests a waiver and submits the following as applicable and if
all of the requirements of subsection (11) are met:
(a) Evidence that it is currently fully accredited by a body
with expertise in the health facility or agency type and the
accrediting organization is accepted by the United States
Department of Health and Human Services for purposes of section
1865
of part E of title XVIII of the social security act, 42 USC
1395bb.
(b) A copy of the most recent accreditation report, or
executive summary, issued by a body described in subdivision (a),
and the health facility's or agency's responses to the
accreditation report is submitted to the department at least 30
days from license renewal. Submission of an executive summary does
not prevent or prohibit the department from requesting the entire
accreditation report if the department considers it necessary.
(c) For a nursing home, a standard federal certification
survey conducted within the immediately preceding 9 to 15 months
that shows substantial compliance or has an accepted plan of
correction, if applicable.
(10) Except as otherwise provided in subsection (14),
accreditation information provided to the department under
subsection (9) is confidential, is not a public record, and is not
subject to court subpoena. The department shall use the
accreditation information only as provided in this section and
properly destroy the documentation after a decision on the waiver
request is made.
(11) The department shall grant a waiver under subsection (9)
if the accreditation report submitted under subsection (9)(b) is
less than 3 years old or the standard federal survey submitted
under subsection (9)(c) is less than 15 months old and there is no
indication of substantial noncompliance with licensure standards or
of deficiencies that represent a threat to public safety or patient
care. If the accreditation report or standard federal survey is too
old, the department may deny the waiver request and conduct the
visits required under subsection (9). Denial of a waiver request by
the department is not subject to appeal.
(12) This section does not prohibit the department from citing
a violation of this part during a survey, conducting investigations
or inspections according to section 20156, or conducting surveys of
health facilities or agencies for the purpose of complaint
investigations or federal certification. This section does not
prohibit the bureau of fire services created in section 1b of the
fire prevention code, 1941 PA 207, MCL 29.1b, from conducting
annual surveys of hospitals, nursing homes, and county medical care
facilities.
(13) At the request of a health facility or agency, the
department may conduct a consultation engineering survey of a
health facility and provide professional advice and consultation
regarding health facility construction and design. A health
facility or agency may request a voluntary consultation survey
under this subsection at any time between licensure surveys. The
fees for a consultation engineering survey are the same as the fees
established for waivers under section 20161(8).
(14) If the department determines that substantial
noncompliance with licensure standards exists or that deficiencies
that represent a threat to public safety or patient care exist
based on a review of an accreditation report submitted under
subsection (9)(b), the department shall prepare a written summary
of the substantial noncompliance or deficiencies and the health
facility's or agency's response to the department's determination.
The department's written summary and the health facility's or
agency's response are public documents.
(15) The department or a local health department shall conduct
investigations or inspections, other than inspections of financial
records, of a county medical care facility, home for the aged,
nursing home, or hospice residence without prior notice to the
health facility or agency. An employee of a state agency charged
with investigating or inspecting the health facility or agency or
an employee of a local health department who directly or indirectly
gives prior notice regarding an investigation or an inspection,
other than an inspection of the financial records, to the health
facility or agency or to an employee of the health facility or
agency, is guilty of a misdemeanor. Consultation visits that are
not for the purpose of annual or follow-up inspection or survey may
be announced.
(16) The department shall maintain a record indicating whether
a visit and inspection is announced or unannounced. Survey findings
gathered at each health facility or agency during each visit and
inspection, whether announced or unannounced, shall be taken into
account in licensure decisions.
(17) The department shall require periodic reports and a
health facility or agency shall give the department access to
books, records, and other documents maintained by a health facility
or agency to the extent necessary to carry out the purpose of this
article and the rules promulgated under this article. The
department shall not divulge or disclose the contents of the
patient's clinical records in a manner that identifies an
individual except under court order. The department may copy health
facility or agency records as required to document findings.
Surveyors shall use electronic resident information, whenever
available, as a source of survey-related data and shall request
facility assistance to access the system to maximize data export.
(18) The department may delegate survey, evaluation, or
consultation functions to another state agency or to a local health
department qualified to perform those functions. The department
shall not delegate survey, evaluation, or consultation functions to
a local health department that owns or operates a hospice or
hospice
residence licensed under this article. The delegation
department
shall be delegate under this subsection by cost
reimbursement contract between the department and the state agency
or
local health department. Survey, The department shall not
delegate
survey, evaluation, or consultation
functions shall not be
delegated
to nongovernmental agencies, except
as provided in this
section. The voluntary inspection described in this subsection
shall
must be agreed upon by both the licensee and the
department.
(19) If, upon investigation, the department or a state agency
determines that an individual licensed to practice a profession in
this state has violated the applicable licensure statute or the
rules promulgated under that statute, the department, state agency,
or local health department shall forward the evidence it has to the
appropriate licensing agency.
(20) The department may consolidate all information provided
for any report required under this section and section 20155a into
a single report. The department shall report to the appropriations
subcommittees, the senate and house of representatives standing
committees having jurisdiction over issues involving senior
citizens, and the fiscal agencies on March 1 of each year on the
initial and follow-up surveys conducted on all nursing homes in
this
state. The report department
shall include all of the
following information in the report:
(a) The number of surveys conducted.
(b) The number requiring follow-up surveys.
(c) The average number of citations per nursing home for the
most recent calendar year.
(d) The number of night and weekend complaints filed.
(e) The number of night and weekend responses to complaints
conducted by the department.
(f) The average length of time for the department to respond
to a complaint filed against a nursing home.
(g) The number and percentage of citations disputed through
informal dispute resolution and independent informal dispute
resolution.
(h) The number and percentage of citations overturned or
modified, or both.
(i) The review of citation patterns developed under subsection
(8).
(j)
Implementation of the clinical process guidelines and the
impact
of the guidelines on resident care.
(j) (k)
Information regarding the progress
made on
implementing the administrative and electronic support structure to
efficiently coordinate all nursing home licensing and certification
functions.
(k) (l) The
number of annual standard surveys of nursing homes
that were conducted during a period of open survey or enforcement
cycle.
(l) (m)
The number of abbreviated complaint
surveys that were
not conducted on consecutive surveyor workdays.
(m) (n)
The percent of all form CMS-2567
reports of findings
that were released to the nursing home within the 10-working-day
requirement.
(n) (o)
The percent of provider
notifications of acceptance or
rejection of a plan of correction that were released to the nursing
home within the 10-working-day requirement.
(o) (p)
The percent of first revisits that
were completed
within 60 days from the date of survey completion.
(p) (q)
The percent of second revisits that
were completed
within 85 days from the date of survey completion.
(q) (r)
The percent of letters of
compliance notification to
the nursing home that were released within 10 working days of the
date of the completion of the revisit.
(r) (s)
A summary of the discussions from
the meetings
required in subsection (24).
(s) (t)
The number of nursing homes that
participated in a
recognized quality improvement program as described under section
20155a(3).
(21) The department shall report March 1 of each year to the
standing committees on appropriations and the standing committees
having jurisdiction over issues involving senior citizens in the
senate and the house of representatives on all of the following:
(a) The percentage of nursing home citations that are appealed
through the informal dispute resolution process.
(b) The number and percentage of nursing home citations that
are appealed and supported, amended, or deleted through the
informal dispute resolution process.
(c) A summary of the quality assurance review of the amended
citations and related survey retraining efforts to improve
consistency among surveyors and across the survey administrative
unit that occurred in the year being reported.
(22) Subject to subsection (23), a clarification work group
comprised of the department in consultation with a nursing home
resident or a member of a nursing home resident's family, nursing
home provider groups, the American Medical Directors Association,
the state long-term care ombudsman, and the federal Centers for
Medicare and Medicaid Services shall clarify the following terms as
those terms are used in title XVIII and title XIX and applied by
the department to provide more consistent regulation of nursing
homes in this state:
(a) Immediate jeopardy.
(b) Harm.
(c) Potential harm.
(d) Avoidable.
(e) Unavoidable.
(23) All of the following clarifications developed under
subsection (22) apply for purposes of subsection (22):
(a) Specifically, the term "immediate jeopardy" means a
situation in which immediate corrective action is necessary because
the nursing home's noncompliance with 1 or more requirements of
participation has caused or is likely to cause serious injury,
harm, impairment, or death to a resident receiving care in a
nursing home.
(b) The likelihood of immediate jeopardy is reasonably higher
if there is evidence of a flagrant failure by the nursing home to
comply with a peer-reviewed, evidence-based, nationally recognized
clinical
process guideline adopted under subsection (25) than if
the nursing home has substantially and continuously complied with
those
peer-reviewed, evidence-based,
nationally recognized
guidelines. If federal regulations and guidelines are not clear,
and if the clinical process guidelines have been recognized, a
process failure giving rise to an immediate jeopardy may involve an
egregious widespread or repeated process failure and the absence of
reasonable efforts to detect and prevent the process failure.
(c) In determining whether or not there is immediate jeopardy,
the survey agency should consider at least all of the following:
(i) Whether the nursing home could reasonably have been
expected to know about the deficient practice and to stop it, but
did not stop the deficient practice.
(ii) Whether the nursing home could reasonably have been
expected to identify the deficient practice and to correct it, but
did not correct the deficient practice.
(iii) Whether the nursing home could reasonably have been
expected to anticipate that serious injury, serious harm,
impairment, or death might result from continuing the deficient
practice, but did not so anticipate.
(iv) Whether the nursing home could reasonably have been
expected to know that a widely accepted high-risk practice is or
could be problematic, but did not know.
(v) Whether the nursing home could reasonably have been
expected to detect the process problem in a more timely fashion,
but did not so detect.
(d) The existence of 1 or more of the factors described in
subdivision (c), and especially the existence of 3 or more of those
factors simultaneously, may lead to a conclusion that the situation
is one in which the nursing home's practice makes adverse events
likely to occur if immediate intervention is not undertaken, and
therefore constitutes immediate jeopardy. If none of the factors
described in subdivision (c) is present, the situation may involve
harm or potential harm that is not immediate jeopardy.
(e) Specifically, "actual harm" means a negative outcome to a
resident that has compromised the resident's ability to maintain or
reach, or both, his or her highest practicable physical, mental,
and psychosocial well-being as defined by an accurate and
comprehensive resident assessment, plan of care, and provision of
services. Harm does not include a deficient practice that only may
cause or has caused limited consequences to the resident.
(f) For purposes of subdivision (e), in determining whether a
negative outcome is of limited consequence, if the "state
operations manual" or "the guidance to surveyors" published by the
federal Centers for Medicare and Medicaid Services does not provide
specific guidance, the department may consider whether most people
in similar circumstances would feel that the damage was of such
short duration or impact as to be inconsequential or trivial. In
such a case, the consequence of a negative outcome may be
considered more limited if it occurs in the context of overall
procedural
consistency with an accepted a
peer-reviewed, evidence-
based,
nationally recognized clinical process
guideline, adopted
under
subsection (25), as compared to a
substantial inconsistency
with or variance from the guideline.
(g) For purposes of subdivision (e), if the publications
described in subdivision (f) do not provide specific guidance, the
department may consider the degree of a nursing home's adherence to
a peer-reviewed, evidence-based, nationally recognized clinical
process
guideline adopted under subsection (25) in considering
whether the degree of compromise and future risk to the resident
constitutes actual harm. The risk of significant compromise to the
resident may be considered greater in the context of substantial
deviation from the guidelines than in the case of overall
adherence.
(h) To improve consistency and to avoid disputes over
avoidable and unavoidable negative outcomes, nursing homes and
survey agencies must have a common understanding of accepted
process guidelines and of the circumstances under which it can
reasonably be said that certain actions or inactions will lead to
avoidable negative outcomes. If the "state operations manual" or
"the guidance to surveyors" published by the federal Centers for
Medicare and Medicaid Services is not specific, a nursing home's
overall documentation of adherence to a peer-reviewed, evidence-
based, nationally recognized clinical process guideline with a
process
indicator adopted under subsection (25) is relevant
information in considering whether a negative outcome was avoidable
or unavoidable and may be considered in the application of that
term.
(24) The department shall conduct a quarterly meeting and
invite
appropriate stakeholders. Appropriate stakeholders The
department
shall include invite as appropriate stakeholders under
this subsection at least 1 representative from each nursing home
provider organization that does not own or operate a nursing home
representing 30 or more nursing homes statewide, the state long-
term care ombudsman or his or her designee, and any other clinical
experts. Individuals who participate in these quarterly meetings,
in
conjunction jointly with the department, may designate advisory
workgroups to develop recommendations on the discussion topics that
should include, at a minimum, all of the following:
(a) Opportunities for enhanced promotion of nursing home
performance, including, but not limited to, programs that encourage
and reward providers that strive for excellence.
(b) Seeking quality improvement to the survey and enforcement
process, including clarifications to process-related policies and
protocols that include, but are not limited to, all of the
following:
(i) Improving the surveyors' quality and preparedness.
(ii) Enhanced communication between regulators, surveyors,
providers, and consumers.
(iii) Ensuring fair enforcement and dispute resolution by
identifying methods or strategies that may resolve identified
problems or concerns.
(c) Promoting transparency across provider and surveyor
communities, including, but not limited to, all of the following:
(i) Applying regulations in a consistent manner and evaluating
changes that have been implemented to resolve identified problems
and concerns.
(ii) Providing consumers with information regarding changes in
policy and interpretation.
(iii) Identifying positive and negative trends and factors
contributing to those trends in the areas of resident care,
deficient practices, and enforcement.
(d) Clinical process guidelines.
(25)
Subject to subsection (27), the department A nursing home
shall
develop and adopt clinical process guidelines. The department
shall
establish and adopt use
peer-reviewed, evidence-based,
nationally recognized clinical process guidelines or peer-reviewed,
evidence-based, best-practice resources to develop and implement
resident
care policies and compliance protocols
with outcome
measures
for all of the following areas and for other topics where
the
department determines that clarification will benefit providers
and
consumers of long-term care:measurable
outcomes specifically in
the following clinical practice areas:
(a)
Bed Use of bed rails.
(b) Adverse drug effects.
(c)
Falls.Prevention of falls.
(d)
Pressure sores.Prevention
of pressure ulcers.
(e)
Nutrition and hydration. including, but not limited to,
heat-related
stress.
(f) Pain management.
(g) Depression and depression pharmacotherapy.
(h) Heart failure.
(i) Urinary incontinence.
(j) Dementia care.
(k) Osteoporosis.
(l) Altered mental states.
(m) Physical and chemical restraints.
(n)
Culture-change Person-centered
care principles. ,
person-
centered
caring, and self-directed care.
(26) In an area of clinical practice that is not listed in
subsection (25), a nursing home may use peer-reviewed, evidence-
based, nationally recognized clinical process guidelines or peer-
reviewed, evidence-based, best-practice resources to develop and
implement resident care policies and compliance protocols with
measurable outcomes to promote performance excellence.
(27) (26)
The department shall biennially review and update
all
clinical process guidelines as needed and shall continue to
develop
and implement clinical process guidelines for topics that
have
not been developed from the list in subsection (25) and other
topics
identified as a result of the meetings required in
subsection
(24). The department shall consider
recommendations from
an
advisory workgroup created under subsection (24). on clinical
process
guidelines. The department shall
may include training on
new and revised peer-reviewed, evidence-based, nationally
recognized clinical process guidelines or peer-reviewed, evidence-
based, best-practice resources, which contain measurable outcomes,
in
the joint provider and surveyor training sessions as those
clinical
process guidelines are developed and revised.to assist
provider efforts toward improved regulatory compliance and
performance excellence and to foster a common understanding of
accepted peer-reviewed, evidence-based, best-practice resources
between providers and the survey agency. The department shall post
on its website all peer-reviewed, evidence-based, nationally
recognized clinical process guidelines and peer-reviewed, evidence-
based, best-practice resources used in a training session under
this subsection for provider, surveyor, and public reference.
(28) (27)
Representatives from each nursing
home provider
organization that does not own or operate a nursing home
representing 30 or more nursing homes statewide and the state long-
term
care ombudsman or his or her designee shall be are permanent
members
of any a clinical advisory workgroup created under
subsection (24). The department shall issue survey certification
memorandums to providers to announce or clarify changes in the
interpretation of regulations.
(29) (28)
The department shall maintain the
process by which
the
department director of the
long-term care division or his or
her designee reviews and authorizes the issuance of a citation for
immediate jeopardy or substandard quality of care before the
statement
of deficiencies is made final. The review shall be to
must
assure that the applicable concepts,
clinical process
guidelines,
and other tools contained in subsections (25) to (27)
are
being used consistently, accurately, and effectively. the
consistent and accurate application of federal and state survey
protocols and defined regulatory standards. As used in this
subsection, "immediate jeopardy" and "substandard quality of care"
mean those terms as defined by the federal Centers for Medicare and
Medicaid Services.
(30) (29)
Upon availability of funds, the
department shall
give grants, awards, or other recognition to nursing homes to
encourage
the rapid development and implementation or maintenance
of
the resident care policies
and compliance protocols that are
created from peer-reviewed, evidence-based, nationally recognized
clinical
process guidelines adopted under subsection (25).or peer-
reviewed, evidence-based, best-practice resources with measurable
outcomes to promote performance excellence.
(30)
The department shall instruct and train the surveyors in
the
clinical process guidelines adopted under subsection (25) in
citing
deficiencies.
(31) A nursing home shall post the nursing home's survey
report in a conspicuous place within the nursing home for public
review.
(32) Nothing in this section limits the requirements of
related state and federal law.
(33) As used in this section:
(a) "Consecutive days" means calendar days, but does not
include Saturday, Sunday, or state- or federally-recognized
holidays.
(b) "Form CMS-2567" means the federal Centers for Medicare and
Medicaid Services' form for the statement of deficiencies and plan
of correction or a successor form serving the same purpose.
(c) "Title XVIII" means title XVIII of the social security
act,
42 USC 1395 to 1395kkk.1395lll.
(d) "Title XIX" means title XIX of the social security act, 42
USC 1396 to 1396w-5.
Sec. 20155a. (1) Nursing home health survey tasks shall be
facilitated by the licensing and regulatory affairs bureau of
health systems to ensure consistent and efficient coordination of
the nursing home licensing and certification functions for standard
and abbreviated surveys. The department shall develop an electronic
system
to support the coordination of these activities. and shall
submit
a report on the development of an electronic system,
including
a proposed budget for implementation, to the senate and
house
appropriations subcommittees for the department, the senate
and
house of representatives standing committees having
jurisdiction
over issues involving senior citizens, and the senate
and
house fiscal agencies by November 1, 2012. If funds are
appropriated for the system, the department shall implement the
system within 120 days of that appropriation.
(2) When preparing to conduct an annual standard survey, the
department shall determine if there is an open survey cycle and
make every reasonable effort to confirm that substantial compliance
has been achieved by implementation of the nursing home's accepted
plan of correction before initiating the annual standard survey
while maintaining the federal requirement for standard annual
survey interval and state survey average of 12 months.
(3)
The department shall seek approval from the centers for
medicare
and medicaid services Centers
for Medicare and Medicaid
Services to develop a program to provide grants to nursing homes
that
have achieved a 5-star quality rating from the centers for
medicare
and medicaid services. Centers
for Medicare and Medicaid
Services.
The department shall seek approval from
the centers for
medicare
and medicaid services Centers
for Medicare and Medicaid
Services for nursing homes to be eligible to receive a grant, up to
$5,000.00 per nursing home from the civil monetary fund for nursing
homes
that meet the centers for medicare and medicaid services
Centers for Medicare and Medicaid Services standards for the 5-star
quality rating. Grants to nursing homes shall be used to implement
evidence-based quality improvement programs within the nursing
home. Each nursing home that receives a grant shall submit a report
to the department that describes the final outcome from
implementing the program.
(4) All abbreviated complaint surveys shall be conducted on
consecutive days until complete. All form CMS-2567 reports of
survey findings shall be released to the nursing home within 10
consecutive days after completion of the survey.
(5) Departmental notifications of acceptance or rejection of a
nursing home's plan of correction shall be reviewed and released to
the nursing home within 10 consecutive days of receipt of that plan
of correction.
(6) A nursing-home-submitted plan of correction in response to
any survey must have a completion date not to exceed 40 days from
the exit date of survey. If a nursing home has not received
additional citations before a revisit occurs, the department shall
conduct the first revisit not more than 60 days from the exit date
of the survey.
(7) Letters of compliance notification to nursing homes shall
be released to the nursing home within 10 consecutive days of all
survey revisit completion dates.
(8) The department may accept a nursing home's evidence of
substantial compliance instead of requiring a post survey on-site
first or second revisit as the department considers appropriate in
accordance
with the centers for medicare and medicaid services
Centers for Medicare and Medicaid Services survey protocols. A
nursing home requesting consideration of evidence of substantial
compliance in lieu of an on-site revisit must include an affidavit
that asserts the nursing home is in substantial compliance as shown
by the submitted evidence for that specific survey event. There may
be no deficiencies with a scope and severity originating higher
than
level D. F. Citations with
a scope and severity of level F or
below may go through a desk review by the department upon thorough
review of the plan of correction. Citations with a scope and
severity of level G or higher are not to be considered for a desk
review. If there is no enforcement action, the nursing home's
evidence of substantial compliance may be reviewed administratively
and accepted as evidence of deficiency correction.
(9) Informal dispute resolution conducted by the Michigan peer
review organization shall be given strong consideration upon final
review by the department. In the annual report to the legislature,
the department shall include the number of Michigan peer review
organization-referred reviews and, of those reviews, the number of
citations that were overturned by the department.
(10) Citation levels used in this section mean citation levels
as
defined by the centers for medicare and medicaid services'
Centers for Medicare and Medicaid Services' survey protocol grid
defining scope and severity assessment of deficiency.
Sec.
21703. (1) "Patient" means a person who receives care or
services
at a nursing home.resident.
(2) "Patient's representative" or "resident's representative"
means a person, other than the licensee or an employee or person
having a direct or indirect ownership interest in the nursing home,
designated
in writing by a patient resident
or a patient's
resident's guardian for a specific, limited purpose or for general
purposes, or, if a written designation of a representative is not
made,
the guardian of the patient.resident.
(3)
"Relocation" means the movement of a patient resident from
1 bed to another or from 1 room to another within the same nursing
home or within a certified distinct part of a nursing home.
(4) "Resident" means an individual who receives care or
services at a nursing home.
(5) (4)
"Transfer" means the
movement of a patient resident
from 1 nursing home to another nursing home or from 1 certified
distinct part of a nursing home to another certified distinct part
of the same nursing home.
(6) (5)
"Welfare" means, with
reference to a patient,
resident, the physical, emotional, or social well-being of a
patient
resident in a nursing home, including a patient resident
awaiting
transfer or discharge, as documented in the patient's
resident's clinical record by a licensed or certified health care
professional.
Sec. 21734. (1) Notwithstanding section 20201(2)(l), a nursing
home shall give each resident who uses a hospital-type bed or the
resident's legal guardian, patient advocate, or other legal
representative the option of having bed rails. A nursing home shall
offer the option to new residents upon admission and to other
residents upon request. Upon receipt of a request for bed rails,
the nursing home shall inform the resident or the resident's legal
guardian, patient advocate, or other legal representative of
alternatives to and the risks involved in using bed rails. A
resident or the resident's legal guardian, patient advocate, or
other legal representative has the right to request and consent to
bed rails for the resident. A nursing home shall provide bed rails
to a resident only upon receipt of a signed consent form
authorizing bed rail use and a written order from the resident's
attending physician that contains statements and determinations
regarding medical symptoms and that specifies the circumstances
under which bed rails are to be used. For purposes of this
subsection, "medical symptoms" includes the following:
(a) A concern for the physical safety of the resident.
(b) Physical or psychological need expressed by a resident. A
resident's fear of falling may be the basis of a medical symptom.
(2) A nursing home that provides bed rails under subsection
(1) shall do all of the following:
(a) Document that the requirements of subsection (1) have been
met.
(b) Monitor the resident's use of the bed rails.
(c) In consultation with the resident, resident's family,
resident's attending physician, and individual who consented to the
bed rails, periodically reevaluate the resident's need for the bed
rails.
(3)
The department of consumer and industry services shall
develop
maintain clear and uniform guidelines peer-reviewed,
evidence-based, best-practice resources to be used in determining
what constitutes each of the following:
(a) Acceptable bed rails for use in a nursing home in this
state. The department shall consider the recommendations of the
hospital bed safety work group established by the United States
food
and drug administration, Food
and Drug Administration, if
those are available, in determining what constitutes an acceptable
bed rail.
(b) Proper maintenance of bed rails.
(c) Properly fitted mattresses.
(d) Other hazards created by improperly positioned bed rails,
mattresses, or beds.
(4)
The department of consumer and industry services shall
develop
the guidelines maintain the peer-reviewed,
evidence-based,
best-practice resources under subsection (3) in consultation with
the long-term care stakeholders work group established under
section
20155(24). An individual
representing manufacturers of bed
rails,
2 residents or family members, and an individual with
expertise
in bed rail installation and use shall be added to the
long-term
care work group for purposes of this subsection. The
department
shall consider as part of its report to the legislature
the
recommendations of the hospital bed safety work group
established
by the United States food and drug administration, if
those
recommendations are available at the time of the submission
of
the report. Not later than 6 months after the effective date of
the
amendatory act that added this section, the department of
consumer
and industry services shall submit its report to the
legislature.
The department may delay submission of its report by
up
to 3 months so that its report may reflect the recommendations
of
the hospital bed safety work group established by the United
States
food and drug administration.
(5) A nursing home that complies with subsections (1) and (2)
and
the guidelines developed peer-reviewed,
evidence-based, best-
practices resources maintained under this section in providing bed
rails to a resident is not subject to administrative penalties
imposed by the department based solely on providing the bed rails.
Nothing
in this This subsection precludes does not preclude the
department from citing specific state or federal deficiencies for
improperly maintained bed rails, improperly fitted mattresses, or
other hazards created by improperly positioned bed rails,
mattresses, or beds.
(6)
The department of consumer and industry services shall
consult
with representatives of the nursing home industry to
expeditiously
develop interim guidelines on bed rail usage that are
to
be used until the department develops the guidelines required
under
subsection (4).
Sec. 21799a. (1) A person who believes that this part, a rule
promulgated under this part, or a federal certification regulation
applying to a nursing home may have been violated may request an
investigation of a nursing home. The person may submit the request
for investigation to the department as a written complaint, or the
department shall assist a person in reducing an oral request made
under subsection (2) to a written complaint as provided in
subsection (2). A person filing a complaint under this subsection
may file the complaint on a model standardized complaint form
developed and distributed by the department under section 20194(3)
or file the complaint as provided by the department on the
internet.Internet.
(2) The department shall provide a toll-free telephone
consumer complaint line. The complaint line shall be accessible 24
hours per day and monitored at a level to ensure that each priority
complaint is identified and that a response is initiated to each
priority complaint within 24 hours after its receipt. The
department shall establish a system for the complaint line that
includes at least all of the following:
(a) An intake form that serves as a written complaint for
purposes of subsections (1) and (5).
(b) The forwarding of an intake form to an investigator not
later than the next business day after the complaint is identified
as a priority complaint.
(c) Except for an anonymous complaint, the forwarding of a
copy of the completed intake form to the complainant not later than
5 business days after it is completed.
(3) The substance of a complaint filed under subsection (1) or
(2) shall be provided to the licensee no earlier than at the
commencement of the on-site inspection of the nursing home that
takes place in response to the complaint.
(4) A complaint filed under subsection (1) or (2), a copy of
the complaint, or a record published, released, or otherwise
disclosed to the nursing home shall not disclose the name of the
complainant or a patient named in the complaint unless the
complainant or patient consents in writing to the disclosure or the
investigation results in an administrative hearing or a judicial
proceeding, or unless disclosure is considered essential to the
investigation by the department. If the department considers
disclosure essential to the investigation, the department shall
give the complainant the opportunity to withdraw the complaint
before disclosure.
(5) Upon receipt of a complaint under subsection (1) or (2),
the department shall determine, based on the allegations presented,
whether this part, a rule promulgated under this part, or a federal
certification regulation for nursing homes has been, is, or is in
danger of being violated. Subject to subsection (2), the department
shall investigate the complaint according to the urgency determined
by the department. The initiation of a complaint investigation
shall
commence within 15 days after receipt of the written
complaint
by the department.the time frame
consistent with federal
guidelines for investigations of complaints against nursing homes.
(6) If, at any time, the department determines that this part,
a rule promulgated under this part, or a federal certification
regulation for nursing homes has been violated, the department
shall list the violation and the provisions violated on the state
and federal licensure and certification forms for nursing homes.
The department shall consider the violations, as evidenced by a
written explanation, when it makes a licensure and certification
decision or recommendation.
(7) In all cases, the department shall inform the complainant
of its findings unless otherwise indicated by the complainant.
Subject to subsection (2), within 30 days after receipt of the
complaint, the department shall provide the complainant a copy, if
any, of the written determination, the correction notice, the
warning notice, and the state licensure or federal certification
form, or both, on which the violation is listed, or a status report
indicating when these documents may be expected. The department
shall include in the final report a copy of the original complaint.
The complainant may request additional copies of the documents
described in this subsection and upon receipt shall reimburse the
department for the copies in accordance with established policies
and procedures.
(8) The department shall make a written determination,
correction notice, or warning notice concerning a complaint
available for public inspection, but the department shall not
disclose the name of the complainant or patient without the
complainant's or patient's consent.
(9) The department shall report a violation discovered as a
result of the complaint investigation procedure to persons
administering sections 21799c to 21799e. The department shall
assess a penalty for a violation, as prescribed by this article.
(10) A complainant who is dissatisfied with the determination
or investigation by the department may request a hearing. A
complainant shall submit a request for a hearing in writing to the
director within 30 days after the mailing of the department's
findings as described in subsection (7). The department shall send
notice of the time and place of the hearing to the complainant and
the nursing home.
(11) As used in this section, "priority complaint" means a
complaint alleging an existing situation that involves physical,
mental, or emotional abuse, mistreatment, or harmful neglect of a
resident that requires immediate corrective action to prevent
serious injury, serious harm, serious impairment, or death of a
resident while receiving care in a facility.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.