Journal of the House - 42nd Day - Friday, April 26, 2019 - Top of Page 4615

STATE OF MINNESOTA

 

Journal of the House

 

NINETY-FIRST SESSION - 2019

 

_____________________

 

FORTY-SECOND DAY

 

Saint Paul, Minnesota, Friday, April 26, 2019

 

 

      The House of Representatives convened at 9:00 a.m. and was called to order by Liz Olson, Speaker pro tempore.

 

      Prayer was offered by the Reverend Ashley Bair, Central Presbyterian Church, St. Paul, Minnesota.

 

      The members of the House gave the pledge of allegiance to the flag of the United States of America.

 

      The roll was called and the following members were present:

 


Acomb

Albright

Anderson

Bahner

Bahr

Baker

Becker-Finn

Bennett

Bernardy

Bierman

Boe

Brand

Cantrell

Carlson, A.

Carlson, L.

Christensen

Claflin

Considine

Daniels

Davids

Davnie

Dehn

Dettmer

Drazkowski

Ecklund

Edelson

Elkins

Erickson

Fabian

Fischer

Franson

Freiberg

Gomez

Green

Grossell

Gruenhagen

Gunther

Haley

Halverson

Hamilton

Hansen

Hausman

Heinrich

Heintzeman

Her

Hornstein

Howard

Huot

Johnson

Jurgens

Kiel

Klevorn

Koegel

Kotyza-Witthuhn

Koznick

Kresha

Kunesh-Podein

Layman

Lee

Lesch

Liebling

Lien

Lillie

Lippert

Lislegard

Loeffler

Long

Lucero

Lueck

Mann

Mariani

Marquart

Masin

McDonald

Mekeland

Miller

Moller

Morrison

Munson

Murphy

Nash

Nelson, M.

Nelson, N.

Neu

Noor

Nornes

O'Driscoll

Olson

O'Neill

Persell

Petersburg

Pierson

Pinto

Poppe

Poston

Pryor

Quam

Richardson

Robbins

Runbeck

Sandell

Sandstede

Sauke

Schomacker

Schultz

Scott

Stephenson

Sundin

Tabke

Theis

Torkelson

Urdahl

Vang

Vogel

Wagenius

Wazlawik

West

Winkler

Wolgamott

Xiong, J.

Xiong, T.

Youakim

Zerwas

Spk. Hortman


 

      A quorum was present.

 

      Demuth, Garofalo, Moran and Swedzinski were excused.

 

      Hassan and Pelowski were excused until 10 a.m.  Mahoney was excused until 11:10 a.m.  Daudt was excused until 1:05 p.m. 

 

      The Chief Clerk proceeded to read the Journal of the preceding day.  There being no objection, further reading of the Journal was dispensed with and the Journal was approved as corrected by the Chief Clerk.


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REPORTS OF CHIEF CLERK

 

      S. F. No. 2227 and H. F. No. 1935, which had been referred to the Chief Clerk for comparison, were examined and found to be not identical.

 

      Nelson, M., moved that S. F. No. 2227 be substituted for H. F. No. 1935 and that the House File be indefinitely postponed.  The motion prevailed.

 

 

REPORTS OF STANDING COMMITTEES AND DIVISIONS

 

 

Carlson, L., from the Committee on Ways and Means to which was referred:

 

H. F. No. 6, A bill for an act relating to employment; prohibiting wage theft; modifying payment of wages; increasing civil and criminal penalties; allowing for administrative review; appropriating money; amending Minnesota Statutes 2018, sections 177.27, subdivision 2, by adding a subdivision; 177.30; 177.32, subdivision 1; 181.03, subdivision 1, by adding subdivisions; 181.032; 181.101.

 

Reported the same back with the following amendments:

 

Delete everything after the enacting clause and insert:

 

"Section 1.  Minnesota Statutes 2018, section 16C.285, subdivision 3, is amended to read:

 

Subd. 3.  Minimum criteria.  "Responsible contractor" means a contractor that conforms to the responsibility requirements in the solicitation document for its portion of the work on the project and verifies that it meets the following minimum criteria:

 

(1) the contractor:

 

(i) is in compliance with workers' compensation and unemployment insurance requirements;

 

(ii) is in compliance with Department of Revenue and Department of Employment and Economic Development registration requirements if it has employees;

 

(iii) has a valid federal tax identification number or a valid Social Security number if an individual; and

 

(iv) has filed a certificate of authority to transact business in Minnesota with the secretary of state if a foreign corporation or cooperative;

 

(2) the contractor or related entity is in compliance with and, during the three-year period before submitting the verification, has not violated section 177.24, 177.25, 177.41 to 177.44, 181.03, 181.101, 181.13, 181.14, or 181.722, and has not violated United States Code, title 29, sections 201 to 219, or United States Code, title 40, sections 3141 to 3148.  For purposes of this clause, a violation occurs when a contractor or related entity:

 

(i) repeatedly fails to pay statutorily required wages or penalties on one or more separate projects for a total underpayment of $25,000 or more within the three-year period, provided that a failure to pay is "repeated" only if it involves two or more separate and distinct occurrences of underpayment during the three-year period;

 

(ii) has been issued an order to comply by the commissioner of labor and industry that has become final;


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(iii) has been issued at least two determination letters within the three-year period by the Department of Transportation finding an underpayment by the contractor or related entity to its own employees;

 

(iv) has been found by the commissioner of labor and industry to have repeatedly or willfully violated any of the sections referenced in this clause pursuant to section 177.27;

 

(v) has been issued a ruling or findings of underpayment by the administrator of the Wage and Hour Division of the United States Department of Labor that have become final or have been upheld by an administrative law judge or the Administrative Review Board; or

 

(vi) has been found liable for underpayment of wages or penalties or misrepresenting a construction worker as an independent contractor in an action brought in a court having jurisdiction; or

 

(vii) has been convicted of a violation of section 609.52, subdivision 2, clause (19).

 

Provided that, if the contractor or related entity contests a determination of underpayment by the Department of Transportation in a contested case proceeding, a violation does not occur until the contested case proceeding has concluded with a determination that the contractor or related entity underpaid wages or penalties;

 

(3) the contractor or related entity is in compliance with and, during the three-year period before submitting the verification, has not violated section 181.723 or chapter 326B.  For purposes of this clause, a violation occurs when a contractor or related entity has been issued a final administrative or licensing order;

 

(4) the contractor or related entity has not, more than twice during the three-year period before submitting the verification, had a certificate of compliance under section 363A.36 revoked or suspended based on the provisions of section 363A.36, with the revocation or suspension becoming final because it was upheld by the Office of Administrative Hearings or was not appealed to the office;

 

(5) the contractor or related entity has not received a final determination assessing a monetary sanction from the Department of Administration or Transportation for failure to meet targeted group business, disadvantaged business enterprise, or veteran-owned business goals, due to a lack of good faith effort, more than once during the three-year period before submitting the verification;

 

(6) the contractor or related entity is not currently suspended or debarred by the federal government or the state of Minnesota or any of its departments, commissions, agencies, or political subdivisions that have authority to debar a contractor; and

 

(7) all subcontractors and motor carriers that the contractor intends to use to perform project work have verified to the contractor through a signed statement under oath by an owner or officer that they meet the minimum criteria listed in clauses (1) to (6).

 

Any violations, suspensions, revocations, or sanctions, as defined in clauses (2) to (5), occurring prior to July 1, 2014, shall not be considered in determining whether a contractor or related entity meets the minimum criteria.

 

Sec. 2.  Minnesota Statutes 2018, section 177.27, is amended by adding a subdivision to read:

 

Subd. 1a.  Authority to investigate.  To carry out the purposes of this chapter and chapters 181, 181A, and 184, and utilizing the enforcement authority of section 175.20, the commissioner is authorized to enter the places of business and employment of any employer in the state to investigate wages, hours, and other conditions and practices of work, collect evidence, and conduct interviews.  The commissioner is authorized to enter the places of business and employment during working hours and without delay.  The commissioner may use investigation


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methods that include but are not limited to examination, surveillance, transcription, copying, scanning, photographing, audio or video recording, testing, and sampling along with taking custody of evidence.  Evidence that may be collected includes but is not limited to documents, records, books, registers, payrolls, electronically and digitally stored information, machinery, equipment, tools, and other tangible items that in any way relate to wages, hours, and other conditions and practices of work.  The commissioner may privately interview any individual, including owners, employers, operators, agents, workers, and other individuals who may have knowledge of the conditions and practices of work under investigation.

 

Sec. 3.  Minnesota Statutes 2018, section 177.27, subdivision 2, is amended to read:

 

Subd. 2.  Submission of records; penalty.  The commissioner may require the employer of employees working in the state to submit to the commissioner photocopies, certified copies, or, if necessary, the originals of employment records which the commissioner deems necessary or appropriate.  The records which may be required include full and correct statements in writing, including sworn statements by the employer, containing information relating to wages, hours, names, addresses, and any other information pertaining to the employer's employees and the conditions of their employment as the commissioner deems necessary or appropriate.

 

The commissioner may require the records to be submitted by certified mail delivery or, if necessary, by personal delivery by the employer or a representative of the employer, as authorized by the employer in writing.

 

The commissioner may fine the employer up to $1,000 for each failure to submit or deliver records as required by this section, and up to $10,000 for each repeated failure.  This penalty is in addition to any penalties provided under section 177.32, subdivision 1.  In determining the amount of a civil penalty under this subdivision, the appropriateness of such penalty to the size of the employer's business and the gravity of the violation shall be considered.

 

Sec. 4.  Minnesota Statutes 2018, section 177.27, is amended by adding a subdivision to read:

 

Subd. 11.  Subpoenas.  In order to carry out the purposes of this chapter and chapter 181, 181A, or 184, the commissioner may issue subpoenas to compel persons to appear before the commissioner to give testimony and produce and permit inspection, copying, testing, or sampling of documents, electronically stored information, tangible items, or other items in the possession, custody, or control of that person that are deemed necessary or appropriate by the commissioner.  A subpoena may specify the form or format in which electronically stored information is to be produced.  Upon the application of the commissioner, a district court shall treat the failure of any person to obey a subpoena lawfully issued by the commissioner under this subdivision as a contempt of court.

 

Sec. 5.  Minnesota Statutes 2018, section 177.27, is amended by adding a subdivision to read:

 

Subd. 12.  Court orders for entrance and inspection.  To carry out the purposes of this chapter and chapters 181, 181A, and 184, and utilizing the enforcement authority of section 175.20, the commissioner is authorized to enter places of business and employment of any employer in the state to investigate wages, hours, and other conditions and practices of work, collect evidence, and conduct interviews.  The commissioner is authorized to enter the places of business and employment during working hours and without delay.  Upon the anticipated refusal based on a refusal to permit entrance on a prior occasion or actual refusal of an employer, owner, operator, or agent in charge of an employer's place of business or employment, the commissioner may apply for an order in the district court in the county in which the place of business or employment is located, to compel an employer, owner, operator, or agent in charge of the place of business or employment to permit the commissioner entry to investigate wages, hours, and other conditions and practices of work, collect evidence, and interview witnesses.


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Sec. 6.  Minnesota Statutes 2018, section 177.27, is amended by adding a subdivision to read:

 

Subd. 13.  State licensing or regulatory power.  In the case of an employer which is subject to the licensing or regulatory power of the state or any political subdivision or agency thereof, if the commissioner issues an order to comply under subdivision 4, the commissioner may provide the licensing or regulatory agency a copy of the order to comply.  Unless the order to comply is reversed in the course of administrative or judicial review, the order to comply is binding on the agency and the agency may take appropriate action, including action related to the eligibility, renewal, suspension, or revocation of a license or certificate of public convenience and necessity if the agency is otherwise authorized to take such action.

 

Sec. 7.  Minnesota Statutes 2018, section 177.27, is amended by adding a subdivision to read:

 

Subd. 14.  Public contracts.  In the case of an employer that is a party to a public contract, if the commissioner issues an order to comply under subdivision 4, the commissioner may provide a copy of the order to comply to the contract letting agency.  Unless the order to comply is reversed in the course of administrative or judicial review, an order to comply is binding on the contract letting agency and the agency may take appropriate administrative action, including the imposition of financial penalties and eligibility for, termination or nonrenewal of a contract, in whole or in part, if the agency is otherwise authorized to take the action.

 

Sec. 8.  Minnesota Statutes 2018, section 177.27, is amended by adding a subdivision to read:

 

Subd. 15.  Notice to employees of compliance orders and citations.  In a compliance order or citation issued under this chapter and chapters 181, 181A, and 184, the commissioner may require that the provisions of a compliance order or citation setting out the violations found by the commissioner and any subsequent document setting out the resolution of the compliance order or citation through settlement agreement or other final disposition, upon receipt by the employer, be made available for review by the employees of the employer using the means the employer uses to provide other work-related notices to the employer's employees.  The means used by the employer must be at least as effective as the following options for providing notice:  (1) posting a copy of the compliance order or citation at each location where employees perform work and where the notice must be readily observed and easily reviewed by all employees performing work; or (2) providing a paper or electronic copy of the compliance order or citation to employees.  Each citation and proposed penalty shall be posted or made available to employees for a minimum period of 20 days.  Upon issuance of a compliance order or citation to an employer, the commissioner may also provide the provisions of the compliance order or citation setting out the violations found by the commissioner and any resolution of a compliance order or citation through settlement agreement or other final disposition to the employer's employees who may be affected by the order or citation and how the order or citation and resolution may affect their interests.

 

Sec. 9.  Minnesota Statutes 2018, section 177.30, is amended to read:

 

177.30 KEEPING RECORDS; PENALTY.

 

(a) Every employer subject to sections 177.21 to 177.44 must make and keep a record of:

 

(1) the name, address, and occupation of each employee;

 

(2) the rate of pay, and the amount paid each pay period to each employee, including whether each employee is paid by the hour, shift, day, week, salary, piece, commission, or other;

 

(3) the hours worked each day and each workweek by the employee, including for all employees paid at piece rate, the number of pieces completed at each piece rate;


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(4) any personnel policies provided to employees;

 

(5) a copy of the notice provided to each employee as required by section 181.032, paragraph (d);

 

(6) for each employer subject to sections 177.41 to 177.44, and while performing work on public works projects funded in whole or in part with state funds, the employer shall furnish under oath signed by an owner or officer of an employer to the contracting authority and the project owner every two weeks, a certified payroll report with respect to the wages and benefits paid each employee during the preceding weeks specifying for each employee:  name; identifying number; prevailing wage master job classification; hours worked each day; total hours; rate of pay; gross amount earned; each deduction for taxes; total deductions; net pay for week; dollars contributed per hour for each benefit, including name and address of administrator; benefit account number; and telephone number for health and welfare, vacation or holiday, apprenticeship training, pension, and other benefit programs; and

 

(5) (7) other information the commissioner finds necessary and appropriate to enforce sections 177.21 to 177.435.  The records must be kept for three years in or near the premises where an employee works except each employer subject to sections 177.41 to 177.44, and while performing work on public works projects funded in whole or in part with state funds, the records must be kept for three years after the contracting authority has made final payment on the public works project.

 

(b) All records required to be kept under paragraph (a) must be readily available for inspection by the commissioner upon demand.  The records must be either kept at the place where employees are working or kept in a manner that allows the employer to comply with this paragraph within 24 hours.

 

(c) The commissioner may fine an employer up to $1,000 for each failure to maintain records as required by this section, and up to $10,000 for each repeated failure.  This penalty is in addition to any penalties provided under section 177.32, subdivision 1.  In determining the amount of a civil penalty under this subdivision, the appropriateness of such penalty to the size of the employer's business and the gravity of the violation shall be considered.

 

(d) If the records maintained by the employer do not provide sufficient information to determine the exact amount of back wages due an employee, the commissioner may make a determination of wages due based on available evidence.

 

Sec. 10.  Minnesota Statutes 2018, section 177.32, subdivision 1, is amended to read:

 

Subdivision 1.  Misdemeanors.  (a) An employer who does any of the following is guilty of a misdemeanor:

 

(1) hinders or delays the commissioner in the performance of duties required under sections 177.21 to 177.435, or chapter 181;

 

(2) refuses to admit the commissioner to the place of business or employment of the employer, as required by section 177.27, subdivision 1;

 

(3) repeatedly fails to make, keep, and preserve records as required by section 177.30;

 

(4) falsifies any record;

 

(5) refuses to make any record available, or to furnish a sworn statement of the record or any other information as required by section 177.27;


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(6) repeatedly fails to post a summary of sections 177.21 to 177.44 or a copy or summary of the applicable rules as required by section 177.31;

 

(7) pays or agrees to pay wages at a rate less than the rate required under sections 177.21 to 177.44, or described and provided by an employer to its employees under section 181.032;

 

(8) refuses to allow adequate time from work as required by section 177.253; or

 

(9) otherwise violates any provision of sections 177.21 to 177.44, or commits wage theft as described in section 181.03, subdivision 1.

 

Intent is not an element of a misdemeanor under this paragraph.

 

(b) An employer is guilty of a gross misdemeanor if the employer is found to have intentionally retaliated against an employee for asserting rights or remedies under sections 177.21 to 177.44 or section 181.03.

 

Sec. 11.  [177.45] ENFORCEMENT; REMEDIES.

 

Subdivision 1.  Public enforcement.  In addition to the enforcement of this chapter by the department, the attorney general may enforce this chapter under section 8.31.

 

Subd. 2.  Remedies cumulative.  The remedies provided in this chapter are cumulative and do not restrict any remedy that is otherwise available, including remedies provided under section 8.31.  The remedies available under this section are not exclusive and are in addition to any other requirements, rights, remedies, and penalties provided by law.

 

Sec. 12.  Minnesota Statutes 2018, section 181.03, subdivision 1, is amended to read:

 

Subdivision 1.  Prohibited practices.  An employer may not, directly or indirectly and with intent to defraud:  (a) No employer shall commit wage theft.

 

(b) For purposes of this section, wage theft is committed if:

 

(1) cause an employer has failed to pay an employee all wages, salary, gratuities, earnings, or commissions at the employee's rate or rates of pay or at the rate or rates required by law, including any applicable statute, regulation, rule, ordinance, government resolution or policy, contract, or other legal authority, whichever rate of pay is greater;

 

(2) an employer directly or indirectly causes any employee to give a receipt for wages for a greater amount than that actually paid to the employee for services rendered;

 

(2) (3) an employer directly or indirectly demand demands or receive receives from any employee any rebate or refund from the wages owed the employee under contract of employment with the employer; or

 

(3) (4) an employer in any manner make makes or attempt attempts to make it appear that the wages paid to any employee were greater than the amount actually paid to the employee.

 

Sec. 13.  Minnesota Statutes 2018, section 181.03, is amended by adding a subdivision to read:

 

Subd. 4.  Enforcement.  The use of an enforcement provision in this section shall not preclude the use of any other enforcement provision provided by law.


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Sec. 14.  Minnesota Statutes 2018, section 181.03, is amended by adding a subdivision to read:

 

Subd. 5.  Citations.  (a) In addition to other remedies and penalties provided by this chapter and chapter 177, the commissioner may issue a citation for a civil penalty of up to $1,000 for any wage theft of up to $1,000 by serving the citation on the employer.  The citation may direct the employer to pay employees in a manner prescribed by the commissioner any wages, salary, gratuities, earnings, or commissions owed to the employee within 15 days of service of the citation on the employer.  The commissioner shall serve the citation upon the employer or the employer's authorized representative in person or by certified mail at the employer's place of business or registered office address with the secretary of state.  The citation shall require the employer to correct the violation and cease and desist from committing the violation.

 

(b) In determining the amount of the civil penalty, the commissioner shall consider the size of the employer's business and the gravity of the violation as provided in section 14.045, subdivision 3, paragraph (a).  If the citation includes a penalty assessment, the penalty is due and payable on the date the citation becomes final.  The commissioner may vacate the citation if the employer pays the amount of wages, salaries, commissions, earnings, and gratuities due in the citation within five days after the citation is served on the employer.

 

Sec. 15.  Minnesota Statutes 2018, section 181.03, is amended by adding a subdivision to read:

 

Subd. 6.  Administrative review.  Within 15 days after the commissioner of labor and industry issues a citation under subdivision 5, the employer to whom the citation is issued may request an expedited hearing to review the citation.  The request for hearing must be in writing and must be served on the commissioner at the address specified in the citation.  If the employer does not request a hearing or if the employer's written request for hearing is not served on the commissioner by the 15th day after the commissioner issues the citation, the citation becomes a final order of the commissioner and is not subject to review by any court or agency.  The hearing request must state the reasons for seeking review of the citation.  The employer to whom the citation is issued and the commissioner are the parties to the expedited hearing.  The commissioner must notify the employer to whom the citation is issued of the time and place of the hearing at least 15 days before the hearing.  The hearing shall be conducted under Minnesota Rules, parts 1400.8510 to 1400.8612, as modified by this section.  If a hearing has been held, the commissioner shall not issue a final order until at least five days after the date of the administrative law judge's report.  Any person aggrieved by the administrative law judge's report may, within those five days, serve written comments to the commissioner on the report and the commissioner shall consider and enter the comments in the record.  The commissioner's final order shall comply with sections 14.61, subdivision 2, and 14.62, subdivisions 1 and 2a, and may be appealed in the manner provided in sections 14.63 to 14.69.

 

Sec. 16.  Minnesota Statutes 2018, section 181.03, is amended by adding a subdivision to read:

 

Subd. 7.  Effect on other laws.  Nothing in this section shall be construed to limit the application of other state or federal laws.

 

Sec. 17.  Minnesota Statutes 2018, section 181.03, is amended by adding a subdivision to read:

 

Subd. 8.  Retaliation.  An employer must not retaliate against an employee for asserting rights or remedies under this section, including but not limited to filing a complaint with the Department of Labor and Industry or telling the employer of intention to file a complaint.  A rebuttable presumption of unlawful retaliation under this section exists whenever an employer takes adverse action against an employee within 90 days of the employee asserting rights or remedies under this section.


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Sec. 18.  Minnesota Statutes 2018, section 181.032, is amended to read:

 

181.032 REQUIRED STATEMENT OF EARNINGS BY EMPLOYER; NOTICE TO EMPLOYEE.

 

(a) At the end of each pay period, the employer shall provide each employee an earnings statement, either in writing or by electronic means, covering that pay period.  An employer who chooses to provide an earnings statement by electronic means must provide employee access to an employer-owned computer during an employee's regular working hours to review and print earnings statements.

 

(b) The earnings statement may be in any form determined by the employer but must include:

 

(1) the name of the employee;

 

(2) the hourly rate or rates of pay (if applicable) and basis thereof, including whether the employee is paid by hour, shift, day, week, salary, piece, commission, or other method;

 

(3) allowances, if any, claimed pursuant to permitted meals and lodging;

 

(4) the total number of hours worked by the employee unless exempt from chapter 177;

 

(4) (5) the total amount of gross pay earned by the employee during that period;

 

(5) (6) a list of deductions made from the employee's pay;

 

(6) (7) the net amount of pay after all deductions are made;

 

(7) (8) the date on which the pay period ends; and

 

(8) (9) the legal name of the employer and the operating name of the employer if different from the legal name.;

 

(10) the physical address of the employer's main office or principal place of business, and a mailing address if different; and

 

(11) the telephone number of the employer.

 

(c) An employer must provide earnings statements to an employee in writing, rather than by electronic means, if the employer has received at least 24 hours notice from an employee that the employee would like to receive earnings statements in written form.  Once an employer has received notice from an employee that the employee would like to receive earnings statements in written form, the employer must comply with that request on an ongoing basis.

 

(d) At the start of employment, an employer shall provide each employee a written notice containing the following information:

 

(1) the rate or rates of pay and basis thereof, including whether the employee is paid by the hour, shift, day, week, salary, piece, commission, or other method, and the specific application of any additional rates;

 

(2) allowances, if any, claimed pursuant to permitted meals and lodging;

 

(3) paid vacation, sick time, or other paid time off accruals and terms of use;


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(4) the employee's employment status and whether the employee is exempt from minimum wage, overtime, and other provisions of chapter 177, and on what basis;

 

(5) a list of deductions that may be made from the employee's pay;

 

(6) the dates on which the pay periods start and end and the regularly scheduled payday;

 

(7) the legal name of the employer and the operating name of the employer if different from the legal name;

 

(8) the physical address of the employer's main office or principal place of business, and a mailing address if different; and

 

(9) the telephone number of the employer.

 

(e) The employer must keep a copy of the notice under paragraph (d) signed by each employee acknowledging receipt of the notice.  The notice must be provided to each employee in English and in the employee's native language.

 

(f) An employer must provide the employee any written changes to the information contained in the notice under paragraph (d) at least seven calendar days prior to the time the changes take effect.  The changes must be signed by the employee before the changes go into effect.  The employer must keep a signed copy of all notice of changes as well as the initial notices under paragraph (d).

 

Sec. 19.  Minnesota Statutes 2018, section 181.101, is amended to read:

 

181.101 WAGES; HOW OFTEN PAID.

 

(a) Except as provided in paragraph (b), every employer must pay all wages earned by an employee at least once every 31 16 days on a regular payday designated in advance by the employer regardless of whether the employee requests payment at longer intervals.  Unless paid earlier, the wages earned during the first half of the first 31-day pay period become due on the first regular payday following the first day of work.  An employer's pay period must be no longer than 16 days.  All wages earned in a pay period must be paid to an employee within 16 days of the end of that pay period.  If wages earned are not paid, the commissioner of labor and industry or the commissioner's representative may serve a demand for payment on behalf of an employee.  If payment is not made within ten five days of service of the demand, the commissioner may charge and collect the wages earned and a penalty liquidated damages in the amount of the employee's average daily earnings at the employee's rate agreed upon in the contract of employment or rates of pay or at the rate or rates required by law, including any applicable statute, regulation, rule, ordinance, government resolution or policy, contract, or other legal authority, whichever rate of pay is greater, not exceeding 15 days in all, for each day beyond the ten-day five-day limit following the demand.  Money collected by the commissioner must be paid to the employee concerned.  This section does not prevent an employee from prosecuting a claim for wages.  This section does not prevent a school district, other public school entity, or other school, as defined under section 120A.22, from paying any wages earned by its employees during a school year on regular paydays in the manner provided by an applicable contract or collective bargaining agreement, or a personnel policy adopted by the governing board.  For purposes of this section, "employee" includes a person who performs agricultural labor as defined in section 181.85, subdivision 2.  For purposes of this section, wages are earned on the day an employee works.

 

(b) An employer of a volunteer firefighter, as defined in section 424A.001, subdivision 10, a member of an organized first responder squad that is formally recognized by a political subdivision in the state, or a volunteer ambulance driver or attendant must pay all wages earned by the volunteer firefighter, first responder, or volunteer ambulance driver or attendant at least once every 31 days, unless the employer and the employee mutually agree upon payment at longer intervals.


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Sec. 20.  [181.1721] ENFORCEMENT; REMEDIES.

 

Subdivision 1.  Public enforcement.  In addition to the enforcement of this chapter by the department, the attorney general may enforce this chapter under section 8.31.

 

Subd. 2.  Remedies cumulative.  The remedies provided in this chapter are cumulative and do not restrict any remedy that is otherwise available, including remedies provided under section 8.31.  The remedies available under this section are not exclusive and are in addition to any other requirements, rights, remedies, and penalties provided by law.

 

Sec. 21.  Minnesota Statutes 2018, section 609.52, subdivision 1, is amended to read:

 

Subdivision 1.  Definitions.  In this section:

 

(1) "Property" means all forms of tangible property, whether real or personal, without limitation including documents of value, electricity, gas, water, corpses, domestic animals, dogs, pets, fowl, and heat supplied by pipe or conduit by municipalities or public utility companies and articles, as defined in clause (4), representing trade secrets, which articles shall be deemed for the purposes of Extra Session Laws 1967, chapter 15 to include any trade secret represented by the article.

 

(2) "Movable property" is property whose physical location can be changed, including without limitation things growing on, affixed to, or found in land.

 

(3) "Value" means the retail market value at the time of the theft, or if the retail market value cannot be ascertained, the cost of replacement of the property within a reasonable time after the theft, or in the case of a theft or the making of a copy of an article representing a trade secret, where the retail market value or replacement cost cannot be ascertained, any reasonable value representing the damage to the owner which the owner has suffered by reason of losing an advantage over those who do not know of or use the trade secret.  For a check, draft, or other order for the payment of money, "value" means the amount of money promised or ordered to be paid under the terms of the check, draft, or other order.  For a theft committed within the meaning of subdivision 2, clause (5), items (i) and (ii), if the property has been restored to the owner, "value" means the value of the use of the property or the damage which it sustained, whichever is greater, while the owner was deprived of its possession, but not exceeding the value otherwise provided herein.  For a theft committed within the meaning of subdivision 2, clause (9), if the property has been restored to the owner, "value" means the rental value of the property, determined at the rental rate contracted by the defendant or, if no rental rate was contracted, the rental rate customarily charged by the owner for use of the property, plus any damage that occurred to the property while the owner was deprived of its possession, but not exceeding the total retail value of the property at the time of rental.  For a theft committed within the meaning of subdivision 2, clause (19), "value" means the difference between wages legally required to be reported or paid to an employee and the amount actually reported or paid to the employee.

 

(4) "Article" means any object, material, device or substance, including any writing, record, recording, drawing, sample specimen, prototype, model, photograph, microorganism, blueprint or map, or any copy of any of the foregoing.

 

(5) "Representing" means describing, depicting, containing, constituting, reflecting or recording.

 

(6) "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:

 

(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and


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(ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

 

(7) "Copy" means any facsimile, replica, photograph or other reproduction of an article, and any note, drawing, or sketch made of or from an article while in the presence of the article.

 

(8) "Property of another" includes property in which the actor is co-owner or has a lien, pledge, bailment, or lease or other subordinate interest, property transferred by the actor in circumstances which are known to the actor and which make the transfer fraudulent as defined in section 513.44, property possessed pursuant to a short-term rental contract, and property of a partnership of which the actor is a member, unless the actor and the victim are husband and wife.  It does not include property in which the actor asserts in good faith a claim as a collection fee or commission out of property or funds recovered, or by virtue of a lien, setoff, or counterclaim.

 

(9) "Services" include but are not limited to labor, professional services, transportation services, electronic computer services, the supplying of hotel accommodations, restaurant services, entertainment services, advertising services, telecommunication services, and the supplying of equipment for use including rental of personal property or equipment.

 

(10) "Motor vehicle" means a self-propelled device for moving persons or property or pulling implements from one place to another, whether the device is operated on land, rails, water, or in the air.

 

(11) "Motor fuel" has the meaning given in section 604.15, subdivision 1.

 

(12) "Retailer" has the meaning given in section 604.15, subdivision 1.

 

Sec. 22.  Minnesota Statutes 2018, section 609.52, subdivision 2, is amended to read:

 

Subd. 2.  Acts constituting theft.  (a) Whoever does any of the following commits theft and may be sentenced as provided in subdivision 3:

 

(1) intentionally and without claim of right takes, uses, transfers, conceals or retains possession of movable property of another without the other's consent and with intent to deprive the owner permanently of possession of the property; or

 

(2) with or without having a legal interest in movable property, intentionally and without consent, takes the property out of the possession of a pledgee or other person having a superior right of possession, with intent thereby to deprive the pledgee or other person permanently of the possession of the property; or

 

(3) obtains for the actor or another the possession, custody, or title to property of or performance of services by a third person by intentionally deceiving the third person with a false representation which is known to be false, made with intent to defraud, and which does defraud the person to whom it is made.  "False representation" includes without limitation:

 

(i) the issuance of a check, draft, or order for the payment of money, except a forged check as defined in section 609.631, or the delivery of property knowing that the actor is not entitled to draw upon the drawee therefor or to order the payment or delivery thereof; or

 

(ii) a promise made with intent not to perform.  Failure to perform is not evidence of intent not to perform unless corroborated by other substantial evidence; or


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(iii) the preparation or filing of a claim for reimbursement, a rate application, or a cost report used to establish a rate or claim for payment for medical care provided to a recipient of medical assistance under chapter 256B, which intentionally and falsely states the costs of or actual services provided by a vendor of medical care; or

 

(iv) the preparation or filing of a claim for reimbursement for providing treatment or supplies required to be furnished to an employee under section 176.135 which intentionally and falsely states the costs of or actual treatment or supplies provided; or

 

(v) the preparation or filing of a claim for reimbursement for providing treatment or supplies required to be furnished to an employee under section 176.135 for treatment or supplies that the provider knew were medically unnecessary, inappropriate, or excessive; or

 

(4) by swindling, whether by artifice, trick, device, or any other means, obtains property or services from another person; or

 

(5) intentionally commits any of the acts listed in this subdivision but with intent to exercise temporary control only and:

 

(i) the control exercised manifests an indifference to the rights of the owner or the restoration of the property to the owner; or

 

(ii) the actor pledges or otherwise attempts to subject the property to an adverse claim; or

 

(iii) the actor intends to restore the property only on condition that the owner pay a reward or buy back or make other compensation; or

 

(6) finds lost property and, knowing or having reasonable means of ascertaining the true owner, appropriates it to the finder's own use or to that of another not entitled thereto without first having made reasonable effort to find the owner and offer and surrender the property to the owner; or

 

(7) intentionally obtains property or services, offered upon the deposit of a sum of money or tokens in a coin or token operated machine or other receptacle, without making the required deposit or otherwise obtaining the consent of the owner; or

 

(8) intentionally and without claim of right converts any article representing a trade secret, knowing it to be such, to the actor's own use or that of another person or makes a copy of an article representing a trade secret, knowing it to be such, and intentionally and without claim of right converts the same to the actor's own use or that of another person.  It shall be a complete defense to any prosecution under this clause for the defendant to show that information comprising the trade secret was rightfully known or available to the defendant from a source other than the owner of the trade secret; or

 

(9) leases or rents personal property under a written instrument and who:

 

(i) with intent to place the property beyond the control of the lessor conceals or aids or abets the concealment of the property or any part thereof; or

 

(ii) sells, conveys, or encumbers the property or any part thereof without the written consent of the lessor, without informing the person to whom the lessee sells, conveys, or encumbers that the same is subject to such lease or rental contract with intent to deprive the lessor of possession thereof; or


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(iii) does not return the property to the lessor at the end of the lease or rental term, plus agreed-upon extensions, with intent to wrongfully deprive the lessor of possession of the property; or

 

(iv) returns the property to the lessor at the end of the lease or rental term, plus agreed-upon extensions, but does not pay the lease or rental charges agreed upon in the written instrument, with intent to wrongfully deprive the lessor of the agreed-upon charges.

 

For the purposes of items (iii) and (iv), the value of the property must be at least $100.

 

Evidence that a lessee used a false, fictitious, or not current name, address, or place of employment in obtaining the property or fails or refuses to return the property or pay the rental contract charges to lessor within five days after written demand for the return has been served personally in the manner provided for service of process of a civil action or sent by certified mail to the last known address of the lessee, whichever shall occur later, shall be evidence of intent to violate this clause.  Service by certified mail shall be deemed to be complete upon deposit in the United States mail of such demand, postpaid and addressed to the person at the address for the person set forth in the lease or rental agreement, or, in the absence of the address, to the person's last known place of residence; or

 

(10) alters, removes, or obliterates numbers or symbols placed on movable property for purpose of identification by the owner or person who has legal custody or right to possession thereof with the intent to prevent identification, if the person who alters, removes, or obliterates the numbers or symbols is not the owner and does not have the permission of the owner to make the alteration, removal, or obliteration; or

 

(11) with the intent to prevent the identification of property involved, so as to deprive the rightful owner of possession thereof, alters or removes any permanent serial number, permanent distinguishing number or manufacturer's identification number on personal property or possesses, sells or buys any personal property knowing or having reason to know that the permanent serial number, permanent distinguishing number or manufacturer's identification number has been removed or altered; or

 

(12) intentionally deprives another of a lawful charge for cable television service by:

 

(i) making or using or attempting to make or use an unauthorized external connection outside the individual dwelling unit whether physical, electrical, acoustical, inductive, or other connection; or by

 

(ii) attaching any unauthorized device to any cable, wire, microwave, or other component of a licensed cable communications system as defined in chapter 238.  Nothing herein shall be construed to prohibit the electronic video rerecording of program material transmitted on the cable communications system by a subscriber for fair use as defined by Public Law 94-553, section 107; or

 

(13) except as provided in clauses (12) and (14), obtains the services of another with the intention of receiving those services without making the agreed or reasonably expected payment of money or other consideration; or

 

(14) intentionally deprives another of a lawful charge for telecommunications service by:

 

(i) making, using, or attempting to make or use an unauthorized connection whether physical, electrical, by wire, microwave, radio, or other means to a component of a local telecommunication system as provided in chapter 237; or

 

(ii) attaching an unauthorized device to a cable, wire, microwave, radio, or other component of a local telecommunication system as provided in chapter 237.


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The existence of an unauthorized connection is prima facie evidence that the occupier of the premises:

 

(A) made or was aware of the connection; and

 

(B) was aware that the connection was unauthorized;

 

(15) with intent to defraud, diverts corporate property other than in accordance with general business purposes or for purposes other than those specified in the corporation's articles of incorporation; or

 

(16) with intent to defraud, authorizes or causes a corporation to make a distribution in violation of section 302A.551, or any other state law in conformity with it; or

 

(17) takes or drives a motor vehicle without the consent of the owner or an authorized agent of the owner, knowing or having reason to know that the owner or an authorized agent of the owner did not give consent; or

 

(18) intentionally, and without claim of right, takes motor fuel from a retailer without the retailer's consent and with intent to deprive the retailer permanently of possession of the fuel by driving a motor vehicle from the premises of the retailer without having paid for the fuel dispensed into the vehicle.; or

 

(19) intentionally engages in or authorizes a prohibited practice of wage theft as described in section 181.03, subdivision 1.

 

(b) Proof that the driver of a motor vehicle into which motor fuel was dispensed drove the vehicle from the premises of the retailer without having paid for the fuel permits the factfinder to infer that the driver acted intentionally and without claim of right, and that the driver intended to deprive the retailer permanently of possession of the fuel.  This paragraph does not apply if:  (1) payment has been made to the retailer within 30 days of the receipt of notice of nonpayment under section 604.15; or (2) a written notice as described in section 604.15, subdivision 4, disputing the retailer's claim, has been sent.  This paragraph does not apply to the owner of a motor vehicle if the vehicle or the vehicle's license plate has been reported stolen before the theft of the fuel.

 

Sec. 23.  Minnesota Statutes 2018, section 609.52, subdivision 3, is amended to read:

 

Subd. 3.  Sentence.  Whoever commits theft may be sentenced as follows:

 

(1) to imprisonment for not more than 20 years or to payment of a fine of not more than $100,000, or both, if the property is a firearm, or the value of the property or services stolen is more than $35,000 and the conviction is for a violation of subdivision 2, clause (3), (4), (15), or (16), or (19), or section 609.2335, subdivision 1, clause (1) or (2), item (i); or

 

(2) to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both, if the value of the property or services stolen exceeds $5,000, or if the property stolen was an article representing a trade secret, an explosive or incendiary device, or a controlled substance listed in Schedule I or II pursuant to section 152.02 with the exception of marijuana; or

 

(3) to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both, if any of the following circumstances exist:

 

(a) the value of the property or services stolen is more than $1,000 but not more than $5,000; or


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(b) the property stolen was a controlled substance listed in Schedule III, IV, or V pursuant to section 152.02; or

 

(c) the value of the property or services stolen is more than $500 but not more than $1,000 and the person has been convicted within the preceding five years for an offense under this section, section 256.98; 268.182; 609.24; 609.245; 609.53; 609.582, subdivision 1, 2, or 3; 609.625; 609.63; 609.631; or 609.821, or a statute from another state, the United States, or a foreign jurisdiction, in conformity with any of those sections, and the person received a felony or gross misdemeanor sentence for the offense, or a sentence that was stayed under section 609.135 if the offense to which a plea was entered would allow imposition of a felony or gross misdemeanor sentence; or

 

(d) the value of the property or services stolen is not more than $1,000, and any of the following circumstances exist:

 

(i) the property is taken from the person of another or from a corpse, or grave or coffin containing a corpse; or

 

(ii) the property is a record of a court or officer, or a writing, instrument or record kept, filed or deposited according to law with or in the keeping of any public officer or office; or

 

(iii) the property is taken from a burning, abandoned, or vacant building or upon its removal therefrom, or from an area of destruction caused by civil disaster, riot, bombing, or the proximity of battle; or

 

(iv) the property consists of public funds belonging to the state or to any political subdivision or agency thereof; or

 

(v) the property stolen is a motor vehicle; or

 

(4) to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both, if the value of the property or services stolen is more than $500 but not more than $1,000; or

 

(5) in all other cases where the value of the property or services stolen is $500 or less, to imprisonment for not more than 90 days or to payment of a fine of not more than $1,000, or both, provided, however, in any prosecution under subdivision 2, clauses (1), (2), (3), (4), and (13), the value of the money or property or services received by the defendant in violation of any one or more of the above provisions within any six-month period may be aggregated and the defendant charged accordingly in applying the provisions of this subdivision; provided that when two or more offenses are committed by the same person in two or more counties, the accused may be prosecuted in any county in which one of the offenses was committed for all of the offenses aggregated under this paragraph.

 

Sec. 24.  APPROPRIATION.

 

(a) $2,046,000 in fiscal year 2020 and $2,046,000 in fiscal year 2021 are appropriated from the general fund to the commissioner of labor and industry to address wage theft.

 

(b) $654,000 in fiscal year 2020 and $654,000 in fiscal year 2021 are appropriated from the general fund to the attorney general to address wage theft.

 

(c) If an appropriation in this act is enacted more than once in the 2019 legislative session, the appropriation must be given effect only once."


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Delete the title and insert:

 

"A bill for an act relating to employment; prohibiting wage theft; modifying payment of wages; increasing civil and criminal penalties; allowing for administrative review; appropriating money; amending Minnesota Statutes 2018, sections 16C.285, subdivision 3; 177.27, subdivision 2, by adding subdivisions; 177.30; 177.32, subdivision 1; 181.03, subdivision 1, by adding subdivisions; 181.032; 181.101; 609.52, subdivisions 1, 2, 3; proposing coding for new law in Minnesota Statutes, chapters 177; 181."

 

 

With the recommendation that when so amended the bill be placed on the General Register.

 

      The report was adopted.

 

 

Carlson, L., from the Committee on Ways and Means to which was referred:

 

H. F. No. 11, A bill for an act relating to employment; providing for earned sick and safe time; authorizing rulemaking; imposing civil penalties; requiring reports; amending Minnesota Statutes 2018, section 177.27, subdivisions 2, 4, 7; proposing coding for new law in Minnesota Statutes, chapters 177; 181; repealing Minnesota Statutes 2018, section 181.9413.

 

Reported the same back with the following amendments:

 

Delete everything after the enacting clause and insert:

 

"ARTICLE 1

EARNED SICK AND SAFE TIME

 

Section 1.  Minnesota Statutes 2018, section 181.942, subdivision 1, is amended to read:

 

Subdivision 1.  Comparable position.  (a) An employee returning from a leave of absence under section 181.941 is entitled to return to employment in the employee's former position or in a position of comparable duties, number of hours, and pay.  An employee returning from a leave of absence longer than one month must notify a supervisor at least two weeks prior to return from leave.  An employee returning from a leave under section 181.9412 or 181.9413 181.9445 is entitled to return to employment in the employee's former position.

 

(b) If, during a leave under sections 181.940 to 181.944, the employer experiences a layoff and the employee would have lost a position had the employee not been on leave, pursuant to the good faith operation of a bona fide layoff and recall system, including a system under a collective bargaining agreement, the employee is not entitled to reinstatement in the former or comparable position.  In such circumstances, the employee retains all rights under the layoff and recall system, including a system under a collective bargaining agreement, as if the employee had not taken the leave.

 

Sec. 2.  [181.9445] EARNED SICK AND SAFE TIME.

 

Subdivision 1.  Definitions.  (a) For the purposes of this section and section 177.50, the terms defined in this subdivision have the meanings given them.

 

(b) "Commissioner" means the commissioner of labor and industry or authorized designee or representative.

 

(c) "Domestic abuse" has the meaning given in section 518B.01.


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(d) "Earned sick and safe time" means leave, including paid time off and other paid leave systems, that is paid at the same hourly rate as an employee earns from employment that may be used for the same purposes and under the same conditions as provided under subdivision 3.

 

(e) "Employee" means any person who is employed by an employer, including temporary and part-time employees, who performs work for at least 80 hours in a year for that employer in Minnesota.  Employee does not include:

 

(1) an independent contractor; or

 

(2) an individual employed by an air carrier as a flight deck or cabin crew member who is subject to United States Code, title 45, sections 181 to 188, and who is provided with paid leave equal to or exceeding the amounts in subdivision 2.

 

(f) "Employer" means a person who has one or more employees.  Employer includes an individual, a corporation, a partnership, an association, a business trust, a nonprofit organization, a group of persons, a state, county, town, city, school district, or other governmental subdivision.  In the event that a temporary employee is supplied by a staffing agency, absent a contractual agreement stating otherwise, that individual shall be an employee of the staffing agency for all purposes of this section and section 177.50.

 

(g) "Family member" means:

 

(1) an employee's:

 

(i) child, foster child, adult child, legal ward, or child for whom the employee is legal guardian;

 

(ii) spouse or registered domestic partner;

 

(iii) sibling, stepsibling, or foster sibling;

 

(iv) parent or stepparent;

 

(v) grandchild, foster grandchild, or stepgrandchild; or

 

(vi) grandparent or stepgrandparent;

 

(2) any of the family members listed in clause (1) of a spouse or registered domestic partner;

 

(3) any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship; and

 

(4) up to one individual annually designated by the employee.

 

(h) "Health care professional" means any person licensed under federal or state law to provide medical or emergency services, including doctors, physician assistants, nurses, and emergency room personnel.

 

(i) "Prevailing wage rate" has the meaning given in section 177.42 and as calculated by the Department of Labor and Industry.

 

(j) "Retaliatory personnel action" means:


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(1) any form of intimidation, threat, reprisal, harassment, discrimination, or adverse employment action, including discipline, discharge, suspension, transfer, or reassignment to a lesser position in terms of job classification, job security, or other condition of employment; reduction in pay or hours or denial of additional hours; the accumulation of points under an attendance point system; informing another employer that the person has engaged in activities protected by this chapter; or reporting or threatening to report the actual or suspected citizenship or immigration status of an employee, former employee, or family member of an employee to a federal, state, or local agency; and

 

(2) interference with or punishment for participating in any manner in an investigation, proceeding, or hearing under this chapter.

 

(k) "Sexual assault" means an act that constitutes a violation under sections 609.342 to 609.3453 or 609.352.

 

(l) "Stalking" has the meaning given in section 609.749.

 

(m) "Year" means a regular and consecutive 12-month period, as determined by an employer and clearly communicated to each employee of that employer.

 

Subd. 2.  Accrual of earned sick and safe time.  (a) An employee accrues a minimum of one hour of earned sick and safe time for every 30 hours worked up to a maximum of 48 hours of earned sick and safe time in a year.  Employees may not accrue more than 48 hours of earned sick and safe time in a year unless the employer agrees to a higher amount.

 

(b) Employers must permit an employee to carry over accrued but unused sick and safe time into the following year.  The total amount of accrued but unused earned sick and safe time for an employee may not exceed 80 hours at any time, unless an employer agrees to a higher amount.

 

(c) Employees who are exempt from overtime requirements under United States Code, title 29, section 213(a)(1), as amended through the effective date of this section, are deemed to work 40 hours in each workweek for purposes of accruing earned sick and safe time, except that an employee whose normal workweek is less than 40 hours will accrue earned sick and safe time based on the normal workweek.

 

(d) Earned sick and safe time under this section begins to accrue at the commencement of employment of the employee.

 

(e) Employees may use accrued earned sick and safe time beginning 90 calendar days after the day their employment commenced.  After 90 days from the day employment commenced, employees may use earned sick and safe time as it is accrued.  The 90-calendar-day period under this paragraph includes both days worked and days not worked.

 

Subd. 3.  Use of earned sick and safe time.  (a) An employee may use accrued earned sick and safe time for:

 

(1) an employee's:

 

(i) mental or physical illness, injury, or other health condition;

 

(ii) need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or

 

(iii) need for preventive medical or health care;

 

(2) care of a family member:


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(i) with a mental or physical illness, injury, or other health condition;

 

(ii) who needs medical diagnosis, care, or treatment of a mental or physical illness, injury, or other health condition; or

 

(iii) who needs preventive medical or health care;

 

(3) absence due to domestic abuse, sexual assault, or stalking of the employee or employee's family member, provided the absence is to:

 

(i) seek medical attention related to physical or psychological injury or disability caused by domestic abuse, sexual assault, or stalking;

 

(ii) obtain services from a victim services organization;

 

(iii) obtain psychological or other counseling;

 

(iv) seek relocation due to domestic abuse, sexual assault, or stalking; or

 

(v) seek legal advice or take legal action, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from domestic abuse, sexual assault, or stalking;

 

(4) closure of the employee's place of business due to weather or other public emergency or an employee's need to care for a family member whose school or place of care has been closed due to weather or other public emergency; and

 

(5) when it has been determined by the health authorities having jurisdiction or by a health care professional that the presence of the employee or family member of the employee in the community would jeopardize the health of others because of the exposure of the employee or family member of the employee to a communicable disease, whether or not the employee or family member has actually contracted the communicable disease.

 

(b) An employer may require notice of the need for use of earned sick and safe time as provided in this paragraph.  If the need for use is foreseeable, an employer may require advance notice of the intention to use earned sick and safe time but must not require more than seven days' advance notice.  If the need is unforeseeable, an employer may require an employee to give notice of the need for earned sick and safe time as soon as practicable.

 

(c) When an employee uses earned sick and safe time for more than three consecutive days, an employer may require reasonable documentation that the earned sick and safe time is covered by paragraph (a).  For earned sick and safe time under paragraph (a), clauses (1) and (2), reasonable documentation may include a signed statement by a health care professional indicating the need for use of earned sick and safe time.  For earned sick and safe time under paragraph (a), clause (3), an employer must accept a court record or documentation signed by a volunteer or employee of a victims services organization, an attorney, a police officer, or an antiviolence counselor as reasonable documentation.  An employer must not require disclosure of details relating to domestic abuse, sexual assault, or stalking or the details of an employee's or an employee's family member's medical condition as related to an employee's request to use earned sick and safe time under this section.

 

(d) An employer may not require, as a condition of an employee using earned sick and safe time, that the employee seek or find a replacement worker to cover the hours the employee uses as earned sick and safe time.

 

(e) Earned sick and safe time may be used in the smallest increment of time tracked by the employer's payroll system, provided such increment is not more than four hours.


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Subd. 4.  Retaliation prohibited.  An employer shall not take retaliatory personnel action against an employee because the employee has requested earned sick and safe time, used earned sick and safe time, requested a statement of accrued sick and safe time, or made a complaint or filed an action to enforce a right to earned sick and safe time under this section.

 

Subd. 5.  Reinstatement to comparable position after leave.  An employee returning from a leave under this section is entitled to return to employment in a comparable position.  If, during a leave under this section, the employer experiences a layoff and the employee would have lost a position had the employee not been on leave, pursuant to the good faith operation of a bona fide layoff and recall system, including a system under a collective bargaining agreement, the employee is not entitled to reinstatement in the former or comparable position.  In such circumstances, the employee retains all rights under the layoff and recall system, including a system under a collective bargaining agreement, as if the employee had not taken the leave.

 

Subd. 6.  Pay and benefits after leave.  An employee returning from a leave under this section is entitled to return to employment at the same rate of pay the employee had been receiving when the leave commenced, plus any automatic adjustments in the employee's pay scale that occurred during leave period.  The employee returning from a leave is entitled to retain all accrued preleave benefits of employment and seniority as if there had been no interruption in service, provided that nothing under this section prevents the accrual of benefits or seniority during the leave pursuant to a collective bargaining or other agreement between the employer and employees.

 

Subd. 7.  Part-time return from leave.  An employee, by agreement with the employer, may return to work part time during the leave period without forfeiting the right to return to employment at the end of the leave, as provided under this section.

 

Subd. 8.  Notice and posting by employer.  (a) Employers must give notice to all employees that they are entitled to earned sick and safe time, including the amount of earned sick and safe time, the accrual year for the employee, and the terms of its use under this section; that retaliation against employees who request or use earned sick and safe time is prohibited; and that each employee has the right to file a complaint or bring a civil action if earned sick and safe time is denied by the employer or the employee is retaliated against for requesting or using earned sick and safe time.

 

(b) Employers must supply employees with a notice in English and other appropriate languages that contains the information required in paragraph (a) at commencement of employment or the effective date of this section, whichever is later.

 

(c) The means used by the employer must be at least as effective as the following options for providing notice:

 

(1) posting a copy of the notice at each location where employees perform work and where the notice must be readily observed and easily reviewed by all employees performing work; or

 

(2) providing a paper or electronic copy of the notice to employees.

 

The notice must contain all information required under paragraph (a).  The commissioner shall create and make available to employers a poster and a model notice that contains the information required under paragraph (a) for their use in complying with this section.

 

(d) An employer that provides an employee handbook to its employees must include in the handbook notice of employee rights and remedies under this section.


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Subd. 9.  Required statement to employee.  (a) Upon request of the employee, the employer must provide, in writing or electronically, current information stating the employee's amount of:

 

(1) earned sick and safe time available to the employee; and

 

(2) used earned sick and safe time.

 

(b) Employers may choose a reasonable system for providing the information in paragraph (a), including but not limited to listing information on each pay stub or developing an online system where employees can access their own information.

 

Subd. 10.  Employer records.  (a) Employers shall retain accurate records documenting hours worked by employees and earned sick and safe time taken and comply with all requirements under section 177.30.

 

(b) An employer must allow an employee to inspect records required by this section and relating to that employee at a reasonable time and place.

 

Subd. 11.  Confidentiality and nondisclosure.  (a) If, in conjunction with this section, an employer possesses (1) health or medical information regarding an employee or an employee's family member; (2) information pertaining to domestic abuse, sexual assault, or stalking; (3) information that the employee has requested or obtained leave under this section; or (4) any written or oral statement, documentation, record, or corroborating evidence provided by the employee or an employee's family member, the employer must treat such information as confidential.  Information given by an employee may only be disclosed by an employer if the disclosure is requested or consented to by the employee, when ordered by a court or administrative agency, or when otherwise required by federal or state law.

 

(b) Records and documents relating to medical certifications, recertifications, or medical histories of employees or family members of employees created for purposes of this section or section 177.50 must be maintained as confidential medical records separate from the usual personnel files.  At the request of the employee, the employer must destroy or return the records required by this section that are older than three years prior to the current calendar year.

 

(c) Employers may not discriminate against any employee based on records created for the purposes of this section or section 177.50.

 

Subd. 12.  No effect on more generous sick and safe time policies.  (a) Nothing in this section shall be construed to discourage employers from adopting or retaining earned sick and safe time policies that meet or exceed, and do not otherwise conflict with, the minimum standards and requirements provided in this section.

 

(b) Nothing in this section shall be construed to limit the right of parties to a collective bargaining agreement to bargain and agree with respect to earned sick and safe time policies or to diminish the obligation of an employer to comply with any contract, collective bargaining agreement, or any employment benefit program or plan that meets or exceeds, and does not otherwise conflict with, the minimum standards and requirements provided in this section.

 

(c) Employers who provide earned sick and safe time to their employees under a paid time off policy or other paid leave policy that meets or exceeds, and does not otherwise conflict with, the minimum standards and requirements provided in this section are not required to provide additional earned sick and safe time.

 

(d) An employer may opt to satisfy the requirements of this section for construction industry employees by:

 

(1) paying at least the prevailing wage rate as defined by section 177.42 and as calculated by the Department of Labor and Industry; or


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(2) paying at least the required rate established in a registered apprenticeship agreement for apprentices registered with the Department of Labor and Industry.

 

An employer electing this option is deemed to be in compliance with this section for construction industry employees who receive either at least the prevailing wage rate or the rate required in the applicable apprenticeship agreement regardless of whether the employees are working on private or public projects.

 

(e) This section does not prohibit an employer from establishing a policy whereby employees may donate unused accrued sick and safe time to another employee.

 

(f) This section does not prohibit an employer from advancing sick and safe time to an employee before accrual by the employee.

 

Subd. 13.  Termination; separation; transfer.  This section does not require financial or other reimbursement to an employee from an employer upon the employee's termination, resignation, retirement, or other separation from employment for accrued earned sick and safe time that has not been used.  If an employee is transferred to a separate division, entity, or location, but remains employed by the same employer, the employee is entitled to all earned sick and safe time accrued at the prior division, entity, or location and is entitled to use all earned sick and safe time as provided in this section.  When there is a separation from employment and the employee is rehired within 180 days of separation by the same employer, previously accrued earned sick and safe time that had not been used must be reinstated.  An employee is entitled to use accrued earned sick and safe time and accrue additional earned sick and safe time at the commencement of reemployment.

 

Subd. 14.  Employer succession.  (a) When a different employer succeeds or takes the place of an existing employer, all employees of the original employer who remain employed by the successor employer are entitled to all earned sick and safe time accrued but not used when employed by the original employer, and are entitled to use all earned sick and safe time previously accrued but not used.

 

(b) If, at the time of transfer of the business, employees are terminated by the original employer and hired within 30 days by the successor employer following the transfer, those employees are entitled to all earned sick and safe time accrued but not used when employed by the original employer, and are entitled to use all earned sick and safe time previously accrued but not used.

 

Sec. 3.  REPEALER.

 

Minnesota Statutes 2018, section 181.9413, is repealed.

 

Sec. 4.  EFFECTIVE DATE.

 

Sections 1 to 3 are effective 180 days following final enactment.

 

ARTICLE 2

EARNED SICK AND SAFE TIME ENFORCEMENT

 

Section 1.  Minnesota Statutes 2018, section 177.27, subdivision 2, is amended to read:

 

Subd. 2.  Submission of records; penalty.  The commissioner may require the employer of employees working in the state to submit to the commissioner photocopies, certified copies, or, if necessary, the originals of employment records which the commissioner deems necessary or appropriate.  The records which may be required include full and correct statements in writing, including sworn statements by the employer, containing information relating to wages, hours, names, addresses, and any other information pertaining to the employer's employees and the conditions of their employment as the commissioner deems necessary or appropriate.


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The commissioner may require the records to be submitted by certified mail delivery or, if necessary, by personal delivery by the employer or a representative of the employer, as authorized by the employer in writing.

 

The commissioner may fine the employer up to $1,000 $10,000 for each failure to submit or deliver records as required by this section.  This penalty is in addition to any penalties provided under section 177.32, subdivision 1.  In determining the amount of a civil penalty under this subdivision, the appropriateness of such penalty to the size of the employer's business and the gravity of the violation shall be considered.

 

Sec. 2.  Minnesota Statutes 2018, section 177.27, subdivision 4, is amended to read:

 

Subd. 4.  Compliance orders.  The commissioner may issue an order requiring an employer to comply with sections 177.21 to 177.435, 181.02, 181.03, 181.031, 181.032, 181.101, 181.11, 181.13, 181.14, 181.145, 181.15, 181.172, paragraph (a) or (d), 181.275, subdivision 2a, 181.722, 181.79, and 181.939 to 181.943, and 181.9445, or with any rule promulgated under section 177.28.  The commissioner shall issue an order requiring an employer to comply with sections 177.41 to 177.435 if the violation is repeated.  For purposes of this subdivision only, a violation is repeated if at any time during the two years that preceded the date of violation, the commissioner issued an order to the employer for violation of sections 177.41 to 177.435 and the order is final or the commissioner and the employer have entered into a settlement agreement that required the employer to pay back wages that were required by sections 177.41 to 177.435.  The department shall serve the order upon the employer or the employer's authorized representative in person or by certified mail at the employer's place of business.  An employer who wishes to contest the order must file written notice of objection to the order with the commissioner within 15 calendar days after being served with the order.  A contested case proceeding must then be held in accordance with sections 14.57 to 14.69.  If, within 15 calendar days after being served with the order, the employer fails to file a written notice of objection with the commissioner, the order becomes a final order of the commissioner.

 

Sec. 3.  Minnesota Statutes 2018, section 177.27, subdivision 7, is amended to read:

 

Subd. 7.  Employer liability.  If an employer is found by the commissioner to have violated a section identified in subdivision 4, or any rule adopted under section 177.28, and the commissioner issues an order to comply, the commissioner shall order the employer to cease and desist from engaging in the violative practice and to take such affirmative steps that in the judgment of the commissioner will effectuate the purposes of the section or rule violated.  The commissioner shall order the employer to pay to the aggrieved parties back pay, gratuities, and compensatory damages, less any amount actually paid to the employee by the employer, and for an additional equal amount as liquidated damages.  Any employer who is found by the commissioner to have repeatedly or willfully violated a section or sections identified in subdivision 4 shall be subject to a civil penalty of up to $1,000 $10,000 for each violation for each employee.  In determining the amount of a civil penalty under this subdivision, the appropriateness of such penalty to the size of the employer's business and the gravity of the violation shall be considered.  In addition, the commissioner may order the employer to reimburse the department and the attorney general for all appropriate litigation and hearing costs expended in preparation for and in conducting the contested case proceeding, unless payment of costs would impose extreme financial hardship on the employer.  If the employer is able to establish extreme financial hardship, then the commissioner may order the employer to pay a percentage of the total costs that will not cause extreme financial hardship.  Costs include but are not limited to the costs of services rendered by the attorney general, private attorneys if engaged by the department, administrative law judges, court reporters, and expert witnesses as well as the cost of transcripts.  Interest shall accrue on, and be added to, the unpaid balance of a commissioner's order from the date the order is signed by the commissioner until it is paid, at an annual rate provided in section 549.09, subdivision 1, paragraph (c).  The commissioner may establish escrow accounts for purposes of distributing damages.

 

Sec. 4.  [177.50] EARNED SICK AND SAFE TIME ENFORCEMENT.

 

Subdivision 1.  Definitions.  The definitions in section 181.9445, subdivision 1, apply to this section.


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Subd. 2.  Rulemaking authority.  The commissioner may adopt rules to carry out the purposes of this section and section 181.9445.

 

Subd. 3.  Individual remedies.  In addition to any other remedies provided by law, a person injured by a violation of section 181.9445 may bring a civil action to recover general and special damages, along with costs, fees, and reasonable attorney fees, and may receive injunctive and other equitable relief as determined by a court.  An action to recover damages under this subdivision must be commenced within three years of the violation of section 181.9445 that caused the injury to the employee.

 

Subd. 4.  Grants to community organizations.  The commissioner may make grants to community organizations for the purpose of outreach to and education for employees regarding their rights under section 181.9445.  The community-based organizations must be selected based on their experience, capacity, and relationships in high-violation industries.  The work under such a grant may include the creation and administration of a statewide worker hotline.

 

Subd. 5.  Report to legislature.  (a) The commissioner must submit an annual report to the legislature, including to the chairs and ranking minority members of any relevant legislative committee.  The report must include, but is not limited to:

 

(1) a list of all violations of section 181.9445, including the employer involved, and the nature of any violations; and

 

(2) an analysis of noncompliance with section 181.9445, including any patterns by employer, industry, or county.

 

(b) A report under this section must not include an employee's name or other identifying information, any health or medical information regarding an employee or an employee's family member, or any information pertaining to domestic abuse, sexual assault, or stalking of an employee or an employee's family member.

 

Subd. 6.  Contract for labor or services.  It is the responsibility of all employers to not enter into any contract or agreement for labor or services where the employer has any actual knowledge or knowledge arising from familiarity with the normal facts and circumstances of the business activity engaged in, or has any additional facts or information that, taken together, would make a reasonably prudent person undertake to inquire whether, taken together, the contractor is not complying or has failed to comply with this section.  For purposes of this subdivision, "actual knowledge" means information obtained by the employer that the contractor has violated this section within the past two years and has failed to present the employer with credible evidence that such noncompliance has been cured going forward.

 

EFFECTIVE DATE.  This section is effective 180 days after final enactment.

 

ARTICLE 3

EARNED SICK AND SAFE TIME APPROPRIATIONS

 

Section 1.  EARNED SICK AND SAFE TIME APPROPRIATIONS.

 

(a) $3,866,000 in fiscal year 2020 and $4,072,000 in fiscal year 2021 are appropriated from the general fund to the commissioner of labor and industry for enforcement and other duties regarding earned sick and safe time under Minnesota Statutes, section 181.9445 and chapter 177.  In fiscal year 2022, the base amount is $2,874,000 and in fiscal year 2023 and beyond, the base amount is $2,873,000.


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(b) $22,000 in fiscal year 2020 and $93,000 in fiscal year 2021 are appropriated from the general fund to the commissioner of management and budget for costs associated with earned sick and safe time under Minnesota Statutes, section 181.9445.

 

(c) If an appropriation in this act is enacted more than once in the 2019 legislative session, the appropriation must be given effect only once."

 

Delete the title and insert:

 

"A bill for an act relating to employment; providing for earned sick and safe time; appropriating money; authorizing rulemaking; imposing civil penalties; requiring reports; amending Minnesota Statutes 2018, sections 177.27, subdivisions 2, 4, 7; 181.942, subdivision 1; proposing coding for new law in Minnesota Statutes, chapters 177; 181; repealing Minnesota Statutes 2018, section 181.9413."

 

 

With the recommendation that when so amended the bill be placed on the General Register.

 

      The report was adopted.

 

 

Carlson, L., from the Committee on Ways and Means to which was referred:

 

H. F. No. 90, A bill for an act relating to health; establishing consumer protections for residents of assisted living establishments; establishing an assisted living establishment license; providing penalties; granting rulemaking authority; requiring reports; amending Minnesota Statutes 2018, sections 144.057, subdivision 1; 144.0721; 144.122; 144.651, subdivision 1, by adding a subdivision; 144A.18; 144A.19, subdivision 1; 144A.20, subdivision 1; 144A.21; 144A.23; 144A.24; 144A.251; 144A.2511; 144A.26; 144A.27; 144A.4791, subdivision 10; 144D.01, subdivisions 2a, 4, 5, by adding subdivisions; 144D.015; 144D.02; 144D.04, subdivision 1; 144D.05; 144D.06; 144D.09; 144D.10; 144D.11; 325F.72, subdivisions 1, 4; proposing coding for new law in Minnesota Statutes, chapter 144; proposing coding for new law as Minnesota Statutes, chapters 144I; 144J; repealing Minnesota Statutes 2018, sections 144A.44; 144A.441; 144A.442; 144D.01, subdivision 6; 144D.025; 144D.04, subdivisions 2, 3; 144D.045; 144D.065; 144D.066; 144D.07; 144G.01; 144G.02; 144G.03, subdivisions 1, 2, 3, 4, 5, 6; 144G.04; 144G.05; 144G.06.

 

Reported the same back with the following amendments:

 

Delete everything after the enacting clause and insert:

 

"ARTICLE 1

RESIDENT RIGHTS AND CONSUMER PROTECTIONS

 

Section 1.  [144J.01] DEFINITIONS.

 

Subdivision 1.  Applicability.  For the purposes of this chapter, the following terms have the meanings given them unless the context clearly indicates otherwise.

 

Subd. 2.  Assisted living contract.  "Assisted living contract" means the legal agreement between a resident and an assisted living facility for housing and assisted living services.

 

Subd. 3.  Assisted living facility.  "Assisted living facility" has the meaning given in section 144I.01, subdivision 6.


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Subd. 4.  Assisted living facility with dementia care.  "Assisted living facility with dementia care" has the meaning given in section 144I.01, subdivision 8.

 

Subd. 5.  Assisted living services.  "Assisted living services" has the meaning given in section 144I.01, subdivision 7.

 

Subd. 6.  Attorney-in-fact.  "Attorney-in-fact" means a person designated by a principal to exercise the powers granted by a written and valid power of attorney under chapter 523.

 

Subd. 7.  Conservator.  "Conservator" means a court-appointed conservator acting in accordance with the powers granted to the conservator under chapter 524.

 

Subd. 8.  Designated representative.  "Designated representative" means a person designated in writing by the resident in an assisted living contract and identified in the resident's records on file with the assisted living facility.

 

Subd. 9.  Facility.  "Facility" means an assisted living facility.

 

Subd. 10.  Guardian.  "Guardian" means a court-appointed guardian acting in accordance with the powers granted to the guardian under chapter 524.

 

Subd. 11.  Health care agent.  "Health care agent" has the meaning given in section 145C.01, subdivision 2.

 

Subd. 12.  Legal representative.  "Legal representative" means one of the following in the order of priority listed, to the extent the person may reasonably be identified and located:

 

(1) a guardian;

 

(2) a conservator;

 

(3) a health care agent; or

 

(4) an attorney-in-fact.

 

Subd. 13.  Licensed health care professional.  "Licensed health care professional" means:

 

(1) a physician licensed under chapter 147;

 

(2) an advanced practice registered nurse, as that term is defined in section 148.171, subdivision 3;

 

(3) a licensed practical nurse, as that term is defined in section 148.171, subdivision 8; or

 

(4) a registered nurse, as that term is defined in section 148.171, subdivision 20.

 

Subd. 14.  Resident.  "Resident" means a person living in an assisted living facility.

 

Subd. 15.  Resident record.  "Resident record" has the meaning given in section 144I.01, subdivision 53.

 

Subd. 16.  Service plan.  "Service plan" has the meaning given in section 144I.01, subdivision 57.

 

EFFECTIVE DATE.  This section is effective August 1, 2021.


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Sec. 2.  [144J.02] RESIDENT RIGHTS.

 

Subdivision 1.  Applicability.  This section applies to assisted living facility residents.

 

Subd. 2.  Legislative intent.  The rights established under this section for the benefit of residents do not limit any other rights available under law.  No facility may request or require that any resident waive any of these rights at any time for any reason, including as a condition of admission to the facility.

 

Subd. 3.  Information about rights and facility policies.  (a) Before receiving services, residents have the right to be informed by the facility of the rights granted under this section.  The information must be in plain language and in terms residents can understand.  The facility must make reasonable accommodations for residents who have communication disabilities and those who speak a language other than English.

 

(b) Every facility must:

 

(1) indicate what recourse residents have if their rights are violated; and

 

(2) provide the information required under section 144J.10.

 

(c) Upon request, residents and their legal representatives and designated representatives have the right to copies of current facility policies and inspection findings of state and local health authorities, and to receive further explanation of the rights provided under this section, consistent with chapter 13 and section 626.557.

 

Subd. 4.  Courteous treatment.  Residents have the right to be treated with courtesy and respect, and to have the resident's property treated with respect.

 

Subd. 5.  Appropriate care and services.  (a) Residents have the right to care and services that are appropriate based on the resident's needs and according to an up-to-date service plan.  All service plans must be designed to enable residents to achieve their highest level of emotional, psychological, physical, medical, and functional well‑being and safety.

 

(b) Residents have the right to receive health care and other assisted living services with continuity from people who are properly trained and competent to perform their duties and in sufficient numbers to adequately provide the services agreed to in the assisted living contract and the service plan.

 

Subd. 6.  Participation in care and service planning.  Residents have the right to actively participate in the planning, modification, and evaluation of their care and services.  This right includes:

 

(1) the opportunity to discuss care, services, treatment, and alternatives with the appropriate caregivers;

 

(2) the opportunity to request and participate in formal care conferences;

 

(3) the right to include a family member or the resident's health care agent and designated representative, or both; and

 

(4) the right to be told in advance of, and take an active part in decisions regarding, any recommended changes in the service plan.

 

Subd. 7.  Information about individuals providing services.  Before receiving services, residents have the right to be told the type and disciplines of staff who will be providing the services, the frequency of visits proposed to be furnished, and other choices that are available for addressing the resident's needs.


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Subd. 8.  Information about health care treatment.  Where applicable, residents have the right to be given by their attending physician complete and current information concerning their diagnosis, cognitive functioning level, treatment, alternatives, risks, and prognosis as required by the physician's legal duty to disclose.  This information must be in terms and language the residents can reasonably be expected to understand.  This information must include the likely medical or major psychological results of the treatment and its alternatives.

 

Subd. 9.  Information about other providers and services.  (a) Residents have the right to be informed by the assisted living facility, prior to executing an assisted living contract, that other public and private services may be available and the resident has the right to purchase, contract for, or obtain services from a provider other than the assisted living facility or related assisted living services provider.

 

(b) Assisted living facilities must make every effort to assist residents in obtaining information regarding whether Medicare, medical assistance, or another public program will pay for any of the services.

 

Subd. 10.  Information about charges.  Before services are initiated, residents have the right to be notified:

 

(1) of all charges for services;

 

(2) whether payment may be expected from health insurance, public programs, or other sources, if known, and the amount of such payments; and

 

(3) what charges the resident may be responsible for paying.

 

Subd. 11.  Refusal of care or services.  (a) Residents have the right to refuse care or services.

 

(b) A provider must document in the resident's record that the provider informed a resident who refuses care, services, treatment, medication, or dietary restrictions of the likely medical, health-related, or psychological consequences of the refusal.

 

(c) In cases where a resident lacks capacity but has not been adjudicated incompetent, or when legal requirements limit the right to refuse medical treatment, the conditions and circumstances must be fully documented by the attending physician in the resident's record.

 

Subd. 12.  Freedom from maltreatment.  Residents have the right to be free from maltreatment.  For the purposes of this subdivision, "maltreatment" means conduct described in section 626.5572, subdivision 15, and includes the intentional and nontherapeutic infliction of physical pain or injury, or any persistent course of conduct intended to produce mental or emotional distress.

 

Subd. 13.  Personal and treatment privacy.  (a) Residents have the right to every consideration of their privacy, individuality, and cultural identity as related to their social, religious, and psychological well-being.  Staff must respect the privacy of a resident's space by knocking on the door and seeking consent before entering, except in an emergency or where clearly inadvisable.

 

(b) Residents have the right to respect and privacy regarding the resident's health care and personal care program.  Case discussion, consultation, examination, and treatment are confidential and must be conducted discreetly.  Privacy must be respected during toileting, bathing, and other activities of personal hygiene, except as needed for resident safety or assistance.

 

Subd. 14.  Communication privacy.  (a) Residents have the right to communicate privately with persons of their choice.  Assisted living facilities that are unable to provide a private area for communication must make reasonable arrangements to accommodate the privacy of residents' communications.


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(b) Personal mail must be sent by the assisted living facility without interference and received unopened unless medically or programmatically contraindicated and documented by a licensed health care professional listed in the resident's record.

 

(c) Residents must be provided access to a telephone to make and receive calls.

 

Subd. 15.  Confidentiality of records.  (a) Residents have the right to have personal, financial, health, and medical information kept private, to approve or refuse release of information to any outside party, and to be advised of the assisted living facility's policies and procedures regarding disclosure of the information.  Residents must be notified when personal records are requested by any outside party.

 

(b) Residents have the right to access their own records and written information from those records in accordance with sections 144.291 to 144.298.

 

Subd. 16.  Grievances and inquiries.  (a) Residents have the right to make and receive a timely response to a complaint or inquiry, without limitation.  Residents have the right to know and every facility must provide the name and contact information of the person representing the facility who is designated to handle and resolve complaints and inquiries.

 

(b) A facility must promptly investigate, make a good faith attempt to resolve, and provide a timely response to the complaint or inquiry.

 

(c) Residents have the right to recommend changes in policies and services to staff and managerial officials, as that term is defined in section 144I.01, subdivision 31.

 

Subd. 17.  Visitors and social participation.  (a) Residents have the right to meet with or receive visits at any time by the resident's family, guardian, conservator, health care agent, attorney, advocate, or religious or social work counselor, or any person of the resident's choosing.

 

(b) Residents have the right to participate in commercial, religious, social, community, and political activities without interference and at their discretion if the activities do not infringe on the right to privacy of other residents.

 

Subd. 18.  Access to counsel and advocacy services.  Notwithstanding subdivision 15, residents have the right to the immediate access by:

 

(1) the resident's legal counsel;

 

(2) any representative of the protection and advocacy system designated by the state under Code of Federal Regulations, title 45, section 1326.21; or

 

(3) any representative of the Office of Ombudsman for Long-Term Care.

 

Subd. 19.  Right to come and go freely.  Residents have the right to enter and leave the facility as they choose.  This right may be restricted only as allowed by other law and consistent with a resident's service plan.

 

Subd. 20.  Access to technology.  Residents have the right to access Internet service at their expense, unless offered by the facility.

 

Subd. 21.  Resident councils.  Residents have the right to organize and participate in resident councils.  The facility must provide a resident council with space and privacy for meetings, where doing so is reasonably achievable.  Staff, visitors, or other guests may attend resident council meetings only at the council's invitation.  The


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facility must provide a designated staff person who is approved by the resident council and the facility to be responsible for providing assistance and responding to written requests that result from meetings.  The facility must consider the views of the resident council and must act promptly upon the grievances and recommendations of the council, but a facility is not required to implement as recommended every request of the council.  The facility shall, with the approval of the resident council, take reasonably achievable steps to make residents aware of upcoming meetings in a timely manner.

 

Subd. 22.  Family councils.  Residents have the right to participate in family councils formed by families or residents.  The facility must provide a family council with space and privacy for meetings, where doing so is reasonably achievable.  The facility must provide a designated staff person who is approved by the family council and the facility to be responsible for providing assistance and responding to written requests that result from meetings.  The facility must consider the views of the family council and must act promptly upon the grievances and recommendations of the council, but a facility is not required to implement as recommended every request of the council.  The facility shall, with the approval of the family council, take reasonably achievable steps to make residents and family members aware of upcoming meetings in a timely manner.

 

EFFECTIVE DATE.  This section is effective August 1, 2019.

 

Sec. 3.  [144J.03] RETALIATION PROHIBITED.

 

Subdivision 1.  Retaliation prohibited.  A facility or agent of a facility may not retaliate against a resident or employee if the resident, employee, or any person acting on behalf of the resident:

 

(1) files a complaint or grievance, makes an inquiry, or asserts any right;

 

(2) indicates an intention to file a complaint or grievance, make an inquiry, or assert any right;

 

(3) files or indicates an intention to file a maltreatment report, whether mandatory or voluntary, under section 626.557;

 

(4) seeks assistance from or reports a reasonable suspicion of a crime or systemic problems or concerns to the administrator or manager of the facility, the Office of Ombudsman for Long-Term Care, a regulatory or other government agency, or a legal or advocacy organization;

 

(5) advocates or seeks advocacy assistance for necessary or improved care or services or enforcement of rights under this section or other law;

 

(6) takes or indicates an intention to take civil action;

 

(7) participates or indicates an intention to participate in any investigation or administrative or judicial proceeding;

 

(8) contracts or indicates an intention to contract to receive services from a service provider of the resident's choice other than the facility; or

 

(9) places or indicates an intention to place a camera or electronic monitoring device in the resident's private space as provided under section 144J.05.

 

Subd. 2.  Retaliation against a resident.  For purposes of this section, to retaliate against a resident includes but is not limited to any of the following actions taken or threatened by a facility or an agent of the facility against a resident, or any person with a familial, personal, legal, or professional relationship with the resident:


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(1) the discharge, eviction, transfer, or termination of services;

 

(2) the imposition of discipline, punishment, or a sanction or penalty;

 

(3) any form of discrimination;

 

(4) restriction or prohibition of access:

 

(i) of the resident to the facility or visitors; or

 

(ii) to the resident by a family member or a person with a personal, legal, or professional relationship with the resident;

 

(5) the imposition of involuntary seclusion or withholding food, care, or services;

 

(6) restriction of any of the rights granted to residents under state or federal law;

 

(7) restriction or reduction of access to or use of amenities, care, services, privileges, or living arrangements;

 

(8) an arbitrary increase in charges or fees;

 

(9) removing, tampering with, or deprivation of technology, communication, or electronic monitoring devices; or

 

(10) any oral or written communication of false information about a person advocating on behalf of the resident.

 

Subd. 3.  Retaliation against an employee.  For purposes of this section, to retaliate against an employee includes but is not limited to any of the following actions taken or threatened by the facility or an agent of the facility against an employee:

 

(1) discharge or transfer;

 

(2) demotion or refusal to promote;

 

(3) reduction in compensation, benefits, or privileges;

 

(4) the unwarranted imposition of discipline, punishment, or a sanction or penalty; or

 

(5) any form of discrimination.

 

Subd. 4.  Rebuttable presumption of retaliation.  (a) Except as provided in paragraphs (b), (c), and (d), there is a rebuttable presumption that any action described in subdivision 2 or 3 and taken within 90 days of an initial action described in subdivision 1 is retaliatory.

 

(b) The presumption does not apply to actions described in subdivision 2, clause (4), if a good faith report of maltreatment pursuant to section 626.557 is made by the facility or agent of the facility against the visitor, family member, or other person with a personal, legal, or professional relationship that is subject to the restriction or prohibition of access.

 

(c) The presumption does not apply to any oral or written communication described in subdivision 2, clause (10), that is associated with a good faith report of maltreatment pursuant to section 626.557 made by the facility or agent of the facility against the person advocating on behalf of the resident.


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(d) The presumption does not apply to a discharge, eviction, transfer, or termination of services that occurs for a reason permitted under section 144J.08, subdivision 3 or 6, provided the assisted living facility has complied with the applicable requirements in sections 144J.08 and 144.10.

 

Subd. 5.  Other laws.  Nothing in this section affects the rights available to a resident under section 626.557.

 

EFFECTIVE DATE.  This section is effective August 1, 2021.

 

Sec. 4.  [144J.04] DECEPTIVE MARKETING AND BUSINESS PRACTICES PROHIBITED.

 

(a) No employee or agent of any facility may make any false, fraudulent, deceptive, or misleading statements or representations or material omissions in marketing, advertising, or any other description or representation of care or services.

 

(b) No assisted living contract may include any provision that the facility knows or should know to be deceptive, unlawful, or unenforceable under state or federal law, nor include any provision that requires or implies a lesser standard of care or responsibility than is required by law.

 

(c) No facility may advertise or represent that it is licensed as an assisted living facility with dementia care without complying with disclosure requirements under section 325F.72 and any training requirements required under chapter 144I or in rule.

 

(d) A violation of this section constitutes a violation of section 325F.69, subdivision 1.  The attorney general or a county attorney may enforce this section using the remedies in section 325F.70.

 

EFFECTIVE DATE.  This section is effective August 1, 2021.

 

Sec. 5.  [144J.05] ELECTRONIC MONITORING IN CERTAIN FACILITIES.

 

Subdivision 1.  Definitions.  (a) For the purposes of this section, the terms defined in this subdivision have the meanings given.

 

(b) "Commissioner" means the commissioner of health.

 

(c) "Department" means the Department of Health.

 

(d) "Electronic monitoring" means the placement and use of an electronic monitoring device by a resident in the resident's room or private living unit in accordance with this section.

 

(e) "Electronic monitoring device" means a camera or other device that captures, records, or broadcasts audio, video, or both, that is placed in a resident's room or private living unit and is used to monitor the resident or activities in the room or private living unit.

 

(f) "Facility" means a facility that is:

 

(1) licensed as a nursing home under chapter 144A;

 

(2) licensed as a boarding care home under sections 144.50 to 144.56;

 

(3) until August 1, 2021, a housing with services establishment registered under chapter 144D that is either subject to chapter 144G or has a disclosed special unit under section 325F.72; or


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(4) on or after August 1, 2021, an assisted living facility.

 

(g) "Resident" means a person 18 years of age or older residing in a facility.

 

(h) "Resident representative" means one of the following in the order of priority listed, to the extent the person may reasonably be identified and located:

 

(1) a court-appointed guardian;

 

(2) a health care agent as defined in section 145C.01, subdivision 2; or

 

(3) a person who is not an agent of a facility or of a home care provider designated in writing by the resident and maintained in the resident's records on file with the facility or with the resident's executed housing with services contract or nursing home contract.

 

Subd. 2.  Electronic monitoring authorized.  (a) A resident or a resident representative may conduct electronic monitoring of the resident's room or private living unit through the use of electronic monitoring devices placed in the resident's room or private living unit as provided in this section.

 

(b) Nothing in this section precludes the use of electronic monitoring of health care allowed under other law.

 

(c) Electronic monitoring authorized under this section is not a covered service under home and community‑based waivers under sections 256B.0913, 256B.0915, 256B.092, and 256B.49.

 

(d) This section does not apply to monitoring technology authorized as a home and community-based service under section 256B.0913, 256B.0915, 256B.092, or 256B.49.

 

Subd. 3.  Consent to electronic monitoring.  (a) Except as otherwise provided in this subdivision, a resident must consent to electronic monitoring in the resident's room or private living unit in writing on a notification and consent form.  If the resident has not affirmatively objected to electronic monitoring and the resident's medical professional determines that the resident currently lacks the ability to understand and appreciate the nature and consequences of electronic monitoring, the resident representative may consent on behalf of the resident.  For purposes of this subdivision, a resident affirmatively objects when the resident orally, visually, or through the use of auxiliary aids or services declines electronic monitoring.  The resident's response must be documented on the notification and consent form.

 

(b) Prior to a resident representative consenting on behalf of a resident, the resident must be asked if the resident wants electronic monitoring to be conducted.  The resident representative must explain to the resident:

 

(1) the type of electronic monitoring device to be used;

 

(2) the standard conditions that may be placed on the electronic monitoring device's use, including those listed in subdivision 6;

 

(3) with whom the recording may be shared under subdivision 10 or 11; and

 

(4) the resident's ability to decline all recording.

 

(c) A resident, or resident representative when consenting on behalf of the resident, may consent to electronic monitoring with any conditions of the resident's or resident representative's choosing, including the list of standard conditions provided in subdivision 6.  A resident, or resident representative when consenting on behalf of the resident, may request that the electronic monitoring device be turned off or the visual or audio recording component of the electronic monitoring device be blocked at any time.


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(d) Prior to implementing electronic monitoring, a resident, or resident representative when acting on behalf of the resident, must obtain the written consent on the notification and consent form of any other resident residing in the shared room or shared private living unit.  A roommate's or roommate's resident representative's written consent must comply with the requirements of paragraphs (a) to (c).  Consent by a roommate or a roommate's resident representative under this paragraph authorizes the resident's use of any recording obtained under this section, as provided under subdivision 10 or 11.

 

(e) Any resident conducting electronic monitoring must immediately remove or disable an electronic monitoring device prior to a new roommate moving into a shared room or shared private living unit, unless the resident obtains the roommate's or roommate's resident representative's written consent as provided under paragraph (d) prior to the roommate moving into the shared room or shared private living unit.  Upon obtaining the new roommate's signed notification and consent form and submitting the form to the facility as required under subdivision 5, the resident may resume electronic monitoring.

 

(f) The resident or roommate, or the resident representative or roommate's resident representative if the representative is consenting on behalf of the resident or roommate, may withdraw consent at any time and the withdrawal of consent must be documented on the original consent form as provided under subdivision 5, paragraph (d).

 

Subd. 4.  Refusal of roommate to consent.  If a resident of a facility who is residing in a shared room or shared living unit, or the resident representative of such a resident when acting on behalf of the resident, wants to conduct electronic monitoring and another resident living in or moving into the same shared room or shared living unit refuses to consent to the use of an electronic monitoring device, the facility shall make a reasonable attempt to accommodate the resident who wants to conduct electronic monitoring.  A facility has met the requirement to make a reasonable attempt to accommodate a resident or resident representative who wants to conduct electronic monitoring when, upon notification that a roommate has not consented to the use of an electronic monitoring device in the resident's room, the facility offers to move the resident to another shared room or shared living unit that is available at the time of the request.  If a resident chooses to reside in a private room or private living unit in a facility in order to accommodate the use of an electronic monitoring device, the resident must pay either the private room rate in a nursing home setting, or the applicable rent in a housing with services establishment or assisted living facility.  If a facility is unable to accommodate a resident due to lack of space, the facility must reevaluate the request every two weeks until the request is fulfilled.  A facility is not required to provide a private room, a single‑bed room, or a private living unit to a resident who is unable to pay.

 

Subd. 5.  Notice to facility; exceptions.  (a) Electronic monitoring may begin only after the resident or resident representative who intends to place an electronic monitoring device and any roommate or roommate's resident representative completes the notification and consent form and submits the form to the facility.

 

(b) Notwithstanding paragraph (a), the resident or resident representative who intends to place an electronic monitoring device may do so without submitting a notification and consent form to the facility for up to 30 days:

 

(1) if the resident or the resident representative reasonably fears retaliation against the resident by the facility, timely submits the completed notification and consent form to the Office of Ombudsman for Long-Term Care, and timely submits a Minnesota Adult Abuse Reporting Center report or police report, or both, upon evidence from the electronic monitoring device that suspected maltreatment has occurred;

 

(2) if there has not been a timely written response from the facility to a written communication from the resident or resident representative expressing a concern prompting the desire for placement of an electronic monitoring device and if the resident or a resident representative timely submits a completed notification and consent form to the Office of Ombudsman for Long-Term Care; or


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(3) if the resident or resident representative has already submitted a Minnesota Adult Abuse Reporting Center report or police report regarding the resident's concerns prompting the desire for placement and if the resident or a resident representative timely submits a completed notification and consent form to the Office of Ombudsman for Long-Term Care.

 

(c) Upon receipt of any completed notification and consent form, the facility must place the original form in the resident's file or file the original form with the resident's housing with services contract.  The facility must provide a copy to the resident and the resident's roommate, if applicable.

 

(d) In the event that a resident or roommate, or the resident representative or roommate's resident representative if the representative is consenting on behalf of the resident or roommate, chooses to alter the conditions under which consent to electronic monitoring is given or chooses to withdraw consent to electronic monitoring, the facility must make available the original notification and consent form so that it may be updated.  Upon receipt of the updated form, the facility must place the updated form in the resident's file or file the original form with the resident's signed housing with services contract.  The facility must provide a copy of the updated form to the resident and the resident's roommate, if applicable.

 

(e) If a new roommate, or the new roommate's resident representative when consenting on behalf of the new roommate, does not submit to the facility a completed notification and consent form and the resident conducting the electronic monitoring does not remove or disable the electronic monitoring device, the facility must remove the electronic monitoring device.

 

(f) If a roommate, or the roommate's resident representative when withdrawing consent on behalf of the roommate, submits an updated notification and consent form withdrawing consent and the resident conducting electronic monitoring does not remove or disable the electronic monitoring device, the facility must remove the electronic monitoring device.

 

Subd. 6.  Form requirements.  (a) The notification and consent form completed by the resident must include, at a minimum, the following information:

 

(1) the resident's signed consent to electronic monitoring or the signature of the resident representative, if applicable.  If a person other than the resident signs the consent form, the form must document the following:

 

(i) the date the resident was asked if the resident wants electronic monitoring to be conducted;

 

(ii) who was present when the resident was asked;

 

(iii) an acknowledgment that the resident did not affirmatively object; and

 

(iv) the source of authority allowing the resident representative to sign the notification and consent form on the resident's behalf;

 

(2) the resident's roommate's signed consent or the signature of the roommate's resident representative, if applicable.  If a roommate's resident representative signs the consent form, the form must document the following:

 

(i) the date the roommate was asked if the roommate wants electronic monitoring to be conducted;

 

(ii) who was present when the roommate was asked;

 

(iii) an acknowledgment that the roommate did not affirmatively object; and


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(iv) the source of authority allowing the resident representative to sign the notification and consent form on the roommate's behalf;

 

(3) the type of electronic monitoring device to be used;

 

(4) a list of standard conditions or restrictions that the resident or a roommate may elect to place on the use of the electronic monitoring device, including but not limited to:

 

(i) prohibiting audio recording;

 

(ii) prohibiting video recording;

 

(iii) prohibiting broadcasting of audio or video;

 

(iv) turning off the electronic monitoring device or blocking the visual recording component of the electronic monitoring device for the duration of an exam or procedure by a health care professional;

 

(v) turning off the electronic monitoring device or blocking the visual recording component of the electronic monitoring device while dressing or bathing is performed; and

 

(vi) turning off the electronic monitoring device for the duration of a visit with a spiritual adviser, ombudsman, attorney, financial planner, intimate partner, or other visitor;

 

(5) any other condition or restriction elected by the resident or roommate on the use of an electronic monitoring device;

 

(6) a statement of the circumstances under which a recording may be disseminated under subdivision 10;

 

(7) a signature box for documenting that the resident or roommate has withdrawn consent; and

 

(8) an acknowledgment that the resident, in accordance with subdivision 3, consents to the Office of Ombudsman for Long-Term Care and its representatives disclosing information about the form.  Disclosure under this clause shall be limited to:

 

(i) the fact that the form was received from the resident or resident representative;

 

(ii) if signed by a resident representative, the name of the resident representative and the source of authority allowing the resident representative to sign the notification and consent form on the resident's behalf; and

 

(iii) the type of electronic monitoring device placed.

 

(b) Facilities must make the notification and consent form available to the residents and inform residents of their option to conduct electronic monitoring of their rooms or private living unit.

 

(c) Notification and consent forms received by the Office of Ombudsman for Long-Term Care are classified under section 256.9744.

 

Subd. 7.  Costs and installation.  (a) A resident or resident representative choosing to conduct electronic monitoring must do so at the resident's own expense, including paying purchase, installation, maintenance, and removal costs.


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(b) If a resident chooses to place an electronic monitoring device that uses Internet technology for visual or audio monitoring, the resident may be responsible for contracting with an Internet service provider.

 

(c) The facility shall make a reasonable attempt to accommodate the resident's installation needs, including allowing access to the facility's public-use Internet or Wi-Fi systems when available for other public uses.  A facility has the burden of proving that a requested accommodation is not reasonable.

 

(d) All electronic monitoring device installations and supporting services must be UL-listed.

 

Subd. 8.  Notice to visitors.  (a) A facility must post a sign at each facility entrance accessible to visitors that states:  "Electronic monitoring devices, including security cameras and audio devices, may be present to record persons and activities."

 

(b) The facility is responsible for installing and maintaining the signage required in this subdivision. 

 

Subd. 9.  Obstruction of electronic monitoring devices.  (a) A person must not knowingly hamper, obstruct, tamper with, or destroy an electronic monitoring device placed in a resident's room or private living unit without the permission of the resident or resident representative.

 

(b) It is not a violation of paragraph (a) if a person turns off the electronic monitoring device or blocks the visual recording component of the electronic monitoring device at the direction of the resident or resident representative, or if consent has been withdrawn.

 

Subd. 10.  Dissemination of recordings.  (a) No person may access any video or audio recording created through authorized electronic monitoring without the written consent of the resident or resident representative.

 

(b) Except as required under other law, a recording or copy of a recording made as provided in this section may only be disseminated for the purpose of addressing health, safety, or welfare concerns of one or more residents.

 

(c) A person disseminating a recording or copy of a recording made as provided in this section in violation of paragraph (b) may be civilly or criminally liable.

 

Subd. 11.  Admissibility of evidence.  Subject to applicable rules of evidence and procedure, any video or audio recording created through electronic monitoring under this section may be admitted into evidence in a civil, criminal, or administrative proceeding.

 

Subd. 12.  Liability.  (a) For the purposes of state law, the mere presence of an electronic monitoring device in a resident's room or private living unit is not a violation of the resident's right to privacy under section 144.651 or 144A.44.

 

(b) For the purposes of state law, a facility or home care provider is not civilly or criminally liable for the mere disclosure by a resident or a resident representative of a recording.

 

Subd. 13.  Immunity from liability.  The Office of Ombudsman for Long-Term Care and representatives of the office are immune from liability for conduct described in section 256.9742, subdivision 2.

 

Subd. 14.  Resident protections.  (a) A facility must not:

 

(1) refuse to admit a potential resident or remove a resident because the facility disagrees with the decision of the potential resident, the resident, or a resident representative acting on behalf of the resident regarding electronic monitoring;


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(2) retaliate or discriminate against any resident for consenting or refusing to consent to electronic monitoring, as provided in section 144.6512, 144G.07, or 144J.03; or

 

(3) prevent the placement or use of an electronic monitoring device by a resident who has provided the facility or the Office of Ombudsman for Long-Term Care with notice and consent as required under this section.

 

(b) Any contractual provision prohibiting, limiting, or otherwise modifying the rights and obligations in this section is contrary to public policy and is void and unenforceable.

 

Subd. 15.  Employee discipline.  (a) An employee of the facility or an employee of a contractor providing services at the facility who is the subject of proposed corrective or disciplinary action based upon evidence obtained by electronic monitoring must be given access to that evidence for purposes of defending against the proposed action.

 

(b) An employee who obtains a recording or a copy of the recording must treat the recording or copy confidentially and must not further disseminate it to any other person except as required under law.  Any copy of the recording must be returned to the facility or resident who provided the copy when it is no longer needed for purposes of defending against a proposed action. 

 

Subd. 16.  Penalties.  (a) The commissioner may issue a correction order as provided under section 144A.10, 144A.45, or 144A.474, upon a finding that the facility has failed to comply with:

 

(1) subdivision 5, paragraphs (c) to (f);

 

(2) subdivision 6, paragraph (b);

 

(3) subdivision 7, paragraph (c); and

 

(4) subdivisions 8 to 10 and 14.

 

(b) The commissioner may exercise the commissioner's authority under section 144D.05 to compel a housing with services establishment to meet the requirements of this section.

 

EFFECTIVE DATE.  This section is effective August 1, 2019, and applies to all contracts in effect, entered into, or renewed on or after that date.

 

Sec. 6.  [144J.06] NO DISCRIMINATION BASED ON SOURCE OF PAYMENT.

 

All facilities must, regardless of the source of payment and for all persons seeking to reside or residing in the facility:

 

(1) provide equal access to quality care; and

 

(2) establish, maintain, and implement identical policies and practices regarding residency, transfer, and provision and termination of services.

 

EFFECTIVE DATE.  This section is effective August 1, 2021.


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Sec. 7.  [144J.07] CONSUMER ADVOCACY AND LEGAL SERVICES.

 

Upon execution of an assisted living contract, every facility must provide the resident and the resident's legal and designated representatives with the names and contact information, including telephone numbers and e­mail addresses, of:

 

(1) nonprofit organizations that provide advocacy or legal services to residents including but not limited to the designated protection and advocacy organization in Minnesota that provides advice and representation to individuals with disabilities; and

 

(2) the Office of Ombudsman for Long-Term Care, including both the state and regional contact information.

 

EFFECTIVE DATE.  This section is effective August 1, 2021.

 

Sec. 8.  [144J.08] INVOLUNTARY DISCHARGES AND SERVICE TERMINATIONS.

 

Subdivision 1.  Definitions.  (a) For the purposes of this section and sections 144J.09 and 144J.10, the following terms have the meanings given them.

 

(b) "Facility" means:

 

(1) a housing with services establishment registered under section 144D.02 and operating under title protection provided under chapter 144G; or

 

(2) on or after August 1, 2021, an assisted living facility.

 

(c) "Refusal to readmit" means a refusal by an assisted living facility, upon a request from a resident or an agent of the resident, to allow the resident to return to the facility, whether or not a notice of termination of housing or services has been issued.

 

(d) "Termination of housing or services" or "termination" means an involuntary facility-initiated discharge, eviction, transfer, or service termination not initiated at the oral or written request of the resident or to which the resident objects.

 

Subd. 2.  Prerequisite to termination of housing or services.  Before issuing a notice of termination, a facility must explain in person and in detail the reasons for the termination, and must convene a conference with the resident, the resident's legal representatives, the resident's designated representative, the resident's family, applicable state and social services agencies, and relevant health professionals to identify and offer reasonable accommodations and modifications, interventions, or alternatives to avoid the termination.

 

Subd. 3.  Permissible reasons to terminate housing or services.  (a) A facility is prohibited from terminating housing or services for grounds other than those specified in paragraphs (b) and (c).  A facility initiating a termination under paragraph (b) or (c) must comply with subdivision 2.

 

(b) A facility may not initiate a termination unless the termination is necessary and the facility produces a written determination, supported by documentation, of the necessity of the termination.  A termination is necessary only if:

 

(1) the resident has engaged in documented conduct that substantially interferes with the rights, health, or safety of other residents;


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(2) the resident has committed any of the acts enumerated under section 504B.171 that substantially interfere with the rights, health, or safety of other residents; or

 

(3) the facility can demonstrate that the resident's needs exceed the scope of services for which the resident contracted or which are included in the resident's service plan.

 

(c) A facility may initiate a termination for nonpayment, provided the facility:

 

(1) makes reasonable efforts to accommodate temporary financial hardship;

 

(2) informs the resident of private subsidies and public benefits options that may be available, including but not limited to benefits available under sections 256B.0915 and 256B.49; and

 

(3) if the resident applies for public benefits, timely responds to state or county agency questions regarding the application.

 

(d) A facility may not initiate a termination of housing or services to a resident receiving public benefits in the event of a temporary interruption in benefits.  A temporary interruption of benefits does not constitute nonpayment.

 

Subd. 4.  Notice of termination required.  (a) A facility initiating a termination of housing or services must issue a written notice that complies with subdivision 5 at least 30 days prior to the effective date of the termination to the resident, to the resident's legal representative and designated representative, or if none, to a family member if known, and to the Ombudsman for Long-Term Care.

 

(b) A facility may relocate a resident with less than 30 days' notice only in the event of emergencies, as provided in subdivision 6.

 

(c) The notice requirements in paragraph (a) do not apply if the facility's license is restricted by the commissioner or the facility ceases operations.  In the event of a license restriction or cessation of operations, the facility must follow the commissioner's directions for resident relocations contained in section 144J.10.

 

Subd. 5.  Content of notice.  The notice required under subdivision 4 must contain, at a minimum:

 

(1) the effective date of the termination;

 

(2) a detailed explanation of the basis for the termination, including, but not limited to, clinical or other supporting rationale;

 

(3) contact information for, and a statement that the resident has the right to appeal the termination to, the Office of Administrative Hearings;

 

(4) contact information for the Ombudsman for Long-Term Care;

 

(5) the name and contact information of a person employed by the facility with whom the resident may discuss the notice of termination of housing or services;

 

(6) if the termination is for services, a statement that the notice of termination of services does not constitute a termination of housing or an eviction from the resident's home, and that the resident has the right to remain in the facility if the resident can secure necessary services from another provider of the resident's choosing; and

 

(7) if the resident must relocate:


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(i) a statement that the facility must actively participate in a coordinated transfer of the resident's care to a safe and appropriate service provider; and

 

(ii) the name of and contact information for the new location or provider, or a statement that the location or provider must be identified prior to the effective date of the termination.

 

Subd. 6.  Exception for emergencies.  (a) A facility may relocate a resident from a facility with less than 30 days' notice if relocation is required:

 

(1) due to a resident's urgent medical needs and is ordered by a licensed health care professional; or

 

(2) because of an imminent risk to the health or safety of another resident or a staff member of the facility.

 

(b) A facility relocating a resident under this subdivision must:

 

(1) remove the resident to an appropriate location.  A private home where the occupant is unwilling or unable to care for the resident, a homeless shelter, a hotel, or a motel is not an appropriate location; and

 

(2) provide notice of the contact information for and location to which the resident has been relocated, contact information for any new service provider and for the Ombudsman for Long-Term Care, the reason for the relocation, a statement that, if the resident is refused readmission to the facility, the resident has the right to appeal any refusal to readmit to the Office of Administrative Hearings, and, if ascertainable, the approximate date or range of dates when the resident is expected to return to the facility or a statement that such date is not currently ascertainable, to:

 

(i) the resident, the resident's legal representative and designated representative, or if none, a family member if known immediately upon relocation of the resident; and

 

(ii) the Office of Ombudsman for Long-Term Care as soon as practicable if the resident has been relocated from the facility for more than 48 hours.

 

(c) The resident has the right to return to the facility if the conditions under paragraph (a) no longer exist.

 

(d) If the facility determines that the resident cannot return to the facility or the facility cannot provide the necessary services to the resident upon return, the facility must as soon as practicable but in no event later than 24 hours after the refusal or determination, comply with subdivision 4, and section 144J.10.

 

EFFECTIVE DATE.  (a) This section is effective August 1, 2019, and expires July 31, 2021, for housing with services establishments registered under section 144D.02 and operating under title protection provided by and subject to chapter 144G.

 

(b) This section is effective for assisted living facilities August 1, 2021.

 

Sec. 9.  [144J.09] APPEAL OF TERMINATION OF HOUSING OR SERVICES.

 

Subdivision 1.  Right to appeal termination of housing or services.  A resident, the resident's legal representative or designated representative, or a family member, has the right to appeal a termination of housing or services or a facility's refusal to readmit the resident after an emergency relocation and to request a contested case hearing with the Office of Administrative Hearings.

 

Subd. 2.  Appeals process.  (a) An appeal and request for a contested case hearing must be filed in writing or electronically as authorized by the chief administrative law judge.


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(b) The Office of Administrative Hearings must conduct an expedited hearing as soon as practicable, and in any event no later than 14 calendar days after the office receives the request and within three business days in the event of an appeal of a refusal to readmit.  The hearing must be held at the facility where the resident lives, unless it is impractical or the parties agree to a different place.  The hearing is not a formal evidentiary hearing.  The hearing may also be attended by telephone as allowed by the administrative law judge, after considering how a telephonic hearing will affect the resident's ability to participate.  The hearing shall be limited to the amount of time necessary for the participants to expeditiously present the facts about the proposed termination or refusal to readmit.  The administrative law judge shall issue a recommendation to the commissioner as soon as practicable, and in any event no later than ten calendar days after the hearing or within two calendar days after the hearing in the case of a refusal to readmit.

 

(c) The facility bears the burden of proof to establish by a preponderance of the evidence that the termination of housing or services or the refusal to readmit is permissible under law and does not constitute retaliation under section 144G.07 or 144J.03.

 

(d) Appeals from final determinations issued by the Office of Administrative Hearings shall be as provided in sections 14.63 to 14.68.

 

(e) The Office of Administrative Hearings must grant the appeal and the commissioner of health may order the assisted living facility to rescind the termination of housing and services or readmit the resident if:

 

(1) the termination or refusal to readmit was in violation of state or federal law;

 

(2) the resident cures or demonstrates the ability to cure the reason for the termination or refusal to readmit, or has identified any reasonable accommodation or modification, intervention, or alternative to the termination;

 

(3) termination would result in great harm or potential great harm to the resident as determined by a totality of the circumstances; or

 

(4) the facility has failed to identify a safe and appropriate location to which the resident is to be relocated as required under section 144J.10.

 

(f) The Office of Administrative Hearings has the authority to make any other determinations or orders regarding any conditions that may be placed upon the resident's readmission or continued residency, including but not limited to changes to the service plan or required increases in services.

 

(g) Nothing in this section limits the right of a resident or the resident's designated representative to request or receive assistance from the Office of Ombudsman for Long-Term Care and the protection and advocacy agency protection and advocacy system designated by the state under Code of Federal Regulations, title 45, section 1326.21, concerning the termination of housing or services.

 

Subd. 3.  Representation at the hearing.  Parties may, but are not required to, be represented by counsel at a contested case hearing on an appeal.  The appearance of a party without counsel does not constitute the unauthorized practice of law.

 

Subd. 4.  Service provision while appeal pending.  Housing or services may not be terminated during the pendency of an appeal and until a final determination is made by the Office of Administrative Hearings.

 

EFFECTIVE DATE.  (a) This section is effective August 1, 2019, and expires July 31, 2021, for housing with services establishments registered under section 144D.02 and operating under title protection provided by and subject to chapter 144G.

 

(b) This section is effective for assisted living facilities August 1, 2021.


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Sec. 10.  [144J.10] HOUSING AND SERVICE TERMINATION; RELOCATION PLANNING.

 

Subdivision 1.  Duties of the facility.  If a facility terminates housing or services, if a facility intends to cease operations, or if a facility's license is restricted by the commissioner requiring termination of housing or services to residents, the facility:

 

(1) in the event of a termination of housing, has an affirmative duty to ensure a coordinated and orderly transfer of the resident to a safe location that is appropriate for the resident.  The facility must identify that location prior to any appeal hearing;

 

(2) in the event of a termination of services, has an affirmative duty to ensure a coordinated and orderly transfer of the resident to an appropriate service provider, if services are still needed and desired by the resident.  The facility must identify the provider prior to any appeal hearing; and

 

(3) must consult and cooperate with the resident; the resident's legal representatives, designated representative, and family members; any interested professionals, including case managers; and applicable agencies to consider the resident's goals and make arrangements to relocate the resident.

 

Subd. 2.  Safe location.  A safe location is not a private home where the occupant is unwilling or unable to care for the resident, a homeless shelter, a hotel, or a motel.  A facility may not terminate a resident's housing or services if the resident will, as a result of the termination, become homeless, as that term is defined in section 116L.361, subdivision 5, or if an adequate and safe discharge location or adequate and needed service provider has not been identified.

 

Subd. 3.  Written relocation plan required.  The facility must prepare a written relocation plan for a resident being relocated.  The plan must:

 

(1) contain all the necessary steps to be taken to reduce transfer trauma; and

 

(2) specify the measures needed until relocation that protect the resident and meet the resident's health and safety needs.

 

Subd. 4.  No relocation without receiving setting accepting.  A facility may not relocate the resident unless the place to which the resident will be relocated indicates acceptance of the resident.

 

Subd. 5.  No termination of services without another provider.  If a resident continues to need and desire the services provided by the facility, the facility may not terminate services unless another service provider has indicated that it will provide those services.

 

Subd. 6.  Information that must be conveyed.  If a resident is relocated to another facility or to a nursing home, or if care is transferred to another provider, the facility must timely convey to that facility, nursing home, or provider:

 

(1) the resident's full name, date of birth, and insurance information;

 

(2) the name, telephone number, and address of the resident's designated representatives and legal representatives, if any;

 

(3) the resident's current documented diagnoses that are relevant to the services being provided;

 

(4) the resident's known allergies that are relevant to the services being provided;


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(5) the name and telephone number of the resident's physician, if known, and the current physician orders that are relevant to the services being provided;

 

(6) all medication administration records that are relevant to the services being provided;

 

(7) the most recent resident assessment, if relevant to the services being provided; and

 

(8) copies of health care directives, "do not resuscitate" orders, and any guardianship orders or powers of attorney.

 

Subd. 7.  Final accounting; return of money and property.  (a) Within 30 days of the effective date of the termination of housing or services, the facility must:

 

(1) provide to the resident, resident's legal representatives, and the resident's designated representative a final statement of account;

 

(2) provide any refunds due;

 

(3) return any money, property, or valuables held in trust or custody by the facility; and

 

(4) as required under section 504B.178, refund the resident's security deposit unless it is applied to the first month's charges.

 

EFFECTIVE DATE.  (a) This section is effective August 1, 2019, and expires July 31, 2021, for housing with services establishments registered under section 144D.02 and operating under title protection provided by and subject to chapter 144G.

 

(b) This section is effective for assisted living facilities August 1, 2021.

 

Sec. 11.  [144J.11] FORCED ARBITRATION.

 

(a) An assisted living facility must affirmatively disclose, orally and conspicuously in writing in an assisted living contract, any arbitration provision in the contract that precludes, limits, or delays the ability of a resident from taking a civil action.

 

(b) A forced arbitration requirement must not include a choice of law or choice of venue provision.  Assisted living contracts must adhere to Minnesota law and any other applicable federal or local law.  Any civil actions by any litigant must be taken in Minnesota judicial or administrative courts.

 

(c) A forced arbitration provision must not be unconscionable.  All or the portion of a forced arbitration provision found by a court to be unconscionable shall have no effect on the remaining provisions, terms, or conditions of the contract.

 

EFFECTIVE DATE.  This section is effective August 1, 2019, for contracts entered into on or after that date.

 

Sec. 12.  [144J.12] VIOLATION OF RIGHTS.

 

(a) A resident who meets the criteria under section 325F.71, subdivision 1, has a cause of action under section 325F.71, subdivision 4, for the violation of section 144J.02, subdivisions 12, 15, and 18, or section 144J.04.


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(b) A resident who meets the criteria under section 325F.71, subdivision 1, has a cause of action under section 325F.71, subdivision 4, for the violation of section 144J.03, unless the resident otherwise has a cause of action under section 626.557, subdivision 17.

 

EFFECTIVE DATE.  This section is effective August 1, 2021.

 

Sec. 13.  [144J.13] APPLICABILITY OF OTHER LAWS.

 

Assisted living facilities:

 

(1) are subject to and must comply with chapter 504B;

 

(2) must comply with section 325F.72; and

 

(3) are not required to obtain a lodging license under chapter 157 and related rules.

 

EFFECTIVE DATE.  This section is effective August 1, 2021.

 

Sec. 14.  Minnesota Statutes 2018, section 325F.72, subdivision 4, is amended to read:

 

Subd. 4.  Remedy.  The attorney general may seek the remedies set forth in section 8.31 for repeated and intentional violations of this section.  However, no private right of action may be maintained as provided under section 8.31, subdivision 3a.

 

ARTICLE 2

NURSING HOMES

 

Section 1.  [144.6512] RETALIATION IN NURSING HOMES PROHIBITED.

 

Subdivision 1.  Definitions.  For the purposes of this section:

 

(1) "nursing home" means a facility licensed as a nursing home under chapter 144A; and

 

(2) "resident" means a person residing in a nursing home.

 

Subd. 2.  Retaliation prohibited.  A nursing home or agent of the nursing home may not retaliate against a resident or employee if the resident, employee, or any person acting on behalf of the resident:

 

(1) files a complaint or grievance, makes an inquiry, or asserts any right;

 

(2) indicates an intention to file a complaint or grievance, make an inquiry, or assert any right;

 

(3) files or indicates an intention to file a maltreatment report, whether mandatory or voluntary, under section 626.557;

 

(4) seeks assistance from or reports a reasonable suspicion of a crime or systemic problems or concerns to the administrator or manager of the nursing home, the Office of Ombudsman for Long-Term Care, a regulatory or other government agency, or a legal or advocacy organization;

 

(5) advocates or seeks advocacy assistance for necessary or improved care or services or enforcement of rights under this section or other law;


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(6) takes or indicates an intention to take civil action;

 

(7) participates or indicates an intention to participate in any investigation or administrative or judicial proceeding;

 

(8) contracts or indicates an intention to contract to receive services from a service provider of the resident's choice other than the nursing home; or

 

(9) places or indicates an intention to place a camera or electronic monitoring device in the resident's private space as provided under section 144J.05.

 

Subd. 3.  Retaliation against a resident.  For purposes of this section, to retaliate against a resident includes but is not limited to any of the following actions taken or threatened by a nursing home or an agent of the nursing home against a resident, or any person with a familial, personal, legal, or professional relationship with the resident:

 

(1) the discharge, eviction, transfer, or termination of services;

 

(2) the imposition of discipline, punishment, or a sanction or penalty;

 

(3) any form of discrimination;

 

(4) restriction or prohibition of access:

 

(i) of the resident to the nursing home or visitors; or

 

(ii) to the resident by a family member or a person with a personal, legal, or professional relationship with the resident;

 

(5) the imposition of involuntary seclusion or withholding food, care, or services;

 

(6) restriction of any of the rights granted to residents under state or federal law;

 

(7) restriction or reduction of access to or use of amenities, care, services, privileges, or living arrangements;

 

(8) an arbitrary increase in charges or fees;

 

(9) removing, tampering with, or deprivation of technology, communication, or electronic monitoring devices; or

 

(10) any oral or written communication of false information about a person advocating on behalf of the resident.

 

Subd. 4.  Retaliation against an employee.  For purposes of this section, to retaliate against an employee includes but is not limited to any of the following actions taken or threatened by the nursing home or an agent of the nursing home against an employee:

 

(1) discharge or transfer;

 

(2) demotion or refusal to promote;

 

(3) reduction in compensation, benefits, or privileges;

 

(4) the unwarranted imposition of discipline, punishment, or a sanction or penalty; or

 

(5) any form of discrimination.


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Subd. 5.  Rebuttable presumption of retaliation.  (a) Except as provided in paragraphs (b), (c), and (d), there is a rebuttable presumption that any action described in subdivision 3 or 4 and taken within 90 days of an initial action described in subdivision 2 is retaliatory.

 

(b) The presumption does not apply to actions described in subdivision 3, clause (4), if a good faith report of maltreatment pursuant to section 626.557 is made by the nursing home or agent of the nursing home against the visitor, family member, or other person with a personal, legal, or professional relationship that is subject to the restriction or prohibition of access.

 

(c) The presumption does not apply to any oral or written communication described in subdivision 3, clause (10), that is associated with a good faith report of maltreatment pursuant to section 626.557 made by the nursing home or agent of the nursing home against the person advocating on behalf of the resident.

 

(d) The presumption does not apply to a termination of a contract of admission, as that term is defined under section 144.6501, subdivision 1, for a reason permitted under state or federal law.

 

Subd. 6.  Remedy.  A resident who meets the criteria under section 325F.71, subdivision 1, has a cause of action under section 325F.71, subdivision 4, for the violation of this section, unless the resident otherwise has a cause of action under section 626.557, subdivision 17.

 

EFFECTIVE DATE.  This section is effective August 1, 2019.

 

ARTICLE 3

HOUSING WITH SERVICES ESTABLISHMENTS

 

Section 1.  [144G.07] RETALIATION PROHIBITED.

 

Subdivision 1.  Definitions.  For the purposes of this section and section 144G.08:

 

(1) "facility" means a housing with services establishment registered under section 144D.02 and operating under title protection under this chapter; and

 

(2) "resident" means a resident of a facility.

 

Subd. 2.  Retaliation prohibited.  A facility or agent of the facility may not retaliate against a resident or employee if the resident, employee, or any person on behalf of the resident:

 

(1) files a complaint or grievance, makes an inquiry, or asserts any right;

 

(2) indicates an intention to file a complaint or grievance, make an inquiry, or assert any right;

 

(3) files or indicates an intention to file a maltreatment report, whether mandatory or voluntary, under section 626.557;

 

(4) seeks assistance from or reports a reasonable suspicion of a crime or systemic problems or concerns to the administrator or manager of the facility, the Office of Ombudsman for Long-Term Care, a regulatory or other government agency, or a legal or advocacy organization;

 

(5) advocates or seeks advocacy assistance for necessary or improved care or services or enforcement of rights under this section or other law;


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(6) takes or indicates an intention to take civil action;

 

(7) participates or indicates an intention to participate in any investigation or administrative or judicial proceeding;

 

(8) contracts or indicates an intention to contract to receive services from a service provider of the resident's choice other than the facility; or

 

(9) places or indicates an intention to place a camera or electronic monitoring device in the resident's private space as provided under section 144J.05.

 

Subd. 3.  Retaliation against a resident.  For purposes of this section, to retaliate against a resident includes but is not limited to any of the following actions taken or threatened by a facility or an agent of the facility against a resident, or any person with a familial, personal, legal, or professional relationship with the resident:

 

(1) the discharge, eviction, transfer, or termination of services;

 

(2) the imposition of discipline, punishment, or a sanction or penalty;

 

(3) any form of discrimination;

 

(4) restriction or prohibition of access:

 

(i) of the resident to the facility or visitors; or

 

(ii) to the resident by a family member or a person with a personal, legal, or professional relationship with the resident;

 

(5) the imposition of involuntary seclusion or withholding food, care, or services;

 

(6) restriction of any of the rights granted to residents under state or federal law;

 

(7) restriction or reduction of access to or use of amenities, care, services, privileges, or living arrangements;

 

(8) an arbitrary increase in charges or fees;

 

(9) removing, tampering with, or deprivation of technology, communication, or electronic monitoring devices; or

 

(10) any oral or written communication of false information about a person advocating on behalf of the resident.

 

Subd. 4.  Retaliation against an employee.  For purposes of this section, to retaliate against an employee includes but is not limited to any of the following actions taken or threatened by the facility or an agent of the facility against an employee:

 

(1) discharge or transfer;

 

(2) demotion or refusal to promote;

 

(3) reduction in compensation, benefits, or privileges;

 

(4) the unwarranted imposition of discipline, punishment, or a sanction or penalty; or

 

(5) any form of discrimination.


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Subd. 5.  Rebuttable presumption of retaliation.  (a) Except as provided in paragraphs (b), (c), and (d), there is a rebuttable presumption that any action described in subdivision 3 or 4 and taken within 90 days of an initial action described in subdivision 2 is retaliatory.

 

(b) The presumption does not apply to actions described in subdivision 3, clause (4), if a good faith report of maltreatment pursuant to section 626.557 is made by the facility or agent of the facility against the visitor, family member, or other person with a personal, legal, or professional relationship that is subject to the restriction or prohibition of access.

 

(c) The presumption does not apply to any oral or written communication described in subdivision 3, clause (10), that is associated with a good faith report of maltreatment pursuant to section 626.557 made by the facility or agent of the facility against the person advocating on behalf of the resident.

 

(d) The presumption does not apply to a termination of a contract of admission, as that term is defined under section 144.6501, subdivision 1, for a reason permitted under state or federal law.

 

Subd. 6.  Remedy.  A resident who meets the criteria under section 325F.71, subdivision 1, has a cause of action under section 325F.71, subdivision 4, for the violation of this section, unless the resident otherwise has a cause of action under section 626.557, subdivision 17.

 

EFFECTIVE DATE.  This section is effective August 1, 2019, and expires July 31, 2021.

 

Sec. 2.  [144G.08] DECEPTIVE MARKETING AND BUSINESS PRACTICES PROHIBITED.

 

Subdivision 1.  Prohibitions.  (a) No employee or agent of any facility may make any false, fraudulent, deceptive, or misleading statements or representations or material omissions in marketing, advertising, or any other description or representation of care or services.

 

(b) No housing with services contract as required under section 144D.04, subdivision 1, may include any provision that the facility knows or should know to be deceptive, unlawful, or unenforceable under state or federal law, nor include any provision that requires or implies a lesser standard of care or responsibility than is required by law.

 

(c) No facility may advertise or represent that the facility has a dementia care unit without complying with disclosure requirements under section 325F.72 and any training requirements required by law or rule.

 

Subd. 2.  Remedies.  (a) A violation of this section constitutes a violation of section 325F.69, subdivision 1.  The attorney general or a county attorney may enforce this section using the remedies in section 325F.70.

 

(b) A resident who meets the criteria under section 325F.71, subdivision 1, has a cause of action under section 325F.71, subdivision 4, for the violation of this section, unless the resident otherwise has a cause of action under section 626.557, subdivision 17.

 

EFFECTIVE DATE.  This section is effective August 1, 2019, and expires July 31, 2021.

 

ARTICLE 4

INDEPENDENT SENIOR LIVING FACILITIES

 

Section 1.  [144K.01] DEFINITIONS.

 

Subdivision 1.  Applicability.  For the purposes of this chapter, the definitions in this section have the meanings given.


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Subd. 2.  Dementia.  "Dementia" has the meaning given in section 144I.01, subdivision 16.

 

Subd. 3.  Designated representative.  "Designated representative" means a person designated in writing by the resident in a residency and services contract and identified in the resident's records on file with the independent senior living facility.

 

Subd. 4.  Facility.  "Facility" means an independent senior living facility.

 

Subd. 5.  Independent senior living facility.  "Independent senior living facility" means a facility that for a fee provides sleeping accommodations to one or more adults and offers or provides one or more supportive services directly or through a related supportive services provider.  For purposes of this chapter, independent senior living facility does not include:

 

(1) emergency shelter, transitional housing, or any other residential units serving exclusively or primarily homeless individuals, as defined under section 116L.361;

 

(2) a nursing home licensed under chapter 144A;

 

(3) a hospital, certified boarding care home, or supervised living facility licensed under sections 144.50 to 144.56;

 

(4) a lodging establishment licensed under chapter 157 and Minnesota Rules, parts 9520.0500 to 9520.0670, or under chapter 245D or 245G;

 

(5) a lodging establishment serving as a shelter for individuals fleeing domestic violence;

 

(6) services and residential settings licensed under chapter 245A, including adult foster care and services and settings governed under the standards in chapter 245D;

 

(7) private homes where the residents own or rent the home and control all aspects of the property and building;

 

(8) a duly organized condominium, cooperative, and common interest community, or owners' association of the condominium, cooperative, and common interest community where at least 80 percent of the units that comprise the condominium, cooperative, or common interest community are occupied by individuals who are the owners, members, or shareholders of the units;

 

(9) temporary family health care dwellings as defined in sections 394.307 and 462.3593;

 

(10) settings offering services conducted by and for the adherents of any recognized church or religious denomination for its members through spiritual means or by prayer for healing;

 

(11) housing financed pursuant to sections 462A.37 and 462A.375, units financed with low-income housing tax credits pursuant to United States Code, title 26, section 42, and units financed by the Minnesota Housing Finance Agency that are intended to serve individuals with disabilities or individuals who are homeless;

 

(12) rental housing developed under United States Code, title 42, section 1437, or United States Code, title 12, section 1701q;

 

(13) rental housing designated for occupancy by only elderly or elderly and disabled residents under United States Code, title 42, section 1437e, or rental housing for qualifying families under Code of Federal Regulations, title 24, section 983.56;


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(14) rental housing funded under United States Code, title 42, chapter 89, or United States Code, title 42, section 8011; or

 

(15) an assisted living facility or assisted living facility with dementia care licensed under chapter 144I.

 

Subd. 6.  Manager.  "Manager" means a manager of an independent senior living facility.

 

Subd. 7.  Residency and services contract or contract.  "Residency and services contract" or "contract" means the legal agreement between an independent senior living facility and a resident for the provision of housing and supportive services.

 

Subd. 8.  Related supportive services provider.  "Related supportive services provider" means a service provider that provides supportive services to a resident under a business relationship or other affiliation with the independent senior living facility.

 

Subd. 9.  Resident.  "Resident" means a person residing in an independent senior living facility.

 

Subd. 10.  Supportive services.  "Supportive services" means:

 

(1) assistance with laundry, shopping, and household chores;

 

(2) housekeeping services;

 

(3) provision of meals or assistance with meals or food preparation;

 

(4) help with arranging, or arranging transportation to, medical, social, recreational, personal, or social services appointments; or

 

(5) provision of social or recreational services.

 

Arranging for services does not include making referrals or contacting a service provider in an emergency.

 

Subd. 11.  Wellness check services.  "Wellness check services" means having, maintaining, and documenting a system to, by any means, check on the health, safety, and well-being of a resident. 

 

Sec. 2.  [144K.02] DECEPTIVE MARKETING AND BUSINESS PRACTICES PROHIBITED.

 

(a) No employee or agent of any independent senior living facility may make any false, fraudulent, deceptive, or misleading statements or representations or material omissions in marketing, advertising, or any other description or representation of care or services.

 

(b) No residency and services contract required under section 144K.03, subdivision 1, may include any provision that the facility knows or should know to be deceptive, unlawful, or unenforceable under state or federal law.

 

(c) No facility may advertise or represent that the facility is an assisted living facility as defined in section 144I.01, subdivision 6, or an assisted living facility with dementia care as defined in section 144I.01, subdivision 8.

 

Sec. 3.  [144K.025] REQUIRED DISCLOSURE BY FACILITY.

 

An independent senior living facility must disclose to prospective residents and residents that the facility is not licensed as an assisted living facility and is not permitted to provide assisted living services, as defined in section 144I.01, subdivision 7, either directly or through a provider under a business relationship or other affiliation with the facility.


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Sec. 4.  [144K.03] RESIDENCY AND SERVICES CONTRACT.

 

Subdivision 1.  Contract required.  (a) No independent senior living facility may operate in this state unless a written contract that meets the requirements of subdivision 2 is executed between the facility and each resident and unless the establishment operates in accordance with the terms of the contract.

 

(b) The facility must give a complete copy of any signed contract and any addendums, and all supporting documents and attachments, to the resident promptly after a contract and any addendums have been signed by the resident.

 

(c) The contract must contain all the terms concerning the provision of housing and supportive services, whether the services are provided directly or through a related supportive services provider.

 

Subd. 2.  Contents of contract.  A residency and services contract must include at least the following elements in itself or through supporting documents or attachments:

 

(1) the name, telephone number, and physical mailing address, which may not be a public or private post office box, of:

 

(i) the facility and, where applicable, the related supportive services provider;

 

(ii) the managing agent of the facility, if applicable; and

 

(iii) at least one natural person who is authorized to accept service of process on behalf of the facility;

 

(2) the term of the contract;

 

(3) a description of all the terms and conditions of the contract, including a description of the services to be provided and any limitations to the services provided to the resident for the contracted amount;

 

(4) a delineation of the grounds under which the resident may be evicted or have services terminated;

 

(5) billing and payment procedures and requirements;

 

(6) a statement regarding the ability of a resident to receive services from service providers with whom the facility does not have a business relationship;

 

(7) a description of the facility's complaint resolution process available to residents, including the name and contact information of the person representing the facility who is designated to handle and resolve complaints;

 

(8) the toll-free complaint line for the Office of Ombudsman for Long-Term Care; and

 

(9) a statement regarding the availability of and contact information for long-term care consultation services under section 256B.0911 in the county in which the facility is located.

 

Subd. 3.  Designation of representative.  (a) Before or at the time of execution of a residency and services contract, every facility must offer the resident the opportunity to identify a designated representative in writing in the contract and provide the following verbatim notice on a document separate from the contract:


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RIGHT TO DESIGNATE A REPRESENTATIVE FOR CERTAIN PURPOSES.

 

You have the right to name anyone as your "Designated Representative" to assist you or, if you are unable, advocate on your behalf.  A "Designated Representative" does not take the place of your guardian, conservator, power of attorney ("attorney-in-fact"), or health care power of attorney ("health care agent").

 

(b) The contract must contain a page or space for the name and contact information of the designated representative and a box the resident must initial if the resident declines to name a designated representative.  Notwithstanding subdivision 5, the resident has the right at any time to add or change the name and contact information of the designated representative.

 

Subd. 4.  Contracts are consumer contracts.  A contract under this section is a consumer contract under sections 325G.29 to 325G.37.

 

Subd. 5.  Additions and amendments to contract.  The resident must agree in writing to any additions or amendments to the contract.  Upon agreement between the resident or resident's designated representative and the facility, a new contract or an addendum to the existing contract must be executed and signed and provided to the resident and the resident's legal representative.

 

Subd. 6.  Contracts in permanent files.  Residency and services contracts and related documents executed by each resident must be maintained by the facility in files from the date of execution until three years after the contract is terminated.

 

Subd. 7.  Waivers of liability prohibited.  The contract must not include a waiver of facility liability for the health and safety or personal property of a resident.  The contract must not include any provision that the facility knows or should know to be deceptive, unlawful, or unenforceable under state or federal law, and must not include any provision that requires or implies a lesser standard of responsibility than is required by law.

 

Subd. 8.  Contract restriction.  No independent senior living facility may offer wellness check services.

 

Sec. 5.  [144K.04] TERMINATION OF RESIDENCY AND SERVICES CONTRACT.

 

Subdivision 1.  Notice required.  An independent senior living facility must provide at least 30 days prior notice of a termination of the residency and services contract.

 

Subd. 2.  Content of notice.  The notice required under subdivision 1 must contain, at a minimum:

 

(1) the effective date of termination of the contract;

 

(2) a detailed explanation of the basis for the termination;

 

(3) a list of known facilities in the immediate geographic area;

 

(4) information on how to contact the Office of Ombudsman for Long-Term Care and the Ombudsman for Mental Health and Developmental Disabilities;

 

(6) a statement of any steps the resident can take to avoid termination;

 

(7) the name and contact information of a person employed by the facility with whom the resident may discuss the notice of termination and, without extending the termination notice period, an affirmative offer to meet with the resident and any person or persons of the resident's choosing to discuss the termination;


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(8) a statement that, with respect to the notice of termination, reasonable accommodation is available for a resident with a disability; and

 

(9) an explanation that:

 

(i) the resident must vacate the apartment, along with all personal possessions, on or before the effective date of termination;

 

(ii) failure to vacate the apartment by the date of termination may result in the filing of an eviction action in court by the facility, and that the resident may present a defense, if any, to the court at that time; and

 

(iii) the resident may seek legal counsel in connection with the notice of termination.

 

Sec. 6.  [144K.05] MANAGER REQUIREMENTS.

 

(a) The manager of an independent senior living facility must obtain at least 30 hours of continuing education every two years of employment as the manager in topics relevant to the operations of the facility and the needs of its residents.  Continuing education earned to maintain a professional license, such as a nursing home administrator license, nursing license, social worker license, or real estate license, may be used to satisfy this requirement.  The continuing education must include at least four hours of documented training on dementia and related disorders, activities of daily living, problem solving with challenging behaviors, and communication skills within 160 working hours of hire and two hours of training on these topics for each 12 months of employment thereafter.

 

(b) The facility must maintain records for at least three years demonstrating that the manager has attended educational programs as required by this section.  New managers may satisfy the initial dementia training requirements by producing written proof of having previously completed required training within the past 18 months.

 

Sec. 7.  [144K.06] FIRE PROTECTION AND PHYSICAL ENVIRONMENT.

 

Subdivision 1.  Comprehensive fire protection system required.  Every independent senior living facility must have a comprehensive fire protection system that includes:

 

(1) protection throughout the facility by an approved supervised automatic sprinkler system according to building code requirements established in Minnesota Rules, part 1305.0903, or smoke detectors in each occupied room installed and maintained in accordance with the National Fire Protection Association (NFPA) Standard 72;

 

(2) portable fire extinguishers installed and tested in accordance with the NFPA Standard 10; and

 

(3) the physical environment, including walls, floors, ceiling, all furnishings, grounds, systems, and equipment kept in a continuous state of good repair and operation with regard to the health, safety, comfort, and well-being of the residents in accordance with a maintenance and repair program.

 

Subd. 2.  Fire drills.  Fire drills shall be conducted in accordance with the residential board and care requirements in the Life Safety Code.

 

Sec. 8.  [144K.07] EMERGENCY PLANNING.

 

Subdivision 1.  Requirements.  Each independent senior living facility must meet the following requirements:


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(1) have a written emergency disaster plan that contains a plan for evacuation, addresses elements of sheltering in-place, identifies temporary relocation sites, and details staff assignments in the event of a disaster or an emergency;

 

(2) post an emergency disaster plan prominently;

 

(3) provide building emergency exit diagrams to all residents upon signing a residency and services contract;

 

(4) post emergency exit diagrams on each floor; and

 

(5) have a written policy and procedure regarding missing residents.

 

Subd. 2.  Emergency and disaster training.  Each independent senior living facility must provide emergency and disaster training to all staff during the initial staff orientation and annually thereafter and must make emergency and disaster training available to all residents annually.  Staff who have not received emergency and disaster training are allowed to work only when trained staff are also working on site.

 

Sec. 9.  [144K.08] OTHER LAWS.

 

An independent senior living facility must comply with chapter 504B and must obtain and maintain all other licenses, permits, registrations, or other governmental approvals required of it.

 

EFFECTIVE DATE.  This section is effective August 1, 2021.

 

Sec. 10.  [144K.09] ENFORCEMENT.

 

(a) A violation of this chapter constitutes a violation of section 325F.69, subdivision 1.  The attorney general may enforce this section using the remedies in section 325F.70.

 

(b) A resident who meets the criteria in section 325F.71, subdivision 1, has a cause of action under section 325F.71, subdivision 4, for a violation of this chapter.

 

EFFECTIVE DATE.  This section is effective August 1, 2021.

 

ARTICLE 5

ASSISTED LIVING LICENSURE

 

Section 1.  Minnesota Statutes 2018, section 144.122, is amended to read:

 

144.122 LICENSE, PERMIT, AND SURVEY FEES.

 

(a) The state commissioner of health, by rule, may prescribe procedures and fees for filing with the commissioner as prescribed by statute and for the issuance of original and renewal permits, licenses, registrations, and certifications issued under authority of the commissioner.  The expiration dates of the various licenses, permits, registrations, and certifications as prescribed by the rules shall be plainly marked thereon.  Fees may include application and examination fees and a penalty fee for renewal applications submitted after the expiration date of the previously issued permit, license, registration, and certification.  The commissioner may also prescribe, by rule, reduced fees for permits, licenses, registrations, and certifications when the application therefor is submitted during the last three months of the permit, license, registration, or certification period.  Fees proposed to be prescribed in the rules shall be first approved by the Department of Management and Budget.  All fees proposed to be prescribed in rules shall be reasonable.  The fees shall be in an amount so that the total fees collected by the commissioner will,


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where practical, approximate the cost to the commissioner in administering the program.  All fees collected shall be deposited in the state treasury and credited to the state government special revenue fund unless otherwise specifically appropriated by law for specific purposes.

 

(b) The commissioner may charge a fee for voluntary certification of medical laboratories and environmental laboratories, and for environmental and medical laboratory services provided by the department, without complying with paragraph (a) or chapter 14.  Fees charged for environment and medical laboratory services provided by the department must be approximately equal to the costs of providing the services.

 

(c) The commissioner may develop a schedule of fees for diagnostic evaluations conducted at clinics held by the services for children with disabilities program.  All receipts generated by the program are annually appropriated to the commissioner for use in the maternal and child health program.

 

(d) The commissioner shall set license fees for hospitals and nursing homes that are not boarding care homes at the following levels:

 

Joint Commission on Accreditation of Healthcare Organizations (JCAHO) and American Osteopathic Association (AOA) hospitals

 

 

$7,655 plus $16 per bed

Non-JCAHO and non-AOA hospitals

$5,280 plus $250 per bed

Nursing home

$183 plus $91 per bed until June 30, 2018.  $183 plus $100 per bed between July 1, 2018, and June 30, 2020.  $183 plus $105 per bed beginning July 1, 2020. 

 

The commissioner shall set license fees for outpatient surgical centers, boarding care homes, and supervised living facilities, assisted living facilities, and assisted living facilities with dementia care at the following levels:

 

Outpatient surgical centers

$3,712

Boarding care homes

$183 plus $91 per bed

Supervised living facilities

$183 plus $91 per bed. 

Assisted living facilities with dementia care

$....... plus $....... per bed. 

Assisted living facilities

$....... plus $....... per bed. 

 

Fees collected under this paragraph are nonrefundable.  The fees are nonrefundable even if received before July 1, 2017, for licenses or registrations being issued effective July 1, 2017, or later.

 

(e) Unless prohibited by federal law, the commissioner of health shall charge applicants the following fees to cover the cost of any initial certification surveys required to determine a provider's eligibility to participate in the Medicare or Medicaid program:

 

Prospective payment surveys for hospitals

 

$900

Swing bed surveys for nursing homes

 

$1,200

Psychiatric hospitals

 

$1,400

Rural health facilities

 

$1,100

Portable x-ray providers

 

$500

Home health agencies

 

$1,800

Outpatient therapy agencies

 

$800

End stage renal dialysis providers

 

$2,100

Independent therapists

 

$800

Comprehensive rehabilitation outpatient facilities

 

$1,200

Hospice providers

 

$1,700


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Ambulatory surgical providers

 

$1,800

Hospitals

 

$4,200

Other provider categories or additional resurveys required to complete initial certification

Actual surveyor costs:  average surveyor cost x number of hours for the survey process. 

 

These fees shall be submitted at the time of the application for federal certification and shall not be refunded.  All fees collected after the date that the imposition of fees is not prohibited by federal law shall be deposited in the state treasury and credited to the state government special revenue fund.

 

Sec. 2.  [144I.01] DEFINITIONS.

 

Subdivision 1.  Applicability.  For the purposes of this chapter, the definitions in this section have the meanings given.

 

Subd. 2.  Adult.  "Adult" means a natural person who has attained the age of 18 years.

 

Subd. 3.  Agent.  "Agent" means the person upon whom all notices and orders shall be served and who is authorized to accept service of notices and orders on behalf of the facility.

 

Subd. 4.  Applicant.  "Applicant" means an individual, legal entity, controlling individual, or other organization that has applied for licensure under this chapter.

 

Subd. 5.  Assisted living administrator.  "Assisted living administrator" means a person who administers, manages, supervises, or is in general administrative charge of an assisted living facility, whether or not the individual has an ownership interest in the facility, and whether or not the person's functions or duties are shared with one or more individuals and who is licensed by the Board of Executives for Long Term Services and Supports pursuant to section 144I.31.

 

Subd. 6.  Assisted living facility.  "Assisted living facility" means a licensed facility that:  (1) provides sleeping accommodations to one or more adults; and (2) provides basic care services and comprehensive assisted living services.  For purposes of this chapter, assisted living facility does not include:

 

(i) emergency shelter, transitional housing, or any other residential units serving exclusively or primarily homeless individuals, as defined under section 116L.361;

 

(ii) a nursing home licensed under chapter 144A;

 

(iii) a hospital, certified boarding care, or supervised living facility licensed under sections 144.50 to 144.56;

 

(iv) a lodging establishment licensed under chapter 157 and Minnesota Rules, parts 9520.0500 to 9520.0670, or under chapter 245D or 245G, except lodging establishments that provide dementia care services;

 

(v) a lodging establishment serving as a shelter for individuals fleeing domestic violence;

 

(vi) services and residential settings licensed under chapter 245A, including adult foster care and services and settings governed under the standards in chapter 245D;

 

(vii) private homes where the residents own or rent the home and control all aspects of the property and building;


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(viii) a duly organized condominium, cooperative, and common interest community, or owners' association of the condominium, cooperative, and common interest community where at least 80 percent of the units that comprise the condominium, cooperative, or common interest community are occupied by individuals who are the owners, members, or shareholders of the units;

 

(ix) temporary family health care dwellings as defined in sections 394.307 and 462.3593;

 

(x) settings offering services conducted by and for the adherents of any recognized church or religious denomination for its members through spiritual means or by prayer for healing;

 

(xi) housing financed pursuant to sections 462A.37 and 462A.375, units financed with low-income housing tax credits pursuant to United States Code, title 26, section 42, and units financed by the Minnesota Housing Finance Agency that are intended to serve individuals with disabilities or individuals who are homeless;

 

(xii) rental housing developed under United States Code, title 42, section 1437, or United States Code, title 12, section 1701q;

 

(xiii) rental housing designated for occupancy by only elderly or elderly and disabled residents under United States Code, title 42, section 1437e, or rental housing for qualifying families under Code of Federal Regulations, title 24, section 983.56; or

 

(xiv) rental housing funded under United States Code, title 42, chapter 89, or United States Code, title 42, section 8011.

 

Subd. 7.  Assisted living services.  "Assisted living services" include any of the basic care services and one or more of the following:

 

(1) services of an advanced practice nurse, registered nurse, licensed practical nurse, physical therapist, respiratory therapist, occupational therapist, speech-language pathologist, dietitian or nutritionist, or social worker;

 

(2) tasks delegated to unlicensed personnel by a registered nurse or assigned by a licensed health professional within the person's scope of practice;

 

(3) medication management services;

 

(4) hands-on assistance with transfers and mobility;

 

(5) treatment and therapies;

 

(6) assisting residents with eating when the clients have complicated eating problems as identified in the resident record or through an assessment such as difficulty swallowing, recurrent lung aspirations, or requiring the use of a tube or parenteral or intravenous instruments to be fed; or

 

(7) providing other complex or specialty health care services.

 

Subd. 8.  Assisted living facility with dementia care.  "Assisted living facility with dementia care" means a licensed assisted living facility that also provides dementia care services.  An assisted living facility with dementia care may also have a secured dementia care unit.

 

Subd. 9.  Assisted living facility contract.  "Assisted living facility contract" means the legal agreement between an assisted living facility and a resident for the provision of housing and services.

Subd. 10.  Basic care services.  "Basic care services" means assistive tasks provided by licensed or unlicensed personnel that include:

 

(1) assisting with dressing, self-feeding, oral hygiene, hair care, grooming, toileting, and bathing;

 


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(2) providing standby assistance;

 

(3) providing verbal or visual reminders to the resident to take regularly scheduled medication, which includes bringing the client previously set-up medication, medication in original containers, or liquid or food to accompany the medication;

 

(4) providing verbal or visual reminders to the client to perform regularly scheduled treatments and exercises;

 

(5) preparing modified diets ordered by a licensed health professional;

 

(6) having, maintaining, and documenting a system to, by any means, check on the health, safety, and well-being of a resident; and

 

(7) supportive services in addition to the provision of at least one of the activities in clauses (1) to (5).

 

Subd. 11.  Change of ownership.  "Change of ownership" means a change in the individual or legal entity that is responsible for the operation of a facility.

 

Subd. 12.  Commissioner.  "Commissioner" means the commissioner of health.

 

Subd. 13.  Compliance officer.  "Compliance officer" means a designated individual who is qualified by knowledge, training, and experience in health care or risk management to promote, implement, and oversee the facility's compliance program.  The compliance officer shall also exhibit knowledge of relevant regulations; provide expertise in compliance processes; and address fraud, abuse, and waste under this chapter and state and federal law.

 

Subd. 14.  Controlled substance.  "Controlled substance" has the meaning given in section 152.01, subdivision 4.

 

Subd. 15.  Controlling individual.  (a) "Controlling individual" means an owner of a facility licensed under this chapter and the following individuals, if applicable:

 

(1) each officer of the organization, including the chief executive officer and chief financial officer;

 

(2) the individual designated as the authorized agent under section 245A.04, subdivision 1, paragraph (b);

 

(3) the individual designated as the compliance officer under section 256B.04, subdivision 21, paragraph (b); and

 

(4) each managerial official whose responsibilities include the direction of the management or policies of the facility.

 

(b) Controlling individual also means any owner who directly or indirectly owns five percent or more interest in:

 

(1) the land on which the facility is located, including a real estate investment trust (REIT);

 

(2) the structure in which a facility is located;

 

(3) any mortgage, contract for deed, or other obligation secured in whole or part by the land or structure comprising the facility; or

 

(4) any lease or sublease of the land, structure, or facilities comprising the facility.

 

(c) Controlling individual does not include:


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(1) a bank, savings bank, trust company, savings association, credit union, industrial loan and thrift company, investment banking firm, or insurance company unless the entity operates a program directly or through a subsidiary;

 

(2) government and government-sponsored entities such as the U.S. Department of Housing and Urban Development, Ginnie Mae, Fannie Mae, Freddie Mac, and the Minnesota Housing Finance Agency which provide loans, financing, and insurance products for housing sites;

 

(3) an individual who is a state or federal official, or a state or federal employee, or a member or employee of the governing body of a political subdivision of the state or federal government that operates one or more facilities, unless the individual is also an officer, owner, or managerial official of the facility, receives remuneration from the facility, or owns any of the beneficial interests not excluded in this subdivision;

 

(4) an individual who owns less than five percent of the outstanding common shares of a corporation:

 

(i) whose securities are exempt under section 80A.45, clause (6); or

 

(ii) whose transactions are exempt under section 80A.46, clause (2);

 

(5) an individual who is a member of an organization exempt from taxation under section 290.05, unless the individual is also an officer, owner, or managerial official of the license or owns any of the beneficial interests not excluded in this subdivision.  This clause does not exclude from the definition of controlling individual an organization that is exempt from taxation; or

 

(6) an employee stock ownership plan trust, or a participant or board member of an employee stock ownership plan, unless the participant or board member is a controlling individual.

 

Subd. 16.  Dementia.  "Dementia" means the loss of intellectual function of sufficient severity that interferes with an individual's daily functioning.  Dementia affects an individual's memory and ability to think, reason, speak, and move.  Symptoms may also include changes in personality, mood, and behavior.  Irreversible dementias include but are not limited to:

 

(1) Alzheimer's disease;

 

(2) vascular dementia;

 

(3) Lewy body dementia;

 

(4) frontal-temporal lobe dementia;

 

(5) alcohol dementia;

 

(6) Huntington's disease; and

 

(7) Creutzfeldt-Jakob disease.

 

Subd. 17.  Dementia care services.  "Dementia care services" means a distinct form of long-term care designed to meet the specific needs of an individual with dementia.


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Subd. 18.  Dementia-trained staff.  "Dementia-trained staff" means any employee that has completed the minimum training requirements and has demonstrated knowledge and understanding in supporting individuals with dementia.

 

Subd. 19.  Designated representative.  "Designated representative" means one of the following in the order of priority listed, to the extent the person may reasonably be identified and located:

 

(1) a court-appointed guardian acting in accordance with the powers granted to the guardian under chapter 524;

 

(2) a conservator acting in accordance with the powers granted to the conservator under chapter 524;

 

(3) a health care agent acting in accordance with the powers granted to the health care agent under chapter 145C;

 

(4) a power of attorney acting in accordance with the powers granted to the attorney-in-fact under chapter 523; or

 

(5) the resident representative.

 

Subd. 20.  Dietary supplement.  "Dietary supplement" means a product taken by mouth that contains a dietary ingredient intended to supplement the diet.  Dietary ingredients may include vitamins, minerals, herbs or other botanicals, amino acids, and substances such as enzymes, organ tissue, glandulars, or metabolites.

 

Subd. 21.  Direct contact.  "Direct contact" means providing face-to-face care, training, supervision, counseling, consultation, or medication assistance to residents of a facility.

 

Subd. 22.  Direct ownership interest.  "Direct ownership interest" means an individual or organization with the possession of at least five percent equity in capital, stock, or profits of an organization, or who is a member of a limited liability company.  An individual with a five percent or more direct ownership is presumed to have an effect on the operation of the facility with respect to factors affecting the care or training provided.

 

Subd. 23.  Facility.  "Facility" means an assisted living facility and an assisted living facility with dementia care.

 

Subd. 24.  Hands-on assistance.  "Hands-on assistance" means physical help by another person without which the resident is not able to perform the activity.

 

Subd. 25.  Indirect ownership interest.  "Indirect ownership interest" means an individual or organization with a direct ownership interest in an entity that has a direct or indirect ownership interest in a facility of at least five percent or more.  An individual with a five percent or more indirect ownership is presumed to have an effect on the operation of the facility with respect to factors affecting the care or training provided.

 

Subd. 26.  Licensed health professional.  "Licensed health professional" means a person licensed in Minnesota to practice the professions described in section 214.01, subdivision 2.

 

Subd. 27.  Licensed resident bed capacity.  "Licensed resident bed capacity" means the resident occupancy level requested by a licensee and approved by the commissioner.

 

Subd. 28.  Licensee.  "Licensee" means a person or legal entity to whom the commissioner issues a license for a facility and who is responsible for the management, control, and operation of a facility.  A facility must be managed, controlled, and operated 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.


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Subd. 29.  Maltreatment.  "Maltreatment" means conduct described in section 626.5572, subdivision 15, or the intentional and nontherapeutic infliction of physical pain or injury or any persistent course of conduct intended to produce mental or emotional distress.

 

Subd. 30.  Management agreement.  "Management agreement" means a written, executed agreement between a licensee and manager regarding the provision of certain services on behalf of the licensee.

 

Subd. 31.  Managerial official.  "Managerial official" means an individual who has the decision-making authority related to the operation of the facility and the responsibility for the ongoing management or direction of the policies, services, or employees of the facility.

 

Subd. 32.  Medication.  "Medication" means a prescription or over-the-counter drug.  For purposes of this chapter only, medication includes dietary supplements.

 

Subd. 33.  Medication administration.  "Medication administration" means performing a set of tasks that includes the following:

 

(1) checking the resident's medication record;

 

(2) preparing the medication as necessary;

 

(3) administering the medication to the resident;

 

(4) documenting the administration or reason for not administering the medication; and

 

(5) reporting to a registered nurse or appropriate licensed health professional any concerns about the medication, the resident, or the resident's refusal to take the medication.

 

Subd. 34.  Medication management.  "Medication management" means the provision of any of the following medication-related services to a resident:

 

(1) performing medication setup;

 

(2) administering medications;

 

(3) storing and securing medications;

 

(4) documenting medication activities;

 

(5) verifying and monitoring the effectiveness of systems to ensure safe handling and administration;

 

(6) coordinating refills;

 

(7) handling and implementing changes to prescriptions;

 

(8) communicating with the pharmacy about the resident's medications; and

 

(9) coordinating and communicating with the prescriber.

 

Subd. 35.  Medication reconciliation.  "Medication reconciliation" means the process of identifying the most accurate list of all medications the resident is taking, including the name, dosage, frequency, and route by comparing the resident record to an external list of medications obtained from the resident, hospital, prescriber or other provider.


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Subd. 36.  Medication setup.  "Medication setup" means arranging medications by a nurse, pharmacy, or authorized prescriber for later administration by the resident or by facility staff.

 

Subd. 37.  New construction.  "New construction" means a new building, renovation, modification, reconstruction, physical changes altering the use of occupancy, or an addition to a building.

 

Subd. 38.  Nurse.  "Nurse" means a person who is licensed under sections 148.171 to 148.285.

 

Subd. 39.  Occupational therapist.  "Occupational therapist" means a person who is licensed under sections 148.6401 to 148.6449.

 

Subd. 40.  Ombudsman.  "Ombudsman" means the ombudsman for long-term care.

 

Subd. 41.  Owner.  "Owner" means an individual or organization that has a direct or indirect ownership interest of five percent or more in a facility.  For purposes of this chapter, "owner of a nonprofit corporation" means the president and treasurer of the board of directors or, for an entity owned by an employee stock ownership plan, means the president and treasurer of the entity.  A government entity that is issued a license under this chapter shall be designated the owner.  An individual with a five percent or more direct or indirect ownership is presumed to have an effect on the operation of the facility with respect to factors affecting the care or training provided.

 

Subd. 42.  Over-the-counter drug.  "Over-the-counter drug" means a drug that is not required by federal law to bear the symbol "Rx only."

 

Subd. 43.  Person-centered planning and service delivery.  "Person-centered planning and service delivery" means services as defined in section 245D.07, subdivision 1a, paragraph (b).

 

Subd. 44.  Pharmacist.  "Pharmacist" has the meaning given in section 151.01, subdivision 3.

 

Subd. 45.  Physical therapist.  "Physical therapist" means a person who is licensed under sections 148.65 to 148.78.

 

Subd. 46.  Physician.  "Physician" means a person who is licensed under chapter 147.

 

Subd. 47.  Prescriber.  "Prescriber" means a person who is authorized by sections 148.235; 151.01, subdivision 23; and 151.37 to prescribe prescription drugs.

 

Subd. 48.  Prescription.  "Prescription" has the meaning given in section 151.01, subdivision 16a.

 

Subd. 49.  Provisional license.  "Provisional license" means the initial license the department issues after approval of a complete written application and before the department completes the provisional license survey and determines that the provisional licensee is in substantial compliance.

 

Subd. 50.  Regularly scheduled.  "Regularly scheduled" means ordered or planned to be completed at predetermined times or according to a predetermined routine.

 

Subd. 51.  Reminder.  "Reminder" means providing a verbal or visual reminder to a resident.

 

Subd. 52.  Resident.  "Resident" means a person living in an assisted living facility. 

 

Subd. 53.  Resident record.  "Resident record" means all records that document information about the services provided to the resident.


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Subd. 54.  Resident representative.  "Resident representative" means a person designated in writing by the resident and identified in the resident's records on file with the facility.

 

Subd. 55.  Respiratory therapist.  "Respiratory therapist" means a person who is licensed under chapter 147C.

 

Subd. 56.  Revenues.  "Revenues" means all money received by a licensee derived from the provision of home care services, including fees for services and appropriations of public money for home care services.

 

Subd. 57.  Service plan.  "Service plan" means the written plan between the resident or the resident's representative and the provisional licensee or licensee about the services that will be provided to the resident.

 

Subd. 58.  Social worker.  "Social worker" means a person who is licensed under chapter 148D or 148E.

 

Subd. 59.  Speech-language pathologist.  "Speech-language pathologist" has the meaning given in section 148.512.

 

Subd. 60.  Standby assistance.  "Standby assistance" means the presence of another person within arm's reach to minimize the risk of injury while performing daily activities through physical intervention or cueing to assist a resident with an assistive task by providing cues, oversight, and minimal physical assistance.

 

Subd. 61.  Substantial compliance.  "Substantial compliance" means complying with the requirements in this chapter sufficiently to prevent unacceptable health or safety risks to residents.

 

Subd. 62.  Supportive services.  "Supportive services" means: 

 

(1) assistance with laundry, shopping, and household chores;

 

(2) housekeeping services;

 

(3) provision or assistance with meals or food preparation;

 

(4) help with arranging for, or arranging transportation to medical, social, recreational, personal, or social services appointments; or

 

(5) provision of social or recreational services.

 

Arranging for services does not include making referrals, or contacting a service provider in an emergency.

 

Subd. 63.  Survey.  "Survey" means an inspection of a licensee or applicant for licensure for compliance with this chapter.

 

Subd. 64.  Surveyor.  "Surveyor" means a staff person of the department who is authorized to conduct surveys of assisted living facilities and applicants.

 

Subd. 65.  Termination of housing or services.  "Termination of housing or services" means a discharge, eviction, transfer, or service termination initiated by the facility.  A facility-initiated termination is one which the resident objects to and did not originate through a resident's verbal or written request.  A resident-initiated termination is one where a resident or, if appropriate, a designated representative provided a verbal or written notice of intent to leave the facility.  A resident-initiated termination does not include the general expression of a desire to return home or the elopement of residents with cognitive impairment.


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Subd. 66.  Treatment or therapy.  "Treatment" or "therapy" means the provision of care, other than medications, ordered or prescribed by a licensed health professional and provided to a resident to cure, rehabilitate, or ease symptoms.

 

Subd. 67.  Unit of government.  "Unit of government" means a city, county, town, school district, other political subdivision of the state, or an agency of the state or federal government, that includes any instrumentality of a unit of government.

 

Subd. 68.  Unlicensed personnel.  "Unlicensed personnel" means individuals not otherwise licensed or certified by a governmental health board or agency who provide services to a resident.

 

Subd. 69.  Verbal.  "Verbal" means oral and not in writing.

 

Sec. 3.  [144I.02] ASSISTED LIVING FACILITY LICENSE.

 

Subdivision 1.  License required.  Beginning August 1, 2021, an entity may not operate an assisted living facility in Minnesota unless it is licensed under this chapter.

 

Subd. 2.  Licensure categories.  (a) The categories in this subdivision are established for assisted living facility licensure.

 

(b) An assisted living category is an assisted living facility that provides basic care services and comprehensive assisted living services.

 

(c) An assisted living facility with dementia care category is an assisted living facility that provides basic care services, comprehensive assisted living services, and dementia care services.  An assisted living facility with dementia care may also provide dementia care services in a secure dementia care unit.

 

Subd. 3.  Violations; penalty.  (a) Operating a facility without a license is a misdemeanor punishable by a fine imposed by the commissioner.

 

(b) A controlling individual of the facility in violation of this section is guilty of a misdemeanor.  This paragraph shall not apply to any controlling individual who had no legal authority to affect or change decisions related to the operation of the facility.

 

(c) The sanctions in this section do not restrict other available sanctions in law.

 

Sec. 4.  [144I.03] PROVISIONAL LICENSE.

 

Subdivision 1.  Provisional license.  (a) Beginning August 1, 2021, for new applicants, the commissioner shall issue a provisional license to each of the licensure categories specified in section 144I.02, subdivision 2, which is effective for up to one year from the license effective date, except that a provisional license may be extended according to subdivision 2, paragraph (c).

 

(b) Assisted living facilities are subject to evaluation and approval by the commissioner of the facility's physical environment and its operational aspects before a change in ownership or capacity, or an addition of services which necessitates a change in the facility's physical environment.

 

Subd. 2.  Initial survey; licensure.  (a) During the provisional license period, the commissioner shall survey the provisional licensee after the commissioner is notified or has evidence that the provisional licensee has residents and is providing services.


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(b) Within two days of beginning to provide services, the provisional licensee must provide notice to the commissioner that it is serving residents by sending an e­mail to the e­mail address provided by the commissioner.  If the provisional licensee does not provide services during the provisional license year period, then the provisional license expires at the end of the period and the applicant must reapply for the provisional facility license.

 

(c) If the provisional licensee notifies the commissioner that the licensee has residents within 45 days prior to the provisional license expiration, the commissioner may extend the provisional license for up to 60 days in order to allow the commissioner to complete the on-site survey required under this section and follow-up survey visits.

 

(d) If the provisional licensee is in substantial compliance with the survey, the commissioner shall issue a facility license.  If the provisional licensee is not in substantial compliance with the initial survey, the commissioner shall either:  (1) not issue the facility license and terminate the provisional license; or (2) extend the provisional license for a period not to exceed 90 days and apply conditions necessary to bring the facility into substantial compliance.  If the provisional licensee is not in substantial compliance with the survey within the time period of the extension or if the provisional licensee does not satisfy the license conditions, the commissioner may deny the license.

 

Subd. 3.  Reconsideration.  (a) If a provisional licensee whose facility license has been denied or extended with conditions disagrees with the conclusions of the commissioner, then the provisional licensee may request a reconsideration by the commissioner or commissioner's designee.  The reconsideration request process must be conducted internally by the commissioner or designee and chapter 14 does not apply.

 

(b) The provisional licensee requesting the reconsideration must make the request in writing and must list and describe the reasons why the provisional licensee disagrees with the decision to deny the facility license or the decision to extend the provisional license with conditions.

 

(c) The reconsideration request and supporting documentation must be received by the commissioner within 15 calendar days after the date the provisional licensee receives the denial or provisional license with conditions.

 

Subd. 4.  Continued operation.  A provisional licensee whose license is denied is permitted to continue operating during the period of time when:

 

(1) a reconsideration is in process;

 

(2) an extension of the provisional license and terms associated with it is in active negotiation between the commissioner and the licensee and the commissioner confirms the negotiation is active; or

 

(3) a transfer of residents to a new facility is underway and not all of the residents have relocated.

 

Subd. 5.  Requirements for notice and transfer.  A provisional licensee whose license is denied must comply with the requirements for notification and transfer of residents in section 144J.08.

 

Subd. 6.  Fines.  The fee for failure to comply with the notification requirements in section 144J.08, subdivision 6, paragraph (b), is $1,000.

 

Sec. 5.  [144I.04] APPLICATION FOR LICENSURE.

 

Subdivision 1.  License applications.  (a) Each application for a facility license, including a provisional license, must include information sufficient to show that the applicant meets the requirements of licensure, including:


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(1) the business name and legal entity name of the operating entity; street address and mailing address of the facility; and the names, e­mail addresses, telephone numbers, and mailing addresses of all owners, controlling individuals, managerial officials, and the assisted living administrator;

 

(2) the name and e­mail address of the managing agent, if applicable;

 

(3) the licensed bed capacity and the license category;

 

(4) the license fee in the amount specified in section 144.122;

 

(5) any judgments, private or public litigation, tax liens, written complaints, administrative actions, or investigations by any government agency against the applicant, owner, controlling individual, managerial official, or assisted living administrator that are unresolved or otherwise filed or commenced within the preceding ten years;

 

(6) documentation of compliance with the background study requirements in section 144I.06 for the owner, controlling individuals, and managerial officials.  Each application for a new license must include documentation for the applicant and for each individual with five percent or more direct or indirect ownership in the applicant;

 

(7) evidence of workers' compensation coverage as required by sections 176.181 and 176.182;

 

(8) disclosure that the provider has no liability coverage or, if the provider has coverage, documentation of coverage;

 

(9) a copy of the executed lease agreement if applicable;

 

(10) a copy of the management agreement if applicable;

 

(11) a copy of the operations transfer agreement or similar agreement if applicable;

 

(12) a copy of the executed agreement if the facility has contracted services with another organization or individual for services such as managerial, billing, consultative, or medical personnel staffing;

 

(13) a copy of the organizational chart that identifies all organizations and individuals with any ownership interests in the facility;

 

(14) whether any applicant, owner, controlling individual, managerial official, or assisted living administrator of the facility has ever been convicted of a crime or found civilly liable for an offense involving moral turpitude, including forgery, embezzlement, obtaining money under false pretenses, larceny, extortion, conspiracy to defraud, or any other similar offense or violation; any violation of section 626.557 or any other similar law in any other state; or any violation of a federal or state law or regulation in connection with activities involving any consumer fraud, false advertising, deceptive trade practices, or similar consumer protection law;

 

(15) whether the applicant or any owner, controlling individual, managerial official, or assisted living administrator of the facility has a record of defaulting in the payment of money collected for others, including the discharge of debts through bankruptcy proceedings;

 

(16) documentation that the applicant has designated one or more owners, controlling individuals, or employees as an agent or agents, which shall not affect the legal responsibility of any other owner or controlling individual under this chapter;


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(17) the signature of the owner or owners, or an authorized agent of the owner or owners of the facility applicant.  An application submitted on behalf of a business entity must be signed by at least two owners or controlling individuals;

 

(18) identification of all states where the applicant or individual having a five percent or more ownership, currently or previously has been licensed as owner or operator of a long-term care, community-based, or health care facility or agency where its license or federal certification has been denied, suspended, restricted, conditioned, or revoked under a private or state-controlled receivership, or where these same actions are pending under the laws of any state or federal authority; and

 

(19) any other information required by the commissioner.

 

Subd. 2.  Agents.  (a) An application for a facility license or for renewal of a facility license must specify one or more owners, controlling individuals, or employees as agents:

 

(1) who shall be responsible for dealing with the commissioner on all requirements of this chapter; and

 

(2) on whom personal service of all notices and orders shall be made and who shall be authorized to accept service on behalf of all of the controlling individuals of the facility in proceedings under this chapter.

 

(b) Notwithstanding any law to the contrary, personal service on the designated person or persons named in the application is deemed to be service on all of the controlling individuals or managerial employees of the facility and it is not a defense to any action arising under this chapter that personal service was not made on each controlling individual or managerial official of the facility.  The designation of one or more controlling individuals or managerial officials under this subdivision shall not affect the legal responsibility of any other controlling individual or managerial official under this chapter.

 

Subd. 3.  Fees.  (a) An initial applicant, renewal applicant, or applicant filing a change of ownership for assisted living facility licensure must submit the application fee required in section 144I.122 to the commissioner along with a completed application.

 

(b) The penalty for late submission of the renewal application after expiration of the license is $200.  The penalty for operating a facility after expiration of the license and before a renewal license is issued, is $250 each day after expiration of the license until the renewal license issuance date.  The facility is still subject to the criminal gross misdemeanor penalties for operating after license expiration.

 

(c) Fees collected under this section shall be deposited in the state treasury and credited to the state government special revenue fund.  All fees are nonrefundable.

 

(d) Fines collected under this subdivision shall be deposited in a dedicated special revenue account.  On an annual basis, the balance in the special revenue account shall be appropriated to the commissioner to implement the recommendations of the advisory council established in section 144A.4799.

 

Sec. 6.  [144I.05] TRANSFER OF LICENSE PROHIBITED.

 

Subdivision 1.  Transfers prohibited.  Any facility license issued by the commissioner may not be transferred to another party.

 

Subd. 2.  New license required.  (a) Before acquiring ownership of a facility, a prospective applicant must apply for a new license.  The licensee of an assisted living facility must change whenever the following events occur, including but not limited to:


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(1) the licensee's form of legal organization is changed;

 

(2) the licensee transfers ownership of the facility business enterprise to another party regardless of whether ownership of some or all of the real property or personal property assets of the assisted living facility is also transferred;

 

(3) the licensee dissolves, consolidates, or merges with another legal organization and the licensee's legal organization does not survive;

 

(4) during any continuous 24-month period, 50 percent or more of the licensed entity is transferred, whether by a single transaction or multiple transactions, to:

 

(i) a different person; or

 

(ii) a person who had less than a five percent ownership interest in the facility at the time of the first transaction; or

 

(5) any other event or combination of events that results in a substitution, elimination, or withdrawal of the licensee's control of the facility.

 

(b) As used in this section, "control" means the possession, directly or indirectly, of the power to direct the management, operation, and policies of the licensee or facility, whether through ownership, voting control, by agreement, by contract, or otherwise.

 

(c) The current facility licensee must provide written notice to the department and residents, or designated representatives, at least 60 calendar days prior to the anticipated date of the change of licensee.

 

Subd. 3.  Survey required.  For all new licensees after a change in ownership, the commissioner shall complete a survey within six months after the new license is issued.

 

Sec. 7.  [144I.06] BACKGROUND STUDIES.

 

Subdivision 1.  Background studies required.  (a) Before the commissioner issues a provisional license, issues a license as a result of an approved change of ownership, or renews a license, a controlling individual or managerial official is required to complete a background study under section 144.057.  No person may be involved in the management, operation, or control of a facility if the person has been disqualified under chapter 245C.  For the purposes of this section, managerial officials subject to the background check requirement are individuals who provide direct contact.

 

(b) The commissioner shall not issue a license if the controlling individual or managerial official has been unsuccessful in having a background study disqualification set aside under section 144.057 and chapter 245C.

 

(c) Employees, contractors, and volunteers of the facility are subject to the background study required by section 144.057 and may be disqualified under chapter 245C.  Nothing in this section shall be construed to prohibit the facility from requiring self-disclosure of criminal conviction information.

 

Subd. 2.  Reconsideration.  If an individual is disqualified under section 144.057 or chapter 245C, the individual may request reconsideration of the disqualification.  If the individual requests reconsideration and the commissioner sets aside or rescinds the disqualification, the individual is eligible to be involved in the management, operation, or control of the facility.  If an individual has a disqualification under section 245C.15, subdivision 1, and the disqualification is affirmed, the individual's disqualification is barred from a set aside, and the individual must not be involved in the management, operation, or control of the facility.


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Subd. 3.  Data classification.  Data collected under this subdivision shall be classified as private data on individuals under section 13.02, subdivision 12.

 

Subd. 4.  Termination in good faith.  Termination of an employee in good faith reliance on information or records obtained under this section regarding a confirmed conviction does not subject the assisted living facility to civil liability or liability for unemployment benefits.

 

Sec. 8.  [144I.07] LICENSE RENEWAL.

 

Except as provided in section ......., a license that is not a provisional license may be renewed for a period of up to one year if the licensee satisfies the following:

 

(1) submits an application for renewal in the format provided by the commissioner at least 60 days before expiration of the license;

 

(2) submits the renewal fee under section 144I.04, subdivision 3;

 

(3) submits the late fee under section 144I.04, subdivision 3, if the renewal application is received less than 30 days before the expiration date of the license;

 

(4) provides information sufficient to show that the applicant meets the requirements of licensure, including items required under section 144I.04, subdivision 1; and

 

(5) provides any other information deemed necessary by the commissioner.

 

Sec. 9.  [144I.08] NOTIFICATION OF CHANGES IN INFORMATION.

 

A provisional licensee or licensee shall notify the commissioner in writing prior to any financial or contractual change and within 60 calendar days after any change in the information required in section 144I.04, subdivision 1.

 

Sec. 10.  [144I.09] CONSIDERATION OF APPLICATIONS.

 

(a) The commissioner shall consider an applicant's performance history in Minnesota and in other states, including repeat violations or rule violations, before issuing a provisional license, license, or renewal license.

 

(b) An applicant must not have a history within the last five years in Minnesota or in any other state of a license or certification involuntarily suspended or voluntarily terminated during any enforcement process in a facility that provides care to children, the elderly or ill individuals, or individuals with disabilities.

 

(c) Failure to provide accurate information or demonstrate required performance history may result in the denial of a license.

 

(d) The commissioner may deny, revoke, suspend, restrict, or refuse to renew the license or impose conditions if:

 

(1) the applicant fails to provide complete and accurate information on the application and the commissioner concludes that the missing or corrected information is needed to determine if a license shall be granted;

 

(2) the applicant, knowingly or with reason to know, made a false statement of a material fact in an application for the license or any data attached to the application or in any matter under investigation by the department;


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(3) the applicant refused to allow representatives or agents of the department to inspect its books, records, and files, or any portion of the premises;

 

(4) willfully prevented, interfered with, or attempted to impede in any way:  (i) the work of any authorized representative of the department, the ombudsman for long-term care, or the ombudsman for mental health and developmental disabilities; or (ii) the duties of the commissioner, local law enforcement, city or county attorneys, adult protection, county case managers, or other local government personnel;

 

(5) the applicant has a history of noncompliance with federal or state regulations that were detrimental to the health, welfare, or safety of a resident or a client; and

 

(6) the applicant violates any requirement in this chapter.

 

(e) For all new licensees after a change in ownership, the commissioner shall complete a survey within six months after the new license is issued.

 

Sec. 11.  [144I.10] MINIMUM ASSISTED LIVING FACILITY REQUIREMENTS.

 

Subdivision 1.  Minimum requirements.  All licensed facilities shall:

 

(1) distribute to residents, families, and resident representatives the assisted living bill of rights in section 144J.02;

 

(2) provide health-related services in a manner that complies with the Nurse Practice Act in sections 148.171 to 148.285;

 

(3) utilize person-centered planning and service delivery process as defined in section 245D.07;

 

(4) have and maintain a system for delegation of health care activities to unlicensed personnel by a registered nurse, including supervision and evaluation of the delegated activities as required by the Nurse Practice Act in sections 148.171 to 148.285;

 

(5) provide a means for residents to request assistance for health and safety needs 24 hours per day, seven days per week;

 

(6) allow residents the ability to furnish and decorate the resident's unit within the terms of the lease;

 

(7) permit residents access to food at any time;

 

(8) allow residents to choose the resident's visitors and times of visits;

 

(9) allow the resident the right to choose a roommate if sharing a unit;

 

(10) notify the resident of the resident's right to have and use a lockable door to the resident's unit.  The licensee shall provide the locks on the unit.  Only a staff member with a specific need to enter the unit shall have keys, and advance notice must be given to the resident before entrance, when possible;

 

(11) develop and implement a staffing plan for determining its staffing level that:

 

(i) includes an evaluation, to be conducted at least twice a year, of the appropriateness of staffing levels in the facility;


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(ii) ensures sufficient staffing at all times to meet the scheduled and reasonably foreseeable unscheduled needs of each resident as required by the residents' assessments and service plans on a 24-hour per day basis; and

 

(iii) ensures that the facility can respond promptly and effectively to individual resident emergencies and to emergency, life safety, and disaster situations affecting staff or residents in the facility;

 

(12) ensures that a person or persons are available 24 hours per day, seven days per week, who are responsible for responding to the requests of residents for assistance with health or safety needs, who shall be:

 

(i) awake;

 

(ii) located in the same building, in an attached building, or on a contiguous campus with the facility in order to respond within a reasonable amount of time;

 

(iii) capable of communicating with residents;

 

(iv) capable of providing or summoning the appropriate assistance; and

 

(v) capable of following directions.  For an assisted living facility providing dementia care, the awake person must be physically present in the locked or secure unit; and

 

(13) offer to provide or make available at least the following services to residents:

 

(i) at least three daily nutritious meals with snacks available seven days per week, according to the recommended dietary allowances in the United States Department of Agriculture (USDA) guidelines, including seasonal fresh fruit and fresh vegetables.  The following apply:

 

(A) modified special diets that are appropriate to residents' needs and choices;

 

(B) menus prepared at least one week in advance, and made available to all residents.  The facility must encourage residents' involvement in menu planning.  Meal substitutions must be of similar nutritional value if a resident refuses a food that is served.  Residents must be informed in advance of menu changes;

 

(C) food must be prepared and served according to the Minnesota Food Code, Minnesota Rules, chapter 4626; and

 

(D) the facility cannot require a resident to include and pay for meals in their contract;

 

(ii) weekly housekeeping;

 

(iii) weekly laundry service;

 

(iv) upon the request of the resident, provide direct or reasonable assistance with arranging for transportation to medical and social services appointments, shopping, and other recreation, and provide the name of or other identifying information about the person or persons responsible for providing this assistance;

 

(v) upon the request of the resident, provide reasonable assistance with accessing community resources and social services available in the community, and provide the name of or other identifying information about the person or persons responsible for providing this assistance; and


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(vi) have a daily program of social and recreational activities that are based upon individual and group interests, physical, mental, and psychosocial needs, and that creates opportunities for active participation in the community at large.

 

Subd. 2.  Policies and procedures.  (a) Each facility must have policies and procedures in place to address the following and keep them current:

 

(1) requirements in section 626.557, reporting of maltreatment of vulnerable adults;

 

(2) conducting and handling background studies on employees;

 

(3) orientation, training, and competency evaluations of staff, and a process for evaluating staff performance;

 

(4) handling complaints from residents, family members, or designated representatives regarding staff or services provided by staff;

 

(5) conducting initial evaluation of residents' needs and the providers' ability to provide those services;

 

(6) conducting initial and ongoing resident evaluations and assessments and how changes in a resident's condition are identified, managed, and communicated to staff and other health care providers as appropriate;

 

(7) orientation to and implementation of the assisted living bill of rights;

 

(8) infection control practices;

 

(9) reminders for medications, treatments, or exercises, if provided; and

 

(10) conducting appropriate screenings, or documentation of prior screenings, to show that staff are free of tuberculosis, consistent with current United States Centers for Disease Control and Prevention standards.

 

(b) For assisted living facilities and assisted living facilities with dementia care, the following are also required:

 

(1) conducting initial and ongoing assessments of the resident's needs by a registered nurse or appropriate licensed health professional, including how changes in the resident's conditions are identified, managed, and communicated to staff and other health care providers, as appropriate;

 

(2) ensuring that nurses and licensed health professionals have current and valid licenses to practice;

 

(3) medication and treatment management;

 

(4) delegation of tasks by registered nurses or licensed health professionals;

 

(5) supervision of registered nurses and licensed health professionals; and

 

(6) supervision of unlicensed personnel performing delegated tasks.

 

Subd. 3.  Infection control program.  The facility shall establish and maintain an infection control program.

 

Subd. 4.  Clinical nurse supervision.  All assisted living facilities must have a clinical nurse supervisor who is a registered nurse licensed in Minnesota.


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Subd. 5.  Resident and family or resident representative councils.  (a) If a resident, family, or designated representative chooses to establish a council, the licensee shall support the council's establishment.  The facility must provide assistance and space for meetings and afford privacy.  Staff or visitors may attend meetings only upon the council's invitation.  A staff person must be designated the responsibility of providing this assistance and responding to written requests that result from council meetings.  Resident council minutes are public data and shall be available to all residents in the facility.  Family or resident representatives may attend resident councils upon invitation by a resident on the council.

 

(b) All assisted living facilities shall engage their residents and families or designated representatives in the operation of their community and document the methods and results of this engagement.

 

Subd. 6.  Resident grievances.  All facilities must post in a conspicuous place information about the facilities' grievance procedure, and the name, telephone number, and e­mail contact information for the individuals who are responsible for handling resident grievances.  The notice must also have the contact information for the state and applicable regional Office of Ombudsman for Long-Term Care.

 

Subd. 7.  Protecting resident rights.  A facility shall ensure that every resident has access to consumer advocacy or legal services by:

 

(1) providing names and contact information, including telephone numbers and e­mail addresses of at least three organizations that provide advocacy or legal services to residents;

 

(2) providing the name and contact information for the Minnesota Office of Ombudsman for Long-Term Care and the Office of the Ombudsman for Mental Health and Developmental Disabilities, including both the state and regional contact information;

 

(3) assisting residents in obtaining information on whether Medicare or medical assistance under chapter 256B will pay for services;

 

(4) making reasonable accommodations for people who have communication disabilities and those who speak a language other than English; and

 

(5) providing all information and notices in plain language and in terms the residents can understand.

 

Subd. 8.  Protection-related rights.  (a) In addition to the rights required in the assisted living bill of rights under section 144J.02, the following rights must be provided to all residents.  The facility must promote and protect these rights for each resident by making residents aware of these rights and ensuring staff are trained to support these rights:

 

(1) the right to furnish and decorate the resident's unit within the terms of the lease;

 

(2) the right to access food at any time;

 

(3) the right to choose visitors and the times of visits;

 

(4) the right to choose a roommate if sharing a unit;

 

(5) the right to personal privacy including the right to have and use a lockable door on the resident's unit.  The facility shall provide the locks on the resident's unit.  Only a staff member with a specific need to enter the unit shall have keys, and advance notice must be given to the resident before entrance, when possible;


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(6) the right to engage in chosen activities;

 

(7) the right to engage in community life;

 

(8) the right to control personal resources; and

 

(9) the right to individual autonomy, initiative, and independence in making life choices including a daily schedule and with whom to interact.

 

(b) The resident's rights in paragraph (a), clauses (2), (3), and (5), may be restricted for an individual resident only if determined necessary for health and safety reasons identified by the facility through an initial assessment or reassessment under section 144I.15, subdivision 9, and documented in the written service plan under section 144I.15, subdivision 10.  Any restrictions of those rights for people served under sections 256B.0915 and 256B.49 must be documented by the case manager in the resident's coordinated service and support plan (CSSP), as defined in sections 256B.0915, subdivision 6, and 256B.49, subdivision 15.

 

Subd. 9.  Payment for services under disability waivers.  For new facilities, home and community-based services under section 256B.49 are not available when the new facility setting is adjoined to, or on the same property as, an institution as defined in Code of Federal Regulations, title 42, section 441.301(c).

 

Subd. 10.  No discrimination based on source of payment.  All facilities must, regardless of the source of payment and for all persons seeking to reside or residing in the facility: 

 

(1) provide equal access to quality care; and

 

(2) establish, maintain, and implement identical policies and practices regarding residency, transfer, and provision and termination of services.

 

EFFECTIVE DATE.  This section is effective August 1, 2021.

 

Sec. 12.  [144I.11] FACILITY RESPONSIBILITIES; HOUSING AND SERVICE-RELATED MATTERS.

 

Subdivision 1.  Responsibility for housing and services.  The facility is directly responsible to the resident for all housing and service-related matters provided, irrespective of a management contract.  Housing and service‑related matters include but are not limited to the handling of complaints, the provision of notices, and the initiation of any adverse action against the resident involving housing or services provided by the facility.

 

Subd. 2.  Uniform checklist disclosure of services.  (a) On and after August 1, 2021, a facility must provide to prospective residents, the prospective resident's designated representative, and any other person or persons the resident chooses:

 

(1) a written checklist listing all services permitted under the facility's license, identifying all services the facility offers to provide under the assisted living facility contract, and identifying all services allowed under the license that the facility does not provide; and

 

(2) an oral explanation of the services offered under the contract.

 

(b) The requirements of paragraph (a) must be completed prior to the execution of the resident contract.

 

(c) The commissioner must, in consultation with all interested stakeholders, design the uniform checklist disclosure form for use as provided under paragraph (a).


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Subd. 3.  Reservation of rights.  Nothing in this chapter:

 

(1) requires a resident to utilize any service provided by or through, or made available in, a facility;

 

(2) prevents a facility from requiring, as a condition of the contract, that the resident pay for a package of services even if the resident does not choose to use all or some of the services in the package.  For residents who are eligible for home and community-based waiver services under sections 256B.0915 and 256B.49, payment for services will follow the policies of those programs;

 

(3) requires a facility to fundamentally alter the nature of the operations of the facility in order to accommodate a resident's request; or

 

(4) affects the duty of a facility to grant a resident's request for reasonable accommodations.

 

Sec. 13.  [144I.12] TRANSFER OF RESIDENTS WITHIN FACILITY.

 

(a) A facility must provide for the safe, orderly, and appropriate transfer of residents within the facility.

 

(b) If an assisted living contract permits resident transfers within the facility, the facility must provide at least 30 days' advance notice of the transfer to the resident and the resident's designated representative.

 

(c) In situations where there is a curtailment, reduction, capital improvement, or change in operations within a facility, the facility must minimize the number of transfers needed to complete the project or change in operations, consider individual resident needs and preferences, and provide reasonable accommodation for individual resident requests regarding the room transfer.  The facility must provide notice to the Office of Ombudsman for Long-Term Care and, when appropriate, the Office of Ombudsman for Mental Health and Developmental Disabilities in advance of any notice to residents, residents' designated representatives, and families when all of the following circumstances apply:

 

(1) the transfers of residents within the facility are being proposed due to curtailment, reduction, capital improvements, or change in operations;

 

(2) the transfers of residents within the facility are not temporary moves to accommodate physical plan upgrades or renovation; and

 

(3) the transfers involve multiple residents being moved simultaneously.

 

EFFECTIVE DATE.  This section is effective August 1, 2021.

 

Sec. 14.  [144I.13] FACILITY RESPONSIBILITIES; BUSINESS OPERATION.

 

Subdivision 1.  Display of license.  The original current license must be displayed at the main entrance of the facility.  The facility must provide a copy of the license to any person who requests it.

 

Subd. 2.  Quality management.  The facility shall engage in quality management appropriate to the size of the facility and relevant to the type of services provided.  The quality management activity means evaluating the quality of care by periodically reviewing resident services, complaints made, and other issues that have occurred and determining whether changes in services, staffing, or other procedures need to be made in order to ensure safe and competent services to residents.  Documentation about quality management activity must be available for two years.  Information about quality management must be available to the commissioner at the time of the survey, investigation, or renewal.


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Subd. 3.  Facility restrictions.  (a) This subdivision does not apply to licensees that are Minnesota counties or other units of government.

 

(b) A facility or staff person cannot accept a power-of-attorney from residents for any purpose, and may not accept appointments as guardians or conservators of residents.

 

(c) A facility cannot serve as a resident's representative.

 

Subd. 4.  Handling resident's finances and property.  (a) A facility may assist residents with household budgeting, including paying bills and purchasing household goods, but may not otherwise manage a resident's property.  A facility must provide a resident with receipts for all transactions and purchases paid with the resident's funds.  When receipts are not available, the transaction or purchase must be documented.  A facility must maintain records of all such transactions.

 

(b) A facility or staff person may not borrow a resident's funds or personal or real property, nor in any way convert a resident's property to the facility's or staff person's possession.

 

(c) Nothing in this section precludes a facility or staff from accepting gifts of minimal value or precludes the acceptance of donations or bequests made to a facility that are exempt from income tax under section 501(c) of the Internal Revenue Code of 1986.

 

Subd. 5.  Reporting maltreatment of vulnerable adults; abuse prevention plan.  (a) All facilities must comply with the requirements for the reporting of maltreatment of vulnerable adults in section 626.557.  Each facility must establish and implement a written procedure to ensure that all cases of suspected maltreatment are reported.

 

(b) Each facility must develop and implement an individual abuse prevention plan for each vulnerable adult.  The plan shall contain an individualized review or assessment of the person's susceptibility to abuse by another individual, including other vulnerable adults; the person's risk of abusing other vulnerable adults; and statements of the specific measures to be taken to minimize the risk of abuse to that person and other vulnerable adults.  For purposes of the abuse prevention plan, abuse includes self-abuse.

 

Subd. 6.  Reporting suspected crime and maltreatment.  (a) A facility shall support protection and safety through access to the state's systems for reporting suspected criminal activity and suspected vulnerable adult maltreatment by:

 

(1) posting the 911 emergency number in common areas and near telephones provided by the assisted living facility;

 

(2) posting information and the reporting number for the common entry point under section 626.557 to report suspected maltreatment of a vulnerable adult; and

 

(3) providing reasonable accommodations with information and notices in plain language.

 

Subd. 7.  Employee records.  (a) The facility must maintain current records of each paid employee, regularly scheduled volunteers providing services, and each individual contractor providing services.  The records must include the following information:

 

(1) evidence of current professional licensure, registration, or certification if licensure, registration, or certification is required by this statute or other rules;


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(2) records of orientation, required annual training and infection control training, and competency evaluations;

 

(3) current job description, including qualifications, responsibilities, and identification of staff persons providing supervision;

 

(4) documentation of annual performance reviews that identify areas of improvement needed and training needs;

 

(5) for individuals providing facility services, verification that required health screenings under section 144I.034, subdivision 7, have taken place and the dates of those screenings; and

 

(6) documentation of the background study as required under section 144.057.

 

(b) Each employee record must be retained for at least three years after a paid employee, volunteer, or contractor ceases to be employed by, provide services at, or be under contract with the facility.  If a facility ceases operation, employee records must be maintained for three years after facility operations cease.

 

Subd. 8.  Compliance officer.  Every assisted living facility shall have a compliance officer who is a licensed assisted living administrator.  An individual licensed as a nursing home administrator, an assisted living administrator, or a health services executive shall automatically meet the qualifications of a compliance officer.

 

Sec. 15.  [144I.14] FACILITY RESPONSIBILITIES; STAFF.

 

Subdivision 1.  Qualifications, training, and competency.  All staff persons providing services must be trained and competent in the provision of services consistent with current practice standards appropriate to the resident's needs and be informed of the assisted living bill of rights under section 144J.02.

 

Subd. 2.  Licensed health professionals and nurses.  (a) Licensed health professionals and nurses providing services as employees of a licensed facility must possess a current Minnesota license or registration to practice.

 

(b) Licensed health professionals and registered nurses must be competent in assessing resident needs, planning appropriate services to meet resident needs, implementing services, and supervising staff if assigned.

 

(c) Nothing in this section limits or expands the rights of nurses or licensed health professionals to provide services within the scope of their licenses or registrations, as provided by law.

 

Subd. 3.  Unlicensed personnel.  (a) Unlicensed personnel providing services must have:

 

(1) successfully completed a training and competency evaluation appropriate to the services provided by the facility and the topics listed in subdivision 6, paragraph (b); or

 

(2) demonstrated competency by satisfactorily completing a written or oral test on the tasks the unlicensed personnel will perform and on the topics listed in subdivision 6, paragraph (b); and successfully demonstrated competency of topics in subdivision 6, paragraph (b), clauses (5), (7), and (8), by a practical skills test.

 

Unlicensed personnel providing basic care services shall not perform delegated nursing or therapy tasks.

 

(b) Unlicensed personnel performing delegated nursing tasks in an assisted living facility must:

 

(1) have successfully completed training and demonstrated competency by successfully completing a written or oral test of the topics in subdivision 6, paragraphs (b) and (c), and a practical skills test on tasks listed in subdivision 6, paragraphs (b), clauses (5) and (7), and (c), clauses (3), (5), (6), and (7), and all the delegated tasks they will perform;


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(2) satisfy the current requirements of Medicare for training or competency of home health aides or nursing assistants, as provided by Code of Federal Regulations, title 42, section 483 or 484.36; or

 

(3) have, before April 19, 1993, completed a training course for nursing assistants that was approved by the commissioner.

 

(c) Unlicensed personnel performing therapy or treatment tasks delegated or assigned by a licensed health professional must meet the requirements for delegated tasks in subdivision 4 and any other training or competency requirements within the licensed health professional's scope of practice relating to delegation or assignment of tasks to unlicensed personnel.

 

Subd. 4.  Delegation of assisted living services.  A registered nurse or licensed health professional may delegate tasks only to staff who are competent and possess the knowledge and skills consistent with the complexity of the tasks and according to the appropriate Minnesota practice act.  The assisted living facility must establish and implement a system to communicate up-to-date information to the registered nurse or licensed health professional regarding the current available staff and their competency so the registered nurse or licensed health professional has sufficient information to determine the appropriateness of delegating tasks to meet individual resident needs and preferences.

 

Subd. 5.  Temporary staff.  When a facility contracts with a temporary staffing agency, those individuals must meet the same requirements required by this section for personnel employed by the facility and shall be treated as if they are staff of the facility.

 

Subd. 6.  Requirements for instructors, training content, and competency evaluations for unlicensed personnel.  (a) Instructors and competency evaluators must meet the following requirements:

 

(1) training and competency evaluations of unlicensed personnel providing basic care services must be conducted by individuals with work experience and training in providing basic care services; and

 

(2) training and competency evaluations of unlicensed personnel providing comprehensive assisted living services must be conducted by a registered nurse, or another instructor may provide training in conjunction with the registered nurse.

 

(b) Training and competency evaluations for all unlicensed personnel must include the following:

 

(1) documentation requirements for all services provided;

 

(2) reports of changes in the resident's condition to the supervisor designated by the facility;

 

(3) basic infection control, including blood-borne pathogens;

 

(4) maintenance of a clean and safe environment;

 

(5) appropriate and safe techniques in personal hygiene and grooming, including:

 

(i) hair care and bathing;

 

(ii) care of teeth, gums, and oral prosthetic devices;

 

(iii) care and use of hearing aids; and


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(iv) dressing and assisting with toileting;

 

(6) training on the prevention of falls;

 

(7) standby assistance techniques and how to perform them;

 

(8) medication, exercise, and treatment reminders;

 

(9) basic nutrition, meal preparation, food safety, and assistance with eating;

 

(10) preparation of modified diets as ordered by a licensed health professional;

 

(11) communication skills that include preserving the dignity of the resident and showing respect for the resident and the resident's preferences, cultural background, and family;

 

(12) awareness of confidentiality and privacy;

 

(13) understanding appropriate boundaries between staff and residents and the resident's family;

 

(14) procedures to use in handling various emergency situations; and

 

(15) awareness of commonly used health technology equipment and assistive devices.

 

(c) In addition to paragraph (b), training and competency evaluation for unlicensed personnel providing comprehensive assisted living services must include:

 

(1) observing, reporting, and documenting resident status;

 

(2) basic knowledge of body functioning and changes in body functioning, injuries, or other observed changes that must be reported to appropriate personnel;

 

(3) reading and recording temperature, pulse, and respirations of the resident;

 

(4) recognizing physical, emotional, cognitive, and developmental needs of the resident;

 

(5) safe transfer techniques and ambulation;

 

(6) range of motioning and positioning; and

 

(7) administering medications or treatments as required.

 

(d) When the registered nurse or licensed health professional delegates tasks, that person must ensure that prior to the delegation the unlicensed personnel is trained in the proper methods to perform the tasks or procedures for each resident and are able to demonstrate the ability to competently follow the procedures and perform the tasks.  If an unlicensed personnel has not regularly performed the delegated assisted living task for a period of 24 consecutive months, the unlicensed personnel must demonstrate competency in the task to the registered nurse or appropriate licensed health professional.  The registered nurse or licensed health professional must document instructions for the delegated tasks in the resident's record.

 

Subd. 7.  Tuberculosis prevention and control.  A facility must establish and maintain a comprehensive tuberculosis infection control program according to the most current tuberculosis infection control guidelines issued by the United States Centers for Disease Control and Prevention (CDC), Division of Tuberculosis Elimination, as


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published in the CDC's Morbidity and Mortality Weekly Report (MMWR).  The program must include a tuberculosis infection control plan that covers all paid and unpaid employees, contractors, students, and volunteers.  The Department of Health shall provide technical assistance regarding implementation of the guidelines.

 

Subd. 8.  Disaster planning and emergency preparedness plan.  (a) Each facility must meet the following requirements:

 

(1) have a written emergency disaster plan that contains a plan for evacuation, addresses elements of sheltering in place, identifies temporary relocation sites, and details staff assignments in the event of a disaster or an emergency;

 

(2) post an emergency disaster plan prominently;

 

(3) provide building emergency exit diagrams to all residents;

 

(4) post emergency exit diagrams on each floor; and

 

(5) have a written policy and procedure regarding missing tenant residents.

 

(b) Each facility must provide emergency and disaster training to all staff during the initial staff orientation and annually thereafter and must make emergency and disaster training annually available to all residents.  Staff who have not received emergency and disaster training are allowed to work only when trained staff are also working on site.

 

(c) Each facility must meet any additional requirements adopted in rule.

 

Sec. 16.  [144I.15] FACILITY RESPONSIBILITIES WITH RESPECT TO RESIDENTS.

 

Subdivision 1.  Assisted living bill of rights; notification to resident.  (a) A facility shall provide the resident and the designated representative a written notice of the rights under section 144J.02 before the initiation of services to that resident.  The facility shall make all reasonable efforts to provide notice of the rights to the resident and the designated representative in a language the resident and designated representative can understand.

 

(b) In addition to the text of the bill of rights in section 144J.02, the notice shall also contain the following statement describing how to file a complaint.

 

"If you want to report suspected maltreatment of a vulnerable adult, you may call the Minnesota Adult Abuse Reporting Center at 1-844-880-1574.  If you have a complaint about the facility or person providing your services, you may contact the Office of Health Facility Complaints, Minnesota Department of Health.  You may also contact the Office of Ombudsman for Long-Term Care or the Office of Ombudsman for Mental Health and Developmental Disabilities."

 

(c) The statement must include the telephone number, website address, e­mail address, mailing address, and street address of the Office of Health Facility Complaints at the Minnesota Department of Health, the Office of Ombudsman for Long-Term Care, and the Office of Ombudsman for Mental Health and Developmental Disabilities.  The statement must include the facility's name, address, e­mail, telephone number, and name or title of the person at the facility to whom problems or complaints may be directed.  It must also include a statement that the facility will not retaliate because of a complaint.

 

(d) A facility must obtain written acknowledgment of the resident's receipt of the bill of rights or shall document why an acknowledgment cannot be obtained.  The acknowledgment may be obtained from the resident and the designated representative.  Acknowledgment of receipt shall be retained in the resident's record.


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Subd. 2.  Notices in plain language; language accommodations.  A facility must provide all notices in plain language that residents can understand and make reasonable accommodations for residents who have communication disabilities and those whose primary language is a language other than English.

 

Subd. 3.  Notice of services for dementia, Alzheimer's disease, or related disorders.  A facility that provides services to residents with dementia shall provide in written or electronic form, to residents and families or other persons who request it, a description of the training program and related training it provides, including the categories of employees trained, the frequency of training, and the basic topics covered.

 

Subd. 4.  Services oversight and information.  A facility shall provide each resident with identifying and contact information about the persons who can assist with health care or supportive services being provided.  A facility shall keep each resident informed of changes in the personnel referenced in this subdivision.

 

Subd. 5.  Notice to residents; change in ownership or management.  A facility must provide prompt written notice to the resident or designated representative of any change of legal name, telephone number, and physical mailing address, which may not be a public or private post office box, of:

 

(1) the licensee of the facility;

 

(2) the manager of the facility, if applicable; and

 

(3) the agent authorized to accept legal process on behalf of the facility.

 

Subd. 6.  Acceptance of residents.  A facility may not accept a person as a resident unless the facility has staff, sufficient in qualifications, competency, and numbers, to adequately provide the services agreed to in the service plan and that are within the facility's scope of practice.

 

Subd. 7.  Referrals.  If a facility reasonably believes that a resident is in need of another medical or health service, including a licensed health professional, or social service provider, the facility shall:

 

(1) determine the resident's preferences with respect to obtaining the service; and

 

(2) inform the resident of the resources available, if known, to assist the resident in obtaining services.

 

Subd. 8.  Initiation of services.  When a facility initiates services and the individualized assessment required in subdivision 9 has not been completed, the facility must complete a temporary plan and agreement with the resident for services.

 

Subd. 9.  Initial assessments and monitoring.  (a) An assisted living facility shall conduct a nursing assessment by a registered nurse of the physical and cognitive needs of the prospective resident and propose a temporary service plan prior to the date on which a prospective resident executes a contract with a facility or the date on which a prospective resident moves in, whichever is earlier.  If necessitated by either the geographic distance between the prospective resident and the facility, or urgent or unexpected circumstances, the assessment may be conducted using telecommunication methods based on practice standards that meet the resident's needs and reflect person-centered planning and care delivery.  The nursing assessment must be completed within five days of the start of services.

 

(b) Resident reassessment and monitoring must be conducted no more than 14 days after initiation of services.  Ongoing resident reassessment and monitoring must be conducted as needed based on changes in the needs of the resident and cannot exceed 90 days from the last date of the assessment. 

 

(c) Residents who are not receiving any services shall not be required to undergo an initial nursing assessment.


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(d) A facility must inform the prospective resident of the availability of and contact information for long-term care consultation services under section 256B.0911, prior to the date on which a prospective resident executes a contract with a facility or the date on which a prospective resident moves in, whichever is earlier.

 

Subd. 10.  Service plan, implementation, and revisions to service plan.  (a) No later than 14 days after the date that services are first provided, a facility shall finalize a current written service plan.

 

(b) The service plan and any revisions must include a signature or other authentication by the facility and by the resident or the designated representative documenting agreement on the services to be provided.  The service plan must be revised, if needed, based on resident reassessment under subdivision 9.  The facility must provide information to the resident about changes to the facility's fee for services and how to contact the Office of Ombudsman for Long-Term Care.

 

(c) The facility must implement and provide all services required by the current service plan.

 

(d) The service plan and the revised service plan must be entered into the resident's record, including notice of a change in a resident's fees when applicable.

 

(e) Staff providing services must be informed of the current written service plan.

 

(f) The service plan must include:

 

(1) a description of the services to be provided, the fees for services, and the frequency of each service, according to the resident's current assessment and resident preferences;

 

(2) the identification of staff or categories of staff who will provide the services;

 

(3) the schedule and methods of monitoring assessments of the resident;

 

(4) the schedule and methods of monitoring staff providing services; and

 

(5) a contingency plan that includes:

 

(i) the action to be taken by the facility and by the resident and the designated representative if the scheduled service cannot be provided;

 

(ii) information and a method for a resident and the designated representative to contact the facility;

 

(iii) the names and contact information of persons the resident wishes to have notified in an emergency or if there is a significant adverse change in the resident's condition, including identification of and information as to who has authority to sign for the resident in an emergency; and

 

(iv) the circumstances in which emergency medical services are not to be summoned consistent with chapters 145B and 145C, and declarations made by the resident under those chapters.

 

Subd. 11.  Use of restraints.  Residents of assisted living facilities must be free from any physical or chemical restraints.  Restraints are only permissible if determined necessary for health and safety reasons identified by the facility through an initial assessment or reassessment, under subdivision 9, and documented in the written service plan under subdivision 10.


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Subd. 12.  Request for discontinuation of life-sustaining treatment.  (a) If a resident, family member, or other caregiver of the resident requests that an employee or other agent of the facility discontinue a life-sustaining treatment, the employee or agent receiving the request:

 

(1) shall take no action to discontinue the treatment; and

 

(2) shall promptly inform the supervisor or other agent of the facility of the resident's request.

 

(b) Upon being informed of a request for discontinuance of treatment, the facility shall promptly:

 

(1) inform the resident that the request will be made known to the physician or advanced practice registered nurse who ordered the resident's treatment;

 

(2) inform the physician or advanced practice registered nurse of the resident's request; and

 

(3) work with the resident and the resident's physician or advanced practice registered nurse to comply with chapter 145C.

 

(c) This section does not require the facility to discontinue treatment, except as may be required by law or court order.

 

(d) This section does not diminish the rights of residents to control their treatments, refuse services, or terminate their relationships with the facility.

 

(e) This section shall be construed in a manner consistent with chapter 145B or 145C, whichever applies, and declarations made by residents under those chapters.

 

Subd. 13.  Medical cannabis.  Facilities may exercise the authority and are subject to the protections in section 152.34.

 

Subd. 14.  Landlord and tenant.  Facilities are subject to and must comply with chapter 504B.

 

Sec. 17.  [144I.16] PROVISION OF SERVICES.

 

Subdivision 1.  Availability of contact person to staff.  (a) Assisted living facilities and assisted living facilities that provide dementia care must have a registered nurse available for consultation to staff performing delegated nursing tasks and must have an appropriate licensed health professional available if performing other delegated services such as therapies.

 

(b) The appropriate contact person must be readily available either in person, by telephone, or by other means to the staff at times when the staff is providing services.

 

Subd. 2.  Supervision of staff; basic care services.  (a) Staff who perform basic care services must be supervised periodically where the services are being provided to verify that the work is being performed competently and to identify problems and solutions to address issues relating to the staff's ability to provide the services.  The supervision of the unlicensed personnel must be done by staff of the facility having the authority, skills, and ability to provide the supervision of unlicensed personnel and who can implement changes as needed, and train staff.

 

(b) Supervision includes direct observation of unlicensed personnel while the unlicensed personnel are providing the services and may also include indirect methods of gaining input such as gathering feedback from the resident.  Supervisory review of staff must be provided at a frequency based on the staff person's competency and performance.


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Subd. 3.  Supervision of staff providing delegated nursing or therapy tasks.  (a) Staff who perform delegated nursing or therapy tasks must be supervised by an appropriate licensed health professional or a registered nurse per the assisted living facility's policy where the services are being provided to verify that the work is being performed competently and to identify problems and solutions related to the staff person's ability to perform the tasks.  Supervision of staff performing medication or treatment administration shall be provided by a registered nurse or appropriate licensed health professional and must include observation of the staff administering the medication or treatment and the interaction with the resident.

 

(b) The direct supervision of staff performing delegated tasks must be provided within 30 days after the date on which the individual begins working for the facility and first performs the delegated tasks for residents and thereafter as needed based on performance.  This requirement also applies to staff who have not performed delegated tasks for one year or longer.

 

Subd. 4.  Documentation.  A facility must retain documentation of supervision activities in the personnel records.

 

Sec. 18.  [144I.17] MEDICATION MANAGEMENT.

 

Subdivision 1.  Medication management services.  (a) This section applies only to assisted living facilities that provide medication management services. 

 

(b) An assisted living facility that provides medication management services must develop, implement, and maintain current written medication management policies and procedures.  The policies and procedures must be developed under the supervision and direction of a registered nurse, licensed health professional, or pharmacist consistent with current practice standards and guidelines.

 

(c) The written policies and procedures must address requesting and receiving prescriptions for medications; preparing and giving medications; verifying that prescription drugs are administered as prescribed; documenting medication management activities; controlling and storing medications; monitoring and evaluating medication use; resolving medication errors; communicating with the prescriber, pharmacist, and resident and designated representative, if any; disposing of unused medications; and educating residents and designated representatives about medications.  When controlled substances are being managed, the policies and procedures must also identify how the provider will ensure security and accountability for the overall management, control, and disposition of those substances in compliance with state and federal regulations and with subdivision 23.

 

Subd. 2.  Provision of medication management services.  (a) For each resident who requests medication management services, the assisted living facility shall, prior to providing medication management services, have a registered nurse, licensed health professional, or authorized prescriber under section 151.37 conduct an assessment to determine what medication management services will be provided and how the services will be provided.  This assessment must be conducted face-to-face with the resident.  The assessment must include an identification and review of all medications the resident is known to be taking.  The review and identification must include indications for medications, side effects, contraindications, allergic or adverse reactions, and actions to address these issues.

 

(b) The assessment must identify interventions needed in management of medications to prevent diversion of medication by the resident or others who may have access to the medications and provide instructions to the resident and designated representative on interventions to manage the resident's medications and prevent diversion of medications.  For purposes of this section, "diversion of medication" means misuse, theft, or illegal or improper disposition of medications.


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Subd. 3.  Individualized medication monitoring and reassessment.  The assisted living facility must monitor and reassess the resident's medication management services as needed under subdivision 2 when the resident presents with symptoms or other issues that may be medication-related and, at a minimum, annually.

 

Subd. 4.  Resident refusal.  The assisted living facility must document in the resident's record any refusal for an assessment for medication management by the resident.  The assisted living facility must discuss with the resident the possible consequences of the resident's refusal and document the discussion in the resident's record.

 

Subd. 5.  Individualized medication management plan.  (a) For each resident receiving medication management services, the assisted living facility must prepare and include in the service plan a written statement of the medication management services that will be provided to the resident.  The assisted living facility must develop and maintain a current individualized medication management record for each resident based on the resident's assessment that must contain the following:

 

(1) a statement describing the medication management services that will be provided;

 

(2) a description of storage of medications based on the resident's needs and preferences, risk of diversion, and consistent with the manufacturer's directions;

 

(3) documentation of specific resident instructions relating to the administration of medications;

 

(4) identification of persons responsible for monitoring medication supplies and ensuring that medication refills are ordered on a timely basis;

 

(5) identification of medication management tasks that may be delegated to unlicensed personnel;

 

(6) procedures for staff notifying a registered nurse or appropriate licensed health professional when a problem arises with medication management services; and

 

(7) any resident-specific requirements relating to documenting medication administration, verifications that all medications are administered as prescribed, and monitoring of medication use to prevent possible complications or adverse reactions.

 

(b) The medication management record must be current and updated when there are any changes.

 

(c) Medication reconciliation must be completed when a licensed nurse, licensed health professional, or authorized prescriber is providing medication management.

 

Subd. 6.  Administration of medication.  Medications may be administered by a nurse, physician, or other licensed health practitioner authorized to administer medications or by unlicensed personnel who have been delegated medication administration tasks by a registered nurse.

 

Subd. 7.  Delegation of medication administration.  When administration of medications is delegated to unlicensed personnel, the assisted living facility must ensure that the registered nurse has:

 

(1) instructed the unlicensed personnel in the proper methods to administer the medications, and the unlicensed personnel has demonstrated the ability to competently follow the procedures;

 

(2) specified, in writing, specific instructions for each resident and documented those instructions in the resident's records; and

 

(3) communicated with the unlicensed personnel about the individual needs of the resident.


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Subd. 8.  Documentation of administration of medications.  Each medication administered by the assisted living facility staff must be documented in the resident's record.  The documentation must include the signature and title of the person who administered the medication.  The documentation must include the medication name, dosage, date and time administered, and method and route of administration.  The staff must document the reason why medication administration was not completed as prescribed and document any follow-up procedures that were provided to meet the resident's needs when medication was not administered as prescribed and in compliance with the resident's medication management plan.

 

Subd. 9.  Documentation of medication setup.  Documentation of dates of medication setup, name of medication, quantity of dose, times to be administered, route of administration, and name of person completing medication setup must be done at the time of setup.

 

Subd. 10.  Medication management for residents who will be away from home.  (a) An assisted living facility that is providing medication management services to the resident must develop and implement policies and procedures for giving accurate and current medications to residents for planned or unplanned times away from home according to the resident's individualized medication management plan.  The policies and procedures must state that:

 

(1) for planned time away, the medications must be obtained from the pharmacy or set up by the licensed nurse according to appropriate state and federal laws and nursing standards of practice;

 

(2) for unplanned time away, when the pharmacy is not able to provide the medications, a licensed nurse or unlicensed personnel shall give the resident and designated representative medications in amounts and dosages needed for the length of the anticipated absence, not to exceed seven calendar days;

 

(3) the resident or designated representative must be provided written information on medications, including any special instructions for administering or handling the medications, including controlled substances;

 

(4) the medications must be placed in a medication container or containers appropriate to the provider's medication system and must be labeled with the resident's name and the dates and times that the medications are scheduled; and

 

(5) the resident and designated representative must be provided in writing the facility's name and information on how to contact the facility.

 

(b) For unplanned time away when the licensed nurse is not available, the registered nurse may delegate this task to unlicensed personnel if:

 

(1) the registered nurse has trained the unlicensed staff and determined the unlicensed staff is competent to follow the procedures for giving medications to residents; and

 

(2) the registered nurse has developed written procedures for the unlicensed personnel, including any special instructions or procedures regarding controlled substances that are prescribed for the resident.  The procedures must address:

 

(i) the type of container or containers to be used for the medications appropriate to the provider's medication system;

 

(ii) how the container or containers must be labeled;

 

(iii) written information about the medications to be given to the resident or designated representative;


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(iv) how the unlicensed staff must document in the resident's record that medications have been given to the resident and the designated representative, including documenting the date the medications were given to the resident or the designated representative and who received the medications, the person who gave the medications to the resident, the number of medications that were given to the resident, and other required information;

 

(v) how the registered nurse shall be notified that medications have been given to the resident or designated representative and whether the registered nurse needs to be contacted before the medications are given to the resident or the designated representative;

 

(vi) a review by the registered nurse of the completion of this task to verify that this task was completed accurately by the unlicensed personnel; and

 

(vii) how the unlicensed personnel must document in the resident's record any unused medications that are returned to the facility, including the name of each medication and the doses of each returned medication.

 

Subd. 11.  Prescribed and nonprescribed medication.  The assisted living facility must determine whether the facility shall require a prescription for all medications the provider manages.  The assisted living facility must inform the resident or the designated representative whether the facility requires a prescription for all over‑the‑counter and dietary supplements before the facility agrees to manage those medications.

 

Subd. 12.  Medications; over-the-counter drugs; dietary supplements not prescribed.  An assisted living facility providing medication management services for over-the-counter drugs or dietary supplements must retain those items in the original labeled container with directions for use prior to setting up for immediate or later administration.  The facility must verify that the medications are up to date and stored as appropriate.

 

Subd. 13.  Prescriptions.  There must be a current written or electronically recorded prescription as defined in section 151.01, subdivision 16a, for all prescribed medications that the assisted living facility is managing for the resident.

 

Subd. 14.  Renewal of prescriptions.  Prescriptions must be renewed at least every 12 months or more frequently as indicated by the assessment in subdivision 2.  Prescriptions for controlled substances must comply with chapter 152.

 

Subd. 15.  Verbal prescription orders.  Verbal prescription orders from an authorized prescriber must be received by a nurse or pharmacist.  The order must be handled according to Minnesota Rules, part 6800.6200.

 

Subd. 16.  Written or electronic prescription.  When a written or electronic prescription is received, it must be communicated to the registered nurse in charge and recorded or placed in the resident's record.

 

Subd. 17.  Records confidential.  A prescription or order received verbally, in writing, or electronically must be kept confidential according to sections 144.291 to 144.298 and 144A.44.

 

Subd. 18.  Medications provided by resident or family members.  When the assisted living facility is aware of any medications or dietary supplements that are being used by the resident and are not included in the assessment for medication management services, the staff must advise the registered nurse and document that in the resident's record.

 

Subd. 19.  Storage of medications.  An assisted living facility must store all prescription medications in securely locked and substantially constructed compartments according to the manufacturer's directions and permit only authorized personnel to have access.


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Subd. 20.  Prescription drugs.  A prescription drug, prior to being set up for immediate or later administration, must be kept in the original container in which it was dispensed by the pharmacy bearing the original prescription label with legible information including the expiration or beyond-use date of a time-dated drug.

 

Subd. 21.  Prohibitions.  No prescription drug supply for one resident may be used or saved for use by anyone other than the resident.

 

Subd. 22.  Disposition of medications.  (a) Any current medications being managed by the assisted living facility must be given to the resident or the designated representative when the resident's service plan ends or medication management services are no longer part of the service plan.  Medications for a resident who is deceased or that have been discontinued or have expired may be given to the resident or the designated representative for disposal.

 

(b) The assisted living facility shall dispose of any medications remaining with the facility that are discontinued or expired or upon the termination of the service contract or the resident's death according to state and federal regulations for disposition of medications and controlled substances.

 

(c) Upon disposition, the facility must document in the resident's record the disposition of the medication including the medication's name, strength, prescription number as applicable, quantity, to whom the medications were given, date of disposition, and names of staff and other individuals involved in the disposition.

 

Subd. 23.  Loss or spillage.  (a) Assisted living facilities providing medication management must develop and implement procedures for loss or spillage of all controlled substances defined in Minnesota Rules, part 6800.4220.  These procedures must require that when a spillage of a controlled substance occurs, a notation must be made in the resident's record explaining the spillage and the actions taken.  The notation must be signed by the person responsible for the spillage and include verification that any contaminated substance was disposed of according to state or federal regulations.

 

(b) The procedures must require that the facility providing medication management investigate any known loss or unaccounted for prescription drugs and take appropriate action required under state or federal regulations and document the investigation in required records.

 

Sec. 19.  [144I.18] TREATMENT AND THERAPY MANAGEMENT SERVICES.

 

Subdivision 1.  Treatment and therapy management services.  This section applies only to assisted living facilities that provide comprehensive assisted living services. 

 

Subd. 2.  Policies and procedures.  (a) An assisted living facility that provides treatment and therapy management services must develop, implement, and maintain up-to-date written treatment or therapy management policies and procedures.  The policies and procedures must be developed under the supervision and direction of a registered nurse or appropriate licensed health professional consistent with current practice standards and guidelines.

 

(b) The written policies and procedures must address requesting and receiving orders or prescriptions for treatments or therapies, providing the treatment or therapy, documenting treatment or therapy activities, educating and communicating with residents about treatments or therapies they are receiving, monitoring and evaluating the treatment or therapy, and communicating with the prescriber.

 

Subd. 3.  Individualized treatment or therapy management plan.  For each resident receiving management of ordered or prescribed treatments or therapy services, the assisted living facility must prepare and include in the service plan a written statement of the treatment or therapy services that will be provided to the resident.  The facility must also develop and maintain a current individualized treatment and therapy management record for each resident which must contain at least the following:


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(1) a statement of the type of services that will be provided;

 

(2) documentation of specific resident instructions relating to the treatments or therapy administration;

 

(3) identification of treatment or therapy tasks that will be delegated to unlicensed personnel;

 

(4) procedures for notifying a registered nurse or appropriate licensed health professional when a problem arises with treatments or therapy services; and

 

(5) any resident-specific requirements relating to documentation of treatment and therapy received, verification that all treatment and therapy was administered as prescribed, and monitoring of treatment or therapy to prevent possible complications or adverse reactions.  The treatment or therapy management record must be current and updated when there are any changes.

 

Subd. 4.  Administration of treatments and therapy.  Ordered or prescribed treatments or therapies must be administered by a nurse, physician, or other licensed health professional authorized to perform the treatment or therapy, or may be delegated or assigned to unlicensed personnel by the licensed health professional according to the appropriate practice standards for delegation or assignment.  When administration of a treatment or therapy is delegated or assigned to unlicensed personnel, the facility must ensure that the registered nurse or authorized licensed health professional has:

 

(1) instructed the unlicensed personnel in the proper methods with respect to each resident and the unlicensed personnel has demonstrated the ability to competently follow the procedures;

 

(2) specified, in writing, specific instructions for each resident and documented those instructions in the resident's record; and

 

(3) communicated with the unlicensed personnel about the individual needs of the resident.

 

Subd. 5.  Documentation of administration of treatments and therapies.  Each treatment or therapy administered by an assisted living facility must be in the resident's record.  The documentation must include the signature and title of the person who administered the treatment or therapy and must include the date and time of administration.  When treatment or therapies are not administered as ordered or prescribed, the provider must document the reason why it was not administered and any follow-up procedures that were provided to meet the resident's needs.

 

Subd. 6.  Treatment and therapy orders.  There must be an up-to-date written or electronically recorded order from an authorized prescriber for all treatments and therapies.  The order must contain the name of the resident, a description of the treatment or therapy to be provided, and the frequency, duration, and other information needed to administer the treatment or therapy.  Treatment and therapy orders must be renewed at least every 12 months.

 

Subd. 7.  Right to outside service provider; other payors.  Under section 144J.02, a resident is free to retain therapy and treatment services from an off-site service provider.  Assisted living facilities must make every effort to assist residents in obtaining information regarding whether the Medicare program, the medical assistance program under chapter 256B, or another public program will pay for any or all of the services.

 

Sec. 20.  [144I.19] RESIDENT RECORD REQUIREMENTS.

 

Subdivision 1.  Resident record.  (a) The facility must maintain records for each resident for whom it is providing services.  Entries in the resident records must be current, legible, permanently recorded, dated, and authenticated with the name and title of the person making the entry.


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(b) Resident records, whether written or electronic, must be protected against loss, tampering, or unauthorized disclosure in compliance with chapter 13 and other applicable relevant federal and state laws.  The facility shall establish and implement written procedures to control use, storage, and security of resident's records and establish criteria for release of resident information.

 

(c) The facility may not disclose to any other person any personal, financial, or medical information about the resident, except:

 

(1) as may be required by law;

 

(2) to employees or contractors of the facility, another facility, other health care practitioner or provider, or inpatient facility needing information in order to provide services to the resident, but only the information that is necessary for the provision of services;

 

(3) to persons authorized in writing by the resident or the resident's representative to receive the information, including third-party payers; and

 

(4) to representatives of the commissioner authorized to survey or investigate facilities under this chapter or federal laws.

 

Subd. 2.  Access to records.  The facility must ensure that the appropriate records are readily available to employees and contractors authorized to access the records.  Resident records must be maintained in a manner that allows for timely access, printing, or transmission of the records.  The records must be made readily available to the commissioner upon request.

 

Subd. 3.  Contents of resident record.  Contents of a resident record include the following for each resident:

 

(1) identifying information, including the resident's name, date of birth, address, and telephone number;

 

(2) the name, address, and telephone number of an emergency contact, family members, designated representative, if any, or others as identified;

 

(3) names, addresses, and telephone numbers of the resident's health and medical service providers, if known;

 

(4) health information, including medical history, allergies, and when the provider is managing medications, treatments or therapies that require documentation, and other relevant health records;

 

(5) the resident's advance directives, if any;

 

(6) copies of any health care directives, guardianships, powers of attorney, or conservatorships;

 

(7) the facility's current and previous assessments and service plans;

 

(8) all records of communications pertinent to the resident's services;

 

(9) documentation of significant changes in the resident's status and actions taken in response to the needs of the resident, including reporting to the appropriate supervisor or health care professional;

 

(10) documentation of incidents involving the resident and actions taken in response to the needs of the resident, including reporting to the appropriate supervisor or health care professional;


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(11) documentation that services have been provided as identified in the service plan;

 

(12) documentation that the resident has received and reviewed the assisted living bill of rights;

 

(13) documentation of complaints received and any resolution;

 

(14) a discharge summary, including service termination notice and related documentation, when applicable; and

 

(15) other documentation required under this chapter and relevant to the resident's services or status.

 

Subd. 4.  Transfer of resident records.  If a resident transfers to another facility or another health care practitioner or provider, or is admitted to an inpatient facility, the facility, upon request of the resident or the resident's representative, shall take steps to ensure a coordinated transfer including sending a copy or summary of the resident's record to the new facility or the resident, as appropriate.

 

Subd. 5.  Record retention.  Following the resident's discharge or termination of services, a facility must retain a resident's record for at least five years or as otherwise required by state or federal regulations.  Arrangements must be made for secure storage and retrieval of resident records if the facility ceases to operate.

 

Sec. 21.  [144I.20] ORIENTATION AND ANNUAL TRAINING REQUIREMENTS.

 

Subdivision 1.  Orientation of staff and supervisors.  All staff providing and supervising direct services must complete an orientation to facility licensing requirements and regulations before providing services to residents.  The orientation may be incorporated into the training required under subdivision 6.  The orientation need only be completed once for each staff person and is not transferable to another facility.

 

Subd. 2.  Content.  (a) The orientation must contain the following topics:

 

(1) an overview of this chapter;

 

(2) an introduction and review of the facility's policies and procedures related to the provision of assisted living services by the individual staff person;

 

(3) handling of emergencies and use of emergency services;

 

(4) compliance with and reporting of the maltreatment of vulnerable adults under section 626.557, including information on the Minnesota Adult Abuse Reporting Center;

 

(5) assisted living bill of rights under section 144J.02;

 

(6) protection-related rights under section 144I.10, subdivision 8, and staff responsibilities related to ensuring the exercise and protection of those rights;

 

(7) the principles of person-centered service planning and delivery and how they apply to direct support services provided by the staff person;

 

(8) handling of residents' complaints, reporting of complaints, and where to report complaints, including information on the Office of Health Facility Complaints;


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(9) consumer advocacy services of the Office of Ombudsman for Long-Term Care, Office of Ombudsman for Mental Health and Developmental Disabilities, Managed Care Ombudsman at the Department of Human Services, county-managed care advocates, or other relevant advocacy services; and

 

(10) a review of the types of assisted living services the employee will be providing and the facility's category of licensure.

 

(b) In addition to the topics in paragraph (a), orientation may also contain training on providing services to residents with hearing loss.  Any training on hearing loss provided under this subdivision must be high quality and research based, may include online training, and must include training on one or more of the following topics:

 

(1) an explanation of age-related hearing loss and how it manifests itself, its prevalence, and the challenges it poses to communication;

 

(2) health impacts related to untreated age-related hearing loss, such as increased incidence of dementia, falls, hospitalizations, isolation, and depression; or

 

(3) information about strategies and technology that may enhance communication and involvement, including communication strategies, assistive listening devices, hearing aids, visual and tactile alerting devices, communication access in real time, and closed captions.

 

Subd. 3.  Verification and documentation of orientation.  Each facility shall retain evidence in the employee record of each staff person having completed the orientation required by this section.

 

Subd. 4.  Orientation to resident.  Staff providing services must be oriented specifically to each individual resident and the services to be provided.  This orientation may be provided in person, orally, in writing, or electronically.

 

Subd. 5.  Training required relating to dementia.  All direct care staff and supervisors providing direct services must receive training that includes a current explanation of Alzheimer's disease and related disorders, effective approaches to use to problem solve when working with a resident's challenging behaviors, and how to communicate with residents who have dementia or related memory disorders.

 

Subd. 6.  Required annual training.  (a) All staff that perform direct services must complete at least eight hours of annual training for each 12 months of employment.  The training may be obtained from the facility or another source and must include topics relevant to the provision of assisted living services.  The annual training must include:

 

(1) training on reporting of maltreatment of vulnerable adults under section 626.557;

 

(2) review of the assisted living bill of rights in section 144J.02;

 

(3) review of infection control techniques used in the home and implementation of infection control standards including a review of hand washing techniques; the need for and use of protective gloves, gowns, and masks; appropriate disposal of contaminated materials and equipment, such as dressings, needles, syringes, and razor blades; disinfecting reusable equipment; disinfecting environmental surfaces; and reporting communicable diseases;

 

(4) effective approaches to use to problem solve when working with a resident's challenging behaviors, and how to communicate with residents who have Alzheimer's disease or related disorders;


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(5) review of the facility's policies and procedures relating to the provision of assisted living services and how to implement those policies and procedures;

 

(6) review of protection-related rights as stated in section 144I.10, subdivision 8, and staff responsibilities related to ensuring the exercise and protection of those rights; and

 

(7) the principles of person-centered service planning and delivery and how they apply to direct support services provided by the staff person.

 

(b) In addition to the topics in paragraph (a), annual training may also contain training on providing services to residents with hearing loss.  Any training on hearing loss provided under this subdivision must be high quality and research based, may include online training, and must include training on one or more of the following topics:

 

(1) an explanation of age-related hearing loss and how it manifests itself, its prevalence, and challenges it poses to communication;

 

(2) the health impacts related to untreated age-related hearing loss, such as increased incidence of dementia, falls, hospitalizations, isolation, and depression; or

 

(3) information about strategies and technology that may enhance communication and involvement, including communication strategies, assistive listening devices, hearing aids, visual and tactile alerting devices, communication access in real time, and closed captions.

 

Subd. 7.  Documentation.  A facility must retain documentation in the employee records of staff who have satisfied the orientation and training requirements of this section.

 

Subd. 8.  Implementation.  A facility must implement all orientation and training topics covered in this section.

 

Sec. 22.  [144I.21] TRAINING IN DEMENTIA CARE REQUIRED.

 

(a) Assisted living facilities and assisted living facilities with dementia care must meet the following training requirements:

 

(1) supervisors of direct-care staff must have at least eight hours of initial training on topics specified under paragraph (b) within 120 working hours of the employment start date, and must have at least two hours of training on topics related to dementia care for each 12 months of employment thereafter;

 

(2) direct-care employees must have completed at least eight hours of initial training on topics specified under paragraph (b) within 160 working hours of the employment start date.  Until this initial training is complete, an employee must not provide direct care unless there is another employee on site who has completed the initial eight hours of training on topics related to dementia care and who can act as a resource and assist if issues arise.  A trainer of the requirements under paragraph (b) or a supervisor meeting the requirements in clause (1) must be available for consultation with the new employee until the training requirement is complete.  Direct-care employees must have at least two hours of training on topics related to dementia for each 12 months of employment thereafter;

 

(3) staff who do not provide direct care, including maintenance, housekeeping, and food service staff, must have at least four hours of initial training on topics specified under paragraph (b) within 160 working hours of the employment start date, and must have at least two hours of training on topics related to dementia care for each 12 months of employment thereafter; and


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(4) new employees may satisfy the initial training requirements by producing written proof of previously completed required training within the past 18 months.

 

(b) Areas of required training include:

 

(1) an explanation of Alzheimer's disease and related disorders;

 

(2) assistance with activities of daily living;

 

(3) problem solving with challenging behaviors; and

 

(4) communication skills.

 

(c) The facility shall provide to consumers in written or electronic form a description of the training program, the categories of employees trained, the frequency of training, and the basic topics covered.

 

Sec. 23.  [144I.22] CONTROLLING INDIVIDUAL RESTRICTIONS.

 

Subdivision 1.  Restrictions.  The controlling individual of a facility may not include any person who was a controlling individual of any other nursing home, assisted living facility, or assisted living facility with dementia care during any period of time in the previous two-year period:

 

(1) during which time of control the nursing home, assisted living facility, or assisted living facility with dementia care incurred the following number of uncorrected or repeated violations:

 

(i) two or more uncorrected violations or one or more repeated violations that created an imminent risk to direct resident care or safety; or

 

(ii) four or more uncorrected violations or two or more repeated violations of any nature, including Level 2, Level 3, and Level 4 violations as defined in section 144I.31; or

 

(2) who, during that period, was convicted of a felony or gross misdemeanor that relates to the operation of the nursing home, assisted living facility, or assisted living facility with dementia care, or directly affects resident safety or care.

 

Subd. 2.  Exception.  Subdivision 1 does not apply to any controlling individual of the facility who had no legal authority to affect or change decisions related to the operation of the nursing home, assisted living facility, or assisted living facility with dementia care that incurred the uncorrected violations.

 

Subd. 3.  Stay of adverse action required by controlling individual restrictions.  (a) In lieu of revoking, suspending, or refusing to renew the license of a facility where a controlling individual was disqualified by subdivision 1, clause (1), the commissioner may issue an order staying the revocation, suspension, or nonrenewal of the facility's license.  The order may but need not be contingent upon the facility's compliance with restrictions and conditions imposed on the license to ensure the proper operation of the facility and to protect the health, safety, comfort, treatment, and well-being of the residents in the facility.  The decision to issue an order for a stay must be made within 90 days of the commissioner's determination that a controlling individual of the facility is disqualified by subdivision 1, clause (1), from operating a facility.

 

(b) In determining whether to issue a stay and to impose conditions and restrictions, the commissioner must consider the following factors:


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(1) the ability of the controlling individual to operate other facilities in accordance with the licensure rules and laws;

 

(2) the conditions in the nursing home, assisted living facility, or assisted living facility with dementia care that received the number and type of uncorrected or repeated violations described in subdivision 1, clause (1); and

 

(3) the conditions and compliance history of each of the nursing homes, assisted living facilities, and assisted living facilities with dementia care owned or operated by the controlling individuals.

 

(c) The commissioner's decision to exercise the authority under this subdivision in lieu of revoking, suspending, or refusing to renew the license of the facility is not subject to administrative or judicial review.

 

(d) The order for the stay of revocation, suspension, or nonrenewal of the facility license must include any conditions and restrictions on the license that the commissioner deems necessary based on the factors listed in paragraph (b).

 

(e) Prior to issuing an order for stay of revocation, suspension, or nonrenewal, the commissioner shall inform the controlling individual in writing of any conditions and restrictions that will be imposed.  The controlling individual shall, within ten working days, notify the commissioner in writing of a decision to accept or reject the conditions and restrictions.  If the facility rejects any of the conditions and restrictions, the commissioner must either modify the conditions and restrictions or take action to suspend, revoke, or not renew the facility's license.

 

(f) Upon issuance of the order for a stay of revocation, suspension, or nonrenewal, the controlling individual shall be responsible for compliance with the conditions and restrictions.  Any time after the conditions and restrictions have been in place for 180 days, the controlling individual may petition the commissioner for removal or modification of the conditions and restrictions.  The commissioner must respond to the petition within 30 days of receipt of the written petition.  If the commissioner denies the petition, the controlling individual may request a hearing under the provisions of chapter 14.  Any hearing shall be limited to a determination of whether the conditions and restrictions shall be modified or removed.  At the hearing, the controlling individual bears the burden of proof.

 

(g) The failure of the controlling individual to comply with the conditions and restrictions contained in the order for stay shall result in the immediate removal of the stay and the commissioner shall take action to suspend, revoke, or not renew the license.

 

(h) The conditions and restrictions are effective for two years after the date they are imposed.

 

(i) Nothing in this subdivision shall be construed to limit in any way the commissioner's ability to impose other sanctions against a facility licensee under the standards in state or federal law whether or not a stay of revocation, suspension, or nonrenewal is issued.

 

Sec. 24.  [144I.23] MANAGEMENT AGREEMENTS; GENERAL REQUIREMENTS.

 

Subdivision 1.  Notification.  (a) If the proposed or current licensee uses a manager, the licensee must have a written management agreement that is consistent with this chapter.

 

(b) The proposed or current licensee must notify the commissioner of its use of a manager upon:

 

(1) initial application for a license;

 

(2) retention of a manager following initial application;


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(3) change of managers; and

 

(4) modification of an existing management agreement.

 

(c) The proposed or current licensee must provide to the commissioner a written management agreement, including an organizational chart showing the relationship between the proposed or current licensee, management company, and all related organizations.

 

(d) The written management agreement must be submitted:

 

(1) 60 days before:

 

(i) the initial licensure date;

 

(ii) the proposed change of ownership date; or

 

(iii) the effective date of the management agreement; or

 

(2) 30 days before the effective date of any amendment to an existing management agreement.

 

(e) The proposed licensee or the current licensee must notify the residents and their representatives 60 days before entering into a new management agreement.

 

(f) A proposed licensee must submit a management agreement.

 

Subd. 2.  Management agreement; licensee.  (a) The licensee is legally responsible for:

 

(1) the daily operations and provisions of services in the facility;

 

(2) ensuring the facility is operated in a manner consistent with all applicable laws and rules;

 

(3) ensuring the manager acts in conformance with the management agreement; and

 

(4) ensuring the manager does not present as, or give the appearance that the manager is the licensee.

 

(b) The licensee must not give the manager responsibilities that are so extensive that the licensee is relieved of daily responsibility for the daily operations and provision of services in the assisted living facility.  If the licensee does so, the commissioner must determine that a change of ownership has occurred.

 

(c) The licensee and manager must act in accordance with the terms of the management agreement.  If the commissioner determines they are not, then the department may impose enforcement remedies.

 

(d) The licensee may enter into a management agreement only if the management agreement creates a principal/agent relationship between the licensee and manager.

 

(e) The manager shall not subcontract the manager's responsibilities to a third party.

 

Subd. 3.  Terms of agreement.  A management agreement at a minimum must:

 

(1) describe the responsibilities of the licensee and manager, including items, services, and activities to be provided;


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(2) require the licensee's governing body, board of directors, or similar authority to appoint the administrator;

 

(3) provide for the maintenance and retention of all records in accordance with this chapter and other applicable laws;

 

(4) allow unlimited access by the commissioner to documentation and records according to applicable laws or regulations;

 

(5) require the manager to immediately send copies of inspections and notices of noncompliance to the licensee;

 

(6) state that the licensee is responsible for reviewing, acknowledging, and signing all facility initial and renewal license applications;

 

(7) state that the manager and licensee shall review the management agreement annually and notify the commissioner of any change according to applicable regulations;

 

(8) acknowledge that the licensee is the party responsible for complying with all laws and rules applicable to the facility;

 

(9) require the licensee to maintain ultimate responsibility over personnel issues relating to the operation of the facility and care of the residents including but not limited to staffing plans, hiring, and performance management of employees, orientation, and training;

 

(10) state the manager will not present as, or give the appearance that the manager is the licensee; and

 

(11) state that a duly authorized manager may execute resident leases or agreements on behalf of the licensee, but all such resident leases or agreements must be between the licensee and the resident.

 

Subd. 4.  Commissioner review.  The commissioner may review a management agreement at any time.  Following the review, the department may require:

 

(1) the proposed or current licensee or manager to provide additional information or clarification;

 

(2) any changes necessary to:

 

(i) bring the management agreement into compliance with this chapter; and

 

(ii) ensure that the licensee has not been relieved of the legal responsibility for the daily operations of the facility; and

 

(3) the licensee to participate in monthly meetings and quarterly on-site visits to the facility.