Chapter
156
2005 -- S 1134 SUBSTITUTE A AS AMENDED
Enacted 07/05/05
A N A C T
RELATING TO HEALTH AND SAFETY -- THE LONG-TERM CARE REFORM ACT OF 2005 -- NURSING FACILITY QUALITY MONITORING AND EARLY INTERVENTION FOR RESIDENT SAFETY
Introduced By: Senators Roberts, Perry, Tassoni, Paiva-Weed, and Gibbs
Date Introduced: May 26, 2005
It is
enacted by the General Assembly as follows:
SECTION
1. The general assembly finds that safeguarding the quality of care provided to
vulnerable
and frail nursing home residents is an essential role of state government.
Given the
significance
of this responsibility, the "Long-Term Care Reform Act of 2005" is
enacted with the
following
purposes:
To
clarify the roles and responsibilities, and to enhance the coordination of
efforts,
of various state entities in monitoring of nursing home quality and service
provision.
To
adopt federal definitions to determine severity of threat or harm to a
resident,
and to
exceed federal guidelines in more promptly responding to reported
incidences
or complaints of potential harm.
To
institute a system of nursing home financial and quality reporting to provide
early
detection of deteriorating quality of care or supervision.
To
give the department of health the ability to focus a more intensive level of
nursing
home monitoring on those homes for which there are early indicators of
quality
of financial management concerns.
To
provide the responsible agencies of state government with a range of potential
interventions
to be utilized in response to deteriorating nursing home care.
SECTION
2. Sections 23-17-12 and 23-17-12.1 of the General Laws in Chapter 23-17
entitled
"Licensing of Health Care Facilities" are hereby amended to read as
follows:
23-17-12.
Inspections -- Nursing and personal care homes. Inspections -- Nursing
facilities.
-- (a) The licensing agency shall
make or cause to be made unannounced inspections
and
investigations of nursing facilities and residential care/assisted living
facilities. The director
shall
establish by regulation criteria to determine the frequency for unannounced
inspections and
investigation
that shall include specific criteria to determine the appropriate frequency of
those
surveys
including, but not limited to, patient acuity, quality indicators, staff
retention, financial
status, and a facility's past compliance with the
regulations. In no instance shall any facility with a
pattern
of noncompliance with regulations or orders, indications of marginal financial
status,
repeated
levels of nursing hours per resident significantly below the state average, or
other risk
factors
determined to influence quality,
receive less than two (2) surveys in addition to the annual
licensing
survey required by this chapter. Any nursing care facility which is cited for
substandard
care by
the licensing agency shall be inspected on a bimonthly basis for the twelve
(12) month
period
immediately following any citation. The licensing agency shall, on an annual
basis, cause
no less
than ten percent (10%) of all nursing care facility annual surveys to be
conducted, in
whole or
in part, on nights and/or on weekends. The inspections shall be conducted both
as to
profit
and nonprofit facilities and the results shall be open to public inspection;
however,
requirements
as to the fire safety code will be deferred in accordance with section
23-28.1-7.
(b) No employee or agent of the department shall be participating in or
supervising an
inspection
of any facility to which that employee currently has, or in the past five (5)
years has
had,
any ownership, employment, or consultant arrangement or any other potential
conflicts of
interest.
The restrictions imposed under this subsection shall be in addition to, and not
in place of,
the
requirements of chapter 36-14 of the general laws.
(b)(c) The licensing agency shall make or cause to be made
unannounced inspections
and/or
investigations of any establishment, facility, boarding house, dormitory,
however named,
to
determine whether the lodging facility should be licensed and regulated under
the provisions of
this
chapter.
(c)(d) All members of the general assembly and any general
officer of this state may
make
announced and unannounced inspections of extended care facilities, skilled
nursing homes,
intermediate
care facilities, personal care homes, nursing homes, and state institutions.
23-17-12.1.
Scope of inspections. – (a) Inspections and investigations shall
include
health,
sanitation, nursing care, and dietary and other conditions immediately
affecting the
patients.
(b)
The department shall assign responsibility for verifying compliance with
licensing
requirements
and issuing renewal licenses to an individual or office independent of the
inspection
process.
(c)
The department shall establish written procedures to: (i) track all
deficiencies
identified
during and after the inspection and investigation processes; and (ii) clearly
define the
internal
process for appealing deficiency citations.
(d)
The department shall establish procedures to verify the implementation of plans
of
correction
and remediation.
SECTION
3. Chapter 23-17 of the General Laws entitled "Licensing of Health Care
Facilities"
is hereby amended by adding thereto the following sections:
23-17-12.5.
Complaints -- Nursing homes. – (a) Complaints regarding a nursing
facility
that
do not constitute patient abuse, neglect or mistreatment, as regulated under
chapter 23-17.8,
shall
be investigated and evaluated by the department as follows:
(1)
The investigation and evaluation shall be made within twenty-four (24) hours if
the
department
has reasonable cause to believe the patient's or resident's health or safety is
in
"immediate
jeopardy"; within seven (7) days for reports – deemed by the department to
be of
"non-immediate
jeopardy – high potential for harm"; within twenty-one (21) days for
reports
deemed
by the department to be of "non-immediate jeopardy – medium potential for
harm"; and
within
sixty (60) days for reports deemed by the department to be of
"non-immediate jeopardy –
low
potential for harm."
(2)
The investigation shall include a visit to the facility.
(3)
Reports of complaint investigations shall be governed in accordance with
chapter 23-
17.8.
(b)
Definitions. For purposes of this section, the following definitions shall
apply:
(1)
"Immediate jeopardy" means a situation in which the nursing
facility's alleged
noncompliance
with one or more state or federal requirements or conditions has caused, or is
likely
to cause serious injury, harm, impairment or death to a resident; or shall be
defined in
accordance
with 42 CFR 489 or any subsequent applicable federal regulations.
(2)
"Non-immediate jeopardy – high potential for harm" means a situation
in which a
nursing
facility's alleged noncompliance with one or more state or federal requirements
or
conditions
may have caused harm that negatively impacts the individual's mental, physical
and/or
psychosocial
status; or shall be defined in accordance with 42 CFR 489 or any subsequent
applicable
federal regulations.
(3)
"Non-immediate jeopardy – medium potential for harm" means a
situation in which a
nursing
facility's alleged noncompliance with one or more state or federal requirements
or
conditions
has caused or may have caused harm that is of limited consequence and does not
significantly
impair the individual's mental, physical and/or psychosocial status to
function; or
shall
be defined in accordance with 42 CFR 489 or any subsequent applicable federal
regulations.
(4)
"Non-immediate jeopardy – low potential for harm" means a situation
in which a
nursing
facility's alleged noncompliance with one or more state or federal requirements
or
conditions
may have caused mental, physical and/or psychosocial discomfort that does not
constitute
injury or damage; or shall be defined in accordance with 42 CFR 489 or any
subsequent
applicable federal regulations.
(c)
Avoidance of conflict. The department shall establish procedures to insure that
the
prioritization
and classification of complaints received in accordance with section (a) above,
and
chapter
23-17.8, shall be independent of other nursing facility regulatory functions.
The
department
shall include procedures to assure that no employee or agent of the department
shall
be
participating in or supervising a complaint investigation concerning any
facility to which that
employee
has any ownership, employment, or consultant arrangement. The restrictions
imposed
by
the department under this subsection shall be in addition to, and not in place
of, the
requirements
of chapter 36-14 of the general laws.
(d)
Interagency agreements. The department shall enter into interagency agreements
with
any
other departments or agents of state government clarifying roles and
responsibilities for the
receipt
and investigation of complaints regarding nursing facility care, including
guidelines to
allow
an exchange of data unless such exchange is explicitly prohibited by law.
23-17-12.6.
Independent quality monitor, quality consultant and temporary
manager.
– (a) Under the authority
granted to the director in section 23-1-21 and in addition to
any
other statutory authority, whenever the director determines that there is a
deficiency in a
nursing
facility that constitutes immediate jeopardy to health and safety of a resident
or residents,
the
director may take the following actions:
(1)
appoint an independent quality monitor, at the facility's expense, to conduct
periodic
inspections
to assess the efforts made by the nursing facility to achieve compliance with
state and
federal
regulations governing nursing facilities that participate in the Medicare and
medical
assistance
programs and to report its findings to the director;
(2)
require the nursing facility to engage, at the facility's expense, an
independent quality
consultant
to advise and assist the nursing facility's management to achieve and maintain
compliance
with state and federal regulations governing nursing facilities that
participate in the
Medicare
and medical assistance programs and to develop and implement the nursing
facility's
quality
improvement program; and/or
(3)
require the nursing facility to engage, at the facility's expense, a temporary
manager to
assist
the nursing facility to achieve and maintain compliance with state and federal
regulations
governing
nursing facilities that participate in the Medicare and medical assistance
programs and
to implement
the nursing facility's quality improvement program.
(b)
The appointment of a state quality monitor, and ordering the facility to hire
an
independent
quality consultant or temporary manager are sanctions that may be in addition
to or
in
lieu of other sanctions imposed by the state.
(c)
Any state appointed quality monitor, or quality consultant or temporary manager
hired
by
the nursing facility may not be employees of the department.
(d)
For purposes of this section,”
temporary manager”
means any person, corporation, or
other
entity, as required to be hired by the department to provide management
services that assist
the
facility in the correction of deficiencies and financial difficulties
identified in the facility's
operation.
(e)
The director may require the hiring of a temporary manager for a nursing
facility
when
the director determines that a nursing facility is:
(1)
experiencing severe financial difficulties which if continued, present a
substantial
probability
of financial insolvency; or
(2)
a facility is operating in such a manner or condition that continued operation
by the
licensee,
or his or her representative, presents a substantial probability of immediate
jeopardy to
the
health or safety of the residents.
(f)
The qualifications of any quality consultant or temporary manager as required
under
this
section shall be approved by the department. Any quality consultant or
temporary manager
hired
by the nursing facility under this section shall report on progress toward
quality
improvement
to the department in a manner and format determined by the director.
23-17-12.7.
Adverse change in financial condition. – (a) Whenever the
department, or
the
department in consultation with the department of human services, determines
that a nursing
facility's
financial status is of concern and determines, through inspection of the
facility or
investigation
of a complaint, that incident(s), event(s) or patterns of care exist that harm
or have
the
potential to result in harm or danger to the residents of a facility, the
departments, acting
jointly,
shall convene a meeting, as soon as possible but in no event later than ten
(10) days after
the finding(s)
cited above, with the license holder to communicate the state's concerns with
respect
to the operation of the facility. The license holder shall be given the
opportunity to
respond
to the state's concerns and to offer explanation as to why the concerns are not
valid or
accurate.
(b)
In the event that the explanation provided by the license holder is not found
by the
department
to be adequate or otherwise satisfactory, the department shall direct the
license holder
to
prepare and submit, within ten (10) days of the meeting cited above, or for
good cause shown
no
later than twenty (20) days after said meeting, a plan of correction and
remediation for the
department's
review and approval, including, but not limited to, the following elements:
(1)
Specific targeted improvements;
(2)
Definite deadlines for accomplishing those targeted improvements;
(3)
Measurable standards that will be used to judge whether the targeted
improvements
have
been accomplished;
(4)
A spending plan that supports all costs associated with accomplishment of the
targeted
improvements;
(5)
Monthly reporting of cash availability, the status of vendor payments and
employee
payrolls,
and staffing levels, as metrics concerning financial status and quality of
care; and
(6)
With regard to concerns regarding resident care, and if directed by the
department, a
proposal
to engage an independent quality monitor or independent quality consultant, to
work, in
consultation
with the facility administrator and medical director, the implementation of the
plan
of
correction and remediation, and to provide progress updates to the department
of health.
(c)
The department, in consultation with the department of human services, shall
adopt
regulations
to implement this section. The regulations shall incorporate the criteria to
measure
financial
status promulgated by the department of human services pursuant to section
40-8-19.1
of
the general laws.
(d)
Whenever a facility's financial status is determined to be marginal, the
department
shall
cause such a facility to be inspected in order to determine if financial
problems are causing
the
facility to be out of compliance with nursing facility regulatory standards.
(e)
Whenever a facility is determined to be having severe financial difficulties,
the
department
shall cause the facility to have more frequent inspections and the director
may, at the
facility's
expense:
(1)
appoint an independent consultant to review the facility's management and
financial
status
and make recommendations to improve the facility's financial status; or
(2)
require the hiring of a temporary manager of the facility's operations.
(f)
With the exception of the plan of correction and remediation, as allowed in
subsection
(g)
below, the information obtained by the department under this section is
confidential and is not
subject
to disclosure under section 38-2-2, Access to Public Records. However, upon
request, the
department
shall release the information to the following who shall treat the information
as
confidential:
(1)
the facility;
(2)
a person other than the facility if the facility consents in writing to the
disclosure;
(3)
the state Medicaid agency responsible for rate setting of nursing facilities;
(4)
the state long-term care ombudsman; or
(5)
the department of attorney general.
(g)
Within ten (10) days, or twenty (20) days for good cause shown, of the
submission of
the
plan of correction and remediation by the facility, the department shall
either:
(i)
accept the plan, at which time it shall be considered to be a public record,
and the
facility
shall make it, and all reports that follow and are related to it, available for
public
inspection,
and shall provide a written summary of the plan to each resident of the
facility or his
or
her legal representative, and each resident's family representative;
(ii)
conditionally accept the plan with modifications made by the department, at
which
time
the plan shall be considered to be a public record and the facility shall make
it, and all
reports
that follow and are related to it, available in accordance with subsection (i)
above; or
(iii)
reject the plan, at which time all records acquired in accordance with this
section that
do
not violate resident confidentiality shall be considered to be a public record,
and a notice of
said
plan rejection shall be sent, along with directions on obtaining the complete
record to each
resident
of the facility or his or her legal representative and each resident's family
representative.
(h)
The provisions in subsection (e) herein relating to the confidentiality of
records do not
apply:
(1)
to a facility whose license has been revoked or suspended;
(2)
to the use of the information in an administrative proceeding initiated by the
department,
including implementing enforcement actions, and in judicial proceedings
relating
thereto.
SECTION
4. Sections 23-17.8-1 and 23-17.8-9 of the General Laws in Chapter 23-17.8
entitled
"Abuse in Health Care Facilities" are hereby amended to read as
follows:
23-17.8-1.
Definitions. -- (a) (1) "Abuse" means:
(i) Any assault as defined in chapter 5 of title 11, including, but not limited
to, hitting,
kicking,
pinching, slapping, or the pulling of hair; provided, however, unless it is
required as an
element
of the offense charged, it shall not be necessary to prove that the patient or
resident was
injured
by the assault;
(ii) Any assault as defined in chapter 37 of title 11;
(iii) Any offense under chapter 10 of title 11;
(iv) Any conduct which harms or is likely to physically harm the patient or
resident
except where
the conduct is a part of the care and treatment, and in furtherance of the
health and
safety
of the patient or resident; or
(v) Intentionally engaging in a pattern of harassing conduct which causes or is
likely to
cause
emotional or psychological harm to the patient or resident, including but not
limited to,
ridiculing
or demeaning a patient or resident, making derogatory remarks to a patient or
resident
or
cursing directed towards a patient or resident, or threatening to inflict
physical or emotional
harm on
a patient or resident.
(2) Nothing in this section shall be construed to prohibit the prosecution of
any violator
of this
section under any other chapter.
(b) "Department" means the department of health when the incident occurs
in a health
care
facility, and the department of mental health, retardation, and hospitals when
the incident
occurs
in a community residence for people who are mentally retarded or persons with
developmental
disabilities.
(c) "Facility" means any health care facility or community residence
for persons who are
mentally
retarded, or persons with developmental disabilities as those terms are defined
in this
section.
"Health care facility" means any hospital or nursing facility
required to be licensed under
chapter
17 of this title, and any assisted living residence required to be licensed
under chapter
17.4 of
this title, and any community residence whether privately or publicly owned.
"Community
residence" for persons who are mentally retarded or persons with
developmental
disabilities
means any residential program licensed by the department of mental health,
retardation,
and hospitals which meets the definition of a community residence as defined in
section
40.1-24-1(2) and provides services to people who are mentally retarded or
persons with
developmental
disabilities.
(d) "High Managerial Agent" means an officer of a facility, the
administrator and
assistant
administrator of the facility, the director and assistant director of nursing
services, or any
other
agent in a position of comparable authority with respect to the formulation of
the policies of
the
facility or the supervision in a managerial capacity of subordinate employees.
(e) "Mistreatment" means the inappropriate use of medications,
isolation, or use of
physical
or chemical restraints:
(1) As punishment;
(2) For staff convenience;
(3) As a substitute for treatment or care;
(4) In conflict with a physician's order; or
(5) In quantities which inhibit effective care or treatment, or which harms or
is likely to
harm the
patient or resident.
(f) "Neglect" means the intentional failure to provide treatment,
care, goods, and services
necessary
to maintain the health and safety of the patient or resident, or the
intentional failure to
carry
out a plan of treatment or care prescribed by the physician of the patient or
resident, or the
intentional
failure to report patient or resident health problems or changes in health
problems or
changes
in health conditions to an immediate supervisor or nurse, or the intentional
lack of
attention
to the physical needs of a patient or resident including, but not limited to
toileting,
bathing,
meals, and safety. No person shall be considered to be neglected for the sole
reason that
he or
she relies on or is being furnished treatment in accordance with the tenets and
teachings of a
well-recognized
church or denomination by a duly-accredited practitioner of a well-recognized
church
or denomination.
(g) "Patient" means any person who is admitted to a facility for
treatment or care, while
"resident"
means any person who maintains their residence or domicile, on either a
temporary or
permanent
basis, in a facility.
(h) "Person" means any natural person, corporation, partnership,
unincorporated
association,
or other business entity.
(i)
"Immediate jeopardy" means a situation in which the nursing
facility's alleged
noncompliance
with one or more state or federal requirements or conditions has caused, or is
likely
to cause serious injury, harm, impairment or death to a resident; or shall be
defined in
accordance
with 42 CFR 489 or any subsequent applicable federal regulations.
(j)
"Non-immediate jeopardy – high potential for harm" means a situation
in which a
nursing
facility's alleged noncompliance with one or more state or federal requirements
or
conditions
may have caused harm that negatively impacts the individual's mental, physical
and/or
psychosocial
status; or shall be defined in accordance with 42 CFR 489 or any subsequent
applicable
federal regulations.
(k)
"Non-immediate jeopardy – medium potential for harm" means a
situation in which a
nursing
facility's alleged noncompliance with one or more state or federal requirements
or
conditions
has caused or may have caused harm that is of limited consequence and does not
significantly
impair the individual's mental, physical and/or psychosocial status to
function; or
shall
be defined in accordance with 42 CFR 489 or any subsequent applicable federal
regulations.
(l)
"Non-immediate jeopardy – low potential for harm" means a situation
in which a
nursing
facility's alleged noncompliance with one or more state or federal requirements
or
conditions
may have caused mental, physical and/or psychosocial discomfort that does not
constitute
injury or damage; or shall be defined in accordance with 42 CFR 489 or any
subsequent
applicable federal regulations.
23-17.8-9.
Duties of the directors of the department of health and the department of
mental
health, retardation, and hospitals. -- The directors of the department of health and the
department
of mental health, retardation and hospitals or their designee shall:
(1) Immediately notify the attorney general or his or her designee upon receipt
of an oral
or
written report made pursuant to section 23-17.8-2;
(2) Investigate and evaluate the information reported in the reports. The
investigation
and
evaluation shall be made within twenty-four (24) hours if the department has
reasonable
cause to
believe the patient's or resident's health or safety is in "immediate
danger from further
abuse
and neglect and jeopardy";
within seven (7) days for all other reports. deemed by the
department
to be of "non-immediate jeopardy – high potential for harm"; within
twenty-one (21)
days
for reports deemed by the department to be of "non-immediate jeopardy –
medium potential
for
harm"; and within sixty (60) days for reports deemed by the department to
be of "non-
immediate
jeopardy – low potential for harm."
The investigation shall include a visit to the
facility,
an interview with the patient or resident allegedly abused, mistreated, or
neglected, a
determination
of the nature, extent, and cause or causes of the injuries, the identity of the
person
or
persons responsible for the injuries, and all other pertinent facts. The
determination shall be in
writing;
(3) Evaluate the environment at the facility named in the report and make a
written
determination
of the risk of physical or emotional injury to any other patients or residents
in the
same
facility;
(4) Forward to the attorney general within a reasonable time after a case is
initially
reported
pursuant to section 23-17.8-2, subject to subdivision (1), a summary of the
findings and
recommendations
on each case;
(5) If the director or the director's designee has reasonable cause to believe
that a patient
or
resident has died as a result of abuse, mistreatment, or neglect, immediately
report the death to
the
attorney general and the office of the medical examiner. The office of the
medical examiner
shall
investigate the report and communicate its preliminary findings, orally within
seventy-two
(72)
hours, and in writing within seven (7) working days, to the attorney general.
The office of
the
medical examiner shall also communicate its final findings and conclusions,
with the basis for
its final
findings and conclusions, to the same parties within sixty (60) days;
(6) Promulgate any regulations that may be necessary to implement the
provisions of this
chapter;
(7) Maintain a file of the written reports prepared pursuant to this chapter.
The written
reports
shall be confidential, but shall be released to the attorney general or to a
court of
competent
jurisdiction, and may be released, upon written request and with the approval
of the
director
or his or her designee, to the patient or resident, counsel, the reporting
person or agency,
the
appropriate review board, or a social worker assigned to the case.
SECTION
5. Chapter 40-8 of the General Laws entitled "Medical Assistance" is
hereby
amended
by adding thereto the following section:
40-8-19.1.
Nursing facility financial oversight. – (a) On an annual basis,
every licensed
nursing
facility participating in the medical assistance program shall file a financial
statement or
other
financial information acceptable to the department with its annul cost report
(BM-64) for
the
time period covered by the cost report that would provide sufficient
information for the
department
to assess the facility's financial status.
(b)
The department shall, by regulation:
(1)
Develop, in consultation with the department of health, criteria for the
financial
statements
or financial information to be submitted in lieu of the financial statement as
required
in
subsection 40-8-19.1(a);
(2)
Develop criteria for reviewing the financial statement or financial information
submitted
and assessing the financial status of facilities to determine if they have
sufficient
resources
to meet operational and financial expenses and to comply with resident care and
facility
standards;
and
(3)
Establish a set of indicators or criteria that would indicate if a facility's
financial status
is
marginal of if a facility is having severe financial difficulties. These
criteria shall include, but
not
be limited to:
(i)
significant operating losses for two (2) successive years;
(ii)
frequent requests for advance on Medicaid reimbursements;
(iii)
unfavorable working capital ratios of assets to liabilities;
(iv)
high proportion of accounts receivable more than ninety (90) days old;
(v)
increasing accounts payable, unpaid taxes and/or payroll related costs;
(vi)
minimal or decreasing equity and/or reserves;
(vii)
high levels of debt and high borrowing costs;
(c)
Whenever a facility's financial status is determined to be marginal or to have
severe
financial
difficulties, the department shall notify the director of the department of
health.
(d)
Special rate appeal pursuant to section 23-17-12.7. – The department shall file
a state
plan
amendment with the U.S. Department of Health and Human Services to modify the
principles
of reimbursement for nursing facilities, to be effective on October 1, 2005, or
as soon
thereafter
as is authorized by an approved state plan amendment, to assign a special
prospective
appeal
rate for any facility for which, pursuant to section 23-17-12.6, the department
of health has
appointed
an independent quality monitor; the department of health has required to engage
an
independent
quality consultant or temporary manager; and/or the department of health
pursuant to
section
23-17-12.7 has been required to develop and implement a plan of correction and
remediation
to address concerns regarding resident care and coincident financial solvency.
The
special
prospective appeal rate shall be assigned for a duration of not less than six
(6) months,
shall
be based upon the additional cost of the independent quality monitor,
independent quality
consultant
or temporary manager, as the case may be, or the approved spending plan set
forth in
the
plan of correction and remediation, and subject to review of cost report, and
subsequent
extension
at the discretion of the department, at six (6) month intervals for a maximum
of
eighteen
(18) months thereafter. In calculating the prospective per diem, the department
shall
disregard
the cost center ceilings for the direct labor and other operating expense cost
centers.
The
department shall recoup any funds specified in the spending plan that have not
been
expended.
SECTION
6. Severability. If any provision of this act or the application thereof to any
person
or circumstance is held invalid, such invalidity shall not affect other
provisions or
applications
of the act, which can be given effect with out the invalid provision or
application,
and to
this end the provision of this act are declared to be severable.
SECTION
7. Reporting. On or before January 15, 2006, the director of health and the
director
of human services shall submit a report to the joint legislative committee on
health care
oversight
on the implementation and effectiveness of the "Long-Term Care Reform Act
of 2005."
SECTION 8. This act shall
take effect upon passage.
=======
LC03359/SUB A
=======