Saturday, November 1st, 2014

Federal and Minnesota State Laws and Regulations Pertaining to Nursing Homes

By Attorney Kenneth LaBore

To participate in the Medicare and Medicaid programs, nursing homes must be in compliance with the federal requirements for long term care facilities as prescribed in the U.S. Code of Federal Regulations (42 CFR Part 483). Under these regulations, as well as Minnesota Rule 4658, Minnesota Statute § 144 and Minnesota Statute § 144A, the nursing home must:

• Resident Rights. 42 CFR § 483.10 and Minnesota Statute 144.651 Health Care Bill of Rights

The resident has the right to be free of interference, coercion, discrimination, and reprisal from the facility in exercising his or her rights.

• Admission, transfer and discharge rights. 42 CFR § 483.12

Minnesota Statute § 144A.135 Transfer and Discharge Appeals
(a) The commissioner shall establish a mechanism for hearing appeals on transfers and discharges of residents by nursing homes or boarding care homes licensed by the commissioner. The commissioner may adopt permanent rules to implement this section.

• Resident behavior and facility practices. 42 CFR § 483.13.

(a) Restraints. The resident has the right to be free from any
physical or chemical restraints imposed for purposes of discipline or
convenience, and not required to treat the resident’s medical symptoms.
(b) Abuse. The resident has the right to be free from verbal,
sexual, physical, and mental abuse, corporal punishment, and involuntary
seclusion.
(c) Staff treatment of residents. The facility must develop and
implement written policies and procedures that prohibit mistreatment,
neglect, and abuse of residents and misappropriation of resident
property.
(1) The facility must–
(i) Not use verbal, mental, sexual, or physical abuse, corporal
punishment, or involuntary seclusion
(ii) Not employ individuals who have been–
(A) Found guilty of abusing, neglecting, or mistreating residents by
a court of law; or
(B) Have had a finding entered into the State nurse aide registry
concerning abuse, neglect, mistreatment of residents or misappropriation
of their property; and
(iii) Report any knowledge it has of actions by a court of law
against an employee, which would indicate unfitness for service as a
nurse aide or other facility staff to the State nurse aide registry or
licensing authorities.
(2) The facility must ensure that all alleged violations involving
mistreatment, neglect, or abuse, including injuries of unknown source,
and misappropriation of resident property are reported immediately to
the administrator of the facility and to other officials in accordance
with State law through established procedures (including to the State
survey and certification agency).
(3) The facility must have evidence that all alleged violations are
thoroughly investigated, and must prevent further potential abuse while
the investigation is in progress.
(4) The results of all investigations must be reported to the
administrator or his designated representative and to other officials in
accordance with State law (including to the State survey and
certification agency) within 5 working days of the incident, and if the
alleged violation is verified appropriate corrective action must be
taken.

• Minnesota Statute § 144A.13 Compaints; Resident Rights

Subdivision 1. Processing.
All matters relating to the operation of a nursing home which are the subject of a written complaint from a resident and which are received by a controlling person or employee of the nursing home shall be delivered to the facility’s administrator for evaluation and action. Failure of the administrator within seven days of its receipt to resolve the complaint, or alternatively, the failure of the administrator to make a reply within seven days after its receipt to the complaining resident stating that the complaint did not constitute a valid objection to the nursing home’s operations, shall be a violation of section 144A.10. If a complaint directly involves the activities of a nursing home administrator, the complaint shall be resolved in accordance with this section by a person, other than the administrator, duly authorized by the nursing home to investigate the complaint and implement any necessary corrective measures.
Subd. 2. Resident’s rights.
The administrator of a nursing home shall inform each resident in writing at the time of admission of the right to complain to the administrator about facility accommodations and services. A notice of the right to complain shall be posted in the nursing home. The administrator shall also inform each resident of the right to complain to the commissioner of health. No controlling person or employee of a nursing home shall retaliate in any way against a complaining nursing home resident and no nursing home resident may be denied any right available to the resident under chapter 504B.

• Quality of life. 42 CFR § 483.15

A facility must care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident’s quality of life.

• Have sufficient nursing staff. 42 CFR § 483.30
Minnesota Rule 4658.0105 Competency
A nursing home must ensure that direct care staff are able to demonstrate competency in skills and techniques necessary to care for residents’ needs, as identified through the comprehensive resident assessments and described in the comprehensive plan of care, and are able to perform their assigned duties.
Minnesota Rule 4658.0510 Nursing Personnel
Subpart 1. Staffing requirements.
A nursing home must have on duty at all times a sufficient number of qualified nursing personnel, including registered nurses, licensed practical nurses, and nursing assistants to meet the needs of the residents at all nurses’ stations, on all floors, and in all buildings if more than one building is involved. This includes relief duty, weekends, and vacation replacements.
Subp. 2. Minimum hour requirements.
The minimum number of hours of nursing personnel to be provided is:
A. For nursing homes not certified to participate in the medical assistance program, a minimum of two hours of nursing personnel per resident per 24 hours.

• Minnesota Rule 4658.0710 Admission Orders and Physical Evaluations
Subpart 1. Physical examination.
A resident must have a current admission medical history and complete physical examination performed and recorded by a physician, physician assistant, or nurse practitioner within five days before or within seven days after admission.
Subp. 2. Admission orders.
A nursing home must have physician orders for a resident’s admission and immediate care at the time of admission.
Subp. 3. Frequency of physician evaluations.
A. A resident must be evaluated by a physician at least once every 30 days for the first 90 days after admission, and then whenever medically necessary. A physician visit is considered timely if it occurs within ten days after the date the visit was required.
B. Except as provided in this item, all required physician visits must be made by the physician personally. At the option of the physician, required visits after the initial visit may alternate between personal visits by the physician and visits by a physician assistant or nurse practitioner.
Subp. 4. Physician visits.
At each visit, a physician or physician’s designee must:
A. review the resident’s comprehensive plan of care, including medications and treatments, and progress notes;
B. write, sign, and date physician progress notes; and
C. sign and date all orders.

• Conduct initially a comprehensive and accurate assessment of each resident’s functional capacity. Resident assessment. 42 CFR § 483.20
The facility must conduct initially and periodically a comprehensive, accurate,
standardized, reproducible assessment of each resident’s functional capacity. (a) Admission orders. At the time each resident is admitted, the facility must have
physician orders for the resident’s immediate care.
(b) Comprehensive assessments—(1) Resident assessment instrument. A facility must make a comprehensive assessment of a resident’s needs, using the resident assessment instrument (RAI) specified by the State.

• Develop a comprehensive care plan for each resident. 42 CFR § 483.20 (k) and Minnesota Rule 4658.0405, Subpart 1(k) Comprehensive care plans.
(1) The facility must develop a comprehensive care plan for each resident that includes measurable objectives and timetables to meet a resident’s medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment. The care plan must describe the following—

Minnesota Rule 4658.0405, Subpart 1, requires that “a nursing home must develop a comprehensive plan of care for each resident within seven days after the completion of the comprehensive resident assessment as defined in part 4658.0400”. The comprehensive plan of care must be developed by an interdisciplinary team that includes the attending physician, a registered nurse with responsibility for the resident, and other appropriate staff in disciplines as determined by the resident’s needs, and, to the extent practicable, with the participation of the resident, the resident’s legal guardian or chosen representative.

• Ensure that residents do not develop pressure sores and, if a resident has pressure sores, provide the necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing. 42 CFR §483.25(c)
(c) Pressure sores. Based on the comprehensive assessment of a resident, the facility must ensure that—
(1) A resident who enters the facility without pressure sores does not develop pressure sores unless the individual’s clinical condition demonstrates that they were unavoidable; and
(2) A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.

• Provide appropriate treatment and services to incontinent residents to restore as much normal bladder functioning as possible. 42 CFR §483.25 (d)
(d) Urinary Incontinence. Based on the resident’s comprehensive assessment, the facility must ensure that—
(1) A resident who enters the facility without an indwelling catheter is not catheterized unless the resident’s clinical condition demonstrates that catheterization was necessary; and
(2) A resident who is incontinent of bladder receives appropriate treatment and services to prevent urinary tract infections and to restore as much normal bladder function as possible.

• Ensure that the resident receives adequate supervision and assistive devices to prevent accidents. 42 CFR §483.25 (h)
(h) Accidents. The facility must ensure that—
(1) The resident environment remains as free of accident hazards as is possible; and
(2) Each resident receives adequate supervision and assistance devices to prevent accidents.

• Maintain acceptable parameters of nutritional status. 42 CFR §483.25 (i)
(i) Nutrition. Based on a resident’s comprehensive assessment, the facility must ensure that a resident—
(1) Maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident’s clinical condition demonstrates that this is not possible; and
(2) Receives a therapeutic diet when there is a nutritional problem.

• Provide each resident with sufficient fluid intake to maintain proper hydration and health. 42 CFR § 483.25 (j)
(j) Hydration. The facility must provide each resident with sufficient fluid intake to maintain proper hydration and health.

• Ensure that residents are free of any significant medication errors. 42 CFR §483.25 (m) and Minnesota Rule 4658.1320.
42 CFR § 483.25 (m) Medication Errors. The facility must ensure that—
(1) It is free of medication error rates of five percent or greater; and
(2) Residents are free of any significant medication errors.

• Specialized rehabilitative services. 42 CFR § 483.45
(a) Provision of services. If specialized rehabilitative services
such as but not limited to physical therapy, speech-language pathology,
occupational therapy, and mental health rehabilitative services for
mental illness and mental retardation, are required in the resident’s
comprehensive plan of care, the facility must–
(1) Provide the required services; or
(2) Obtain the required services from an outside resource (in
accordance with Sec. 483.75(h) of this part) from a provider of
specialized rehabilitative services.
(b) Qualifications. Specialized rehabilitative services must be
provided under the written order of a physician by qualified personnel.

• Dental services.
The facility must assist residents in obtaining routine and 24-hour emergency dental care. 42 CFR § 483.55

Minnesota Rule 4658.0720 Providing Daily Oral Care
Subpart 1. Daily oral care plan.
A nursing home must establish a daily oral care plan for each resident consistent with the results of the comprehensive resident assessment.

• Pharmacy services. 42 CFR § 483.60
The facility must provide routine and emergency drugs and biologicals to its residents, or obtain them under an agreement described in Sec. 483.75(h) of this part. The facility may permit unlicensed personnel to administer drugs if State law permits, but only under the general supervision of a licensed nurse.

• Infection control. 42 CFR § 483.65
The facility must establish and maintain an infection control program designed to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of disease and infection.

• Physical environment. 42 CFR § 483.70
The facility must be designed, constructed, equipped, and maintained to protect the health and safety of residents, personnel and the public.

• Administration. 42 CFR § 483.75
A facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.
(a) Licensure. A facility must be licensed under applicable State
and local law.
(b) Compliance with Federal, State, and local laws and professional
standards. The facility must operate and provide services in compliance
with all applicable Federal, State, and local laws, regulations, and
codes, and with accepted professional standards and principles that
apply to professionals providing services in such a facility.
(c) Relationship to other HHS regulations. In addition to compliance
with the regulations set forth in this subpart, facilities are obliged
to meet the applicable provisions of other HHS regulations, including
but not limited to those pertaining to nondiscrimination on the basis of
race, color, or national origin (45 CFR part 80); nondiscrimination on
the basis of handicap (45 CFR part 84); nondiscrimination on the basis
of age (45 CFR part 91); protection of human subjects of research (45
CFR part 46); and fraud and abuse (42 CFR part 455). Although these
Regulations.

Minnesota Rule 4658.0015 Compliance with Regulations and Standards.
A nursing home must operate and provide services in compliance with all applicable federal, state, and local laws, regulations, and codes, and with accepted professional standards and principles that apply to professionals providing services in a nursing home.

• Minnesota Rule 4658.0705 Medical Care and Treatment
Subpart 1. Physician supervision.
A nursing home must ensure that each resident has a physician designated to authorize and supervise the medical care and treatment of the resident during the resident’s stay in the nursing home, and must ensure that another physician is available to supervise the resident’s medical care when the attending physician is unavailable.
Subp. 2. Availability of physicians for emergency and advisory care.
A. A nursing home must provide or arrange for the provision of physician services 24 hours a day, in case of an emergency, and to act in an advisory capacity.
B. The name and telephone number of the emergency physician must be readily available at all times.
C. A nursing home must develop and maintain policies and procedures regarding obtaining medical intervention when the resident’s attending physician or the emergency physician does not respond to a request for medical care or is not available in a timely manner.

• Minnesota Statute 4658.0140, Subpart 1. Type of Admission
Selection of residents.
The administrator, in cooperation with the director of nursing services and the medical director, is responsible for the admission of residents to the home according to the admission policies of the nursing home.
Subp. 2.
Residents not accepted.
Unless otherwise provided by law, including laws against discrimination, residents must not be admitted or retained for whom care cannot be provided in keeping with their known physical, mental, or behavioral condition. Prospective residents who are denied admission must be informed of the reason for the denial of their admission.

• Minnesota Administrative Rule 4658.0145 Agreement as to Rates and Charges
Subpart 1. Written agreement.
At the time of admission, there must be a written agreement between the nursing home and the resident, the resident’s agent, or the resident’s guardian, which includes:
A. the base rate and what services and items are provided by the nursing home and are included in that base rate;
B. extra charges for care or services;
C. obligations concerning payment of the rates and charges; and
D. the refund policy of the home.
All residents’ bills must be itemized for services rendered.
Subp. 2. Notification of rates and charges.
Annually, and when there is any change, a nursing home must inform the resident of services available in the nursing home and of charges for those services, including any charges for services not covered under Medicare or Medicaid or by the nursing home’s per diem rate. A nursing home must inform the resident or the resident’s agent or guardian before any change in the charges for services not covered under Medicare or Medicaid or by the nursing home’s per diem rate.

• Minnesota Administrative Rule 4658.0135 Policy Records.
Subpart 1. Availability of policies.
All policies and procedures directly related to resident care adopted by the home must be placed on file and be made available upon request to nursing home personnel, residents, legal representatives, and designated representatives.
Subp. 2. Admission policies.
Admission policies must be made available upon request to prospective residents, family members, legal representatives, and designated representatives.

• Minnesota Administrative Rule 4658.0110 Incident and Accident Reporting
All persons providing services in a nursing home must report any accident or injury to a resident, and the nursing home must immediately complete a detailed incident report of the accident or injury and the action taken after learning of the accident or injury.

• Minnesota Rule 4658.0900 Activity and Recreation Program
Subpart 1. General requirements.
A nursing home must provide an organized activity and recreation program. The program must be based on each individual resident’s interests, strengths, and needs, and must be designed to meet the physical, mental, and psychological well-being of each resident, as determined by the comprehensive resident assessment and comprehensive plan of care….

This website is not intended to provide legal advice as each situation is different and specific factual information must be obtained before an attorney is able to assess the legal questions relevant to your situation.

If you or a loved one has suffered an injury or abuse in a nursing home or other care facility that serves the elderly in Minnesota please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member. To contact Attorney Kenneth L. LaBore, directly please send an email to klabore@prslegal.com, or call Ken at 612-743-9048.





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