SB0378: SUMMARY OF INTRODUCED BILL IN COMMITTEE (Date Completed: 6-14-17 )

CONTENT

The bill would amend the Public Health Code to do the following:

-- Modify the definition of "home for the aged" to refer to a facility at a single address, and to individuals 55 years of age or older, rather than 60 or older.

-- Allow the Department of Licensing and Regulatory Affairs (LARA) to make a determination, based on two sets of criteria, on whether a facility was exempt from licensure as a home for the aged.

-- Allow an exemption from licensure to be given to an existing facility or a facility under construction at which board was offered through a person not related to the person that provided room or supervised personal care, or both, if that facility met the requirements of the bill.

-- Specify that a granted exemption would no longer apply after a major building modification was made to the facility, and that an exemption could not be granted after December 31, 2019.

-- Allow LARA to revoke an exemption under certain circumstances.

-- Limit the number of criminal history checks of prospective home for the aged employees that LARA would have to pay for, to 40 or 50 per year, depending on the number of beds at a facility.

-- Require the Bureau of Fire Services to amend rules promulgated under the Code to allow physical facilities in existence on or before December 31, 2016, and continuously operating up to the time of application for a home for the aged license, to be reviewed and inspected to comply with certain provisions of a National Fire Protection Association standard.

The bill would take effect 90 days after its enactment.

Home for the Aged Definition

The Code defines "home for the aged" as a supervised personal care facility, other than a hotel, adult foster care facility, hospital, nursing home, or county medical care facility that provides room, board, and supervised personal care to 21 or more unrelated, nontransient, individuals 60 years of age or older. "Home for the aged" includes a supervised personal care facility for 20 or fewer individuals 60 years of age or older if the facility is operated in conjunction with and as a distinct part of a licensed nursing home. The bill would refer to a supervised personal care facility at a single address that provides room, board, and supervised personal care to individuals 55 years of age or older.

The bill would define "supervised personal care" as the direct guidance or hands-on assistance with activities of daily living offered by a facility to its residents that include two or more of the following services provided by the facility to any resident for 30 or more consecutive days as documented in the resident's service plan:

-- Direct and regular involvement by staff in assisting a resident with the administration of his or her prescription medications, including direct supervision of the resident taking medication in accordance with the instructions of his or her licensed health care professional.

-- Hands-on assistance by staff in carrying out two or more of the following activities of daily living: eating, toileting, bathing, grooming, dressing, transferring, and mobility.

-- Direct staff involvement in a resident's personal and social activities or the use of devices to enhance resident safety by controlling resident egress from the facility.

Minimum Allowed Age

The Code provides that a home for the aged may not admit an individual under 60 years of age. However, upon request of a home for the aged and subject to a requirement for documentation, the Director of LARA may waive the age limitation if the individual, the individual's guardian or other legal representative, if appointed, and the owner, operator, and governing body of the home for the aged, upon consultation with the individual's physician, agree on each of the following:

-- The home for the aged is capable of meeting all of the individual's medical, social, and other needs as determined in the individual's plan of service.

-- The individual will be compatible with the other residents of that home for the aged.

-- The placement in that home for the aged is in the best interests of the individual.

The bill would change the minimum age for a person to be admitted to a home for the aged from 60 to 55, subject to the current waiver provisions.

Licensing Exemption

The Code requires a home for the aged to be licensed. Under the bill, LARA would have to make a determination that a facility was exempt from licensure as a home for the aged if the owner, operator, or governing body of the facility submitted to LARA an attestation that assured that one of two sets of criteria was met.

Under the first set of criteria, all of the following requirements would have to be met:

-- The owner, operator, or governing body that provided room and the person that provided supervised personal care were not related.

-- The individual had the right to contract for supervised personal care from a person of his or her choice.

-- The applicant acknowledged that the penalty for submitting a false or inaccurate attestation would be an administrative fine of $10,000.

-- The attestation was provided by the owner or managing company that certified that the people described above were not related.

Under the second set of criteria, both of the following requirements have to be met:

-- The entity that provided room and the entity that provided supervised personal care were related, and the facility was registered as a continuing care community under the Continuing Care Community Disclosure Act, and included a licensed nursing home as part of the continuing care community.

-- The applicant acknowledged that the penalty for submitting a false or inaccurate attestation would be an administrative fine of $10,000.

("Continuing care community" means a retirement community in which a person undertakes to provide or arrange for continuing care, and that is one or more of the following:

-- An adult foster care facility.

-- A home for the aged.

-- An independent living unit.

-- A nursing home.

-- A home health care services agency.

-- Hospice.

-- A place that undertakes to provide care to a member for more than one year.)

Beginning on the bill's effective date, an exemption from licensure could be given to an existing facility or a facility under construction at which board was offered through a person not related to the person that provided room or supervised personal care, or both, if that facility met the requirements of the bill. An exemption granted would no longer apply after a major building modification was made to the facility. An exemption could not be granted after December 31, 2019.

A denial of an exemption from the licensing requirement would be subject to a review by LARA upon the applicant providing further information or an appeal, or both. The Department would have to act on an exemption request as soon as practicable but not later than 60 days after receiving it.

The Department could revoke an exemption if it determined one of the following:

-- The false or inaccurate information provided in the attestation was material to granting the exemption.

-- The facility was found to be negligent in the serious injury or death of a resident and there continued to be a risk to the health and safety of the residents at that facility.

-- The facility did not cooperate in LARA's investigation to make a determination for either of the provisions above.

As used in these provisions, "board" would mean food service provided at the facility.

"Related" would mean any of the following relationships by marriage, blood, or adoption: spouse, child, parent, brother, sister, grandparent, grandchild, aunt, uncle, stepparent, stepbrother, stepsister, or cousin. "Related" also would mean an entity owns or is owned by any person that has a direct or indirect ownership interest in any other entity that provides a component of operations or service concerning the provision of room or supervised personal care.

Criminal History Checks

Under the Code, a covered facility may not employ, independently contract with, or grant clinical privileges to an individual who regularly has direct access to or provides direct services to patients or residents in the covered facility if the individual has been convicted of a crime listed in the Code, or meets other criteria. (A covered facility is a health facility or agency that is a nursing home, county medical care facility, hospice, hospital that provides swing bed services, home for the aged, or home health agency.)

A covered facility may not employ, independently contract with, or grant privileges to an individual who regularly has direct access to or provides direct services to patients or residents in the covered facility until the facility or staffing agency has a criminal history check conducted in compliance with the Code or has received criminal history record information, subject to certain exceptions. The Code establishes procedures regarding the consent, request, and possession of a criminal history check.

Upon receiving a written consent to conduct a criminal history check and required identification check, a staffing agency or covered facility that has made an offer of employment or an independent contract or clinical privileges to the applicant must request the Michigan State Police (MSP) to conduct a criminal history check on the applicant, to enter the applicant's fingerprints into the automated fingerprint identification system database, and to forward the applicant's fingerprints to the FBI. The MSP must request the FBI to determine the existence of any national criminal history pertaining to the applicant. The applicant must provide the MSP with a set of fingerprints.

If the MSP or the FBI charges a fee for conducting the criminal history check, the staffing agency or covered facility must pay the cost of the charge; however, LARA must pay the charge for a covered facility that is a home for the aged. A prospective employee or prospective independent contractor may not be charged for the cost of a criminal history check.

Under the bill, LARA would have to pay the cost of up to 40 criminal history checks per year for a covered facility that was a home for the aged with fewer than 100 beds, and 50 checks per year for a home for the aged with 100 beds or more.

Fire Inspection & Review

Under the Code, the Bureau of Fire Services must enforce rules promulgated by the Bureau for health facilities and agencies to ensure that physical facilities owned, maintained, or operated by a health facility or agency are planned, constructed, and maintained in a manner to protect the health, safety, and welfare of patients.

The Department of Licensing and Regulatory Affairs may not issue a license or certificate to a health facility or agency until it receives an appropriate certificate of approval from the Bureau of Fire Services.

Under the bill, beginning on its effective date, the Bureau of Fire Services would have to amend the rules promulgated under these provisions to allow physical facilities in existence on or before December 31, 2016, and continuously operating up to the time of application for a home for the aged license to be reviewed and inspected to comply with the provisions of Chapter 19 or 33 of the National Fire Protection Association (NFPA) Standard No. 101. Chapter 33 would apply only if the residents were assessed as capable of self-preservation or the physical facility were adequately staffed to evacuate residents in an emergency.

An applicant for a license or certificate would have to provide information requested by LARA to verify that the physical facility was in existence on or before December 31, 2016, and had been continuously operating up to the time of application.

(The NFPA Standard No. 101, known as the Life Safety Code, governs construction and operating conditions for health care organizations. Chapters 19 and 33 pertain to health care occupancies and residential board and care occupancies, respectively.)