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.     

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LC03359/SUB A

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