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.