RALNA Legislative / Regulatory Update

The following is an overview of key legislation potentially affecting RALs that was enacted over the past year.

2020 Year in Review

The following is an overview of key legislation potentially affecting RALs that was enacted over the past year.

Alabama

AL S.B. 16, enacted March 12, 2020
The existence and functioning of the Board of Examiners of Assisted Living Administrators is continued until October 1, 2024.

Arizona

AZ S.B.1210, enacted June 5, 2020
Revises and expands training requirements for assisted living caregivers. Caregivers must complete 62 hours of on-the-job training under the direct supervision of a healthcare professional (physician, RN, LPN, or Assisted Living Facility Manager) and pass an examination.

California

CA A.B.1561 enacted September 28, 2020
This is a new planning and zoning law that requires a city or county to adopt a general plan for land use and development within its boundaries that includes, among other things, a housing element. The housing element must analyze potential and actual governmental constraints upon the maintenance, improvement, or development of housing for all income levels and for persons with disabilities.

Colorado

CO HB20-1101, enacted March 20, 2020
This act requires an agreement between an assisted living residence referral agency and a prospective resident of an assisted living residence to be in writing and include: (1) the right of the prospective resident or representative of the prospective resident to terminate the referral agency’s services for any reason at any time; and (2) a requirement that the referral agency communicate the cancellation of the agreement to all assisted living residences to which the prospective resident has been referred.

The act prohibits an assisted living residence from: (1) paying a referral fee to a referral agency if the agreement between the referral agency and the prospective resident has been terminated; and (2) selling the prospective resident’s or prospective resident’s representative’s contact information to a third party without written consent.

District of Columbia

DC PR23-0648 – Assisted Living Rulemaking Approval Resolution of 2020
Enacted January 21, 2020

The resolution approves rulemaking from the Department of Health. These rules are extensive and should be reviewed closely by anyone desiring to operate in the District of Columbia. The rules include:

• qualification and eligibility
• licensure
• admissions
• residents rights and quality of life
• required policies and procedures
• staffing and administrators
• medication administration
• reporting abuse, neglect, exploitation, and unusual incidents

Florida

FL C.S./H.B.767, enacted June 22, 2020
Revised numerous requirements and standards relating to ALF licensure, inspections, resident criteria, rights, staff training, and continuing education.

FL C.S./C.S./H.B. 607, enacted March 12, 2020
Requires a licensed home health agency that authorizes a registered nurse to delegate tasks to a certified nursing assistant or a home health aide to ensure that certain requirements are met; requires home health aides (a/k/a “Direct Care Workers”) to complete annual in-service training in medication administration and medication error prevention, in addition to existing annual in-service training requirements; creates the Excellence in Home Health Program and the Nurse Registry Excellence Program; and requires the agency to adopt rules establishing program criteria.

FL S.B. 596, enacted February 13, 2020
Requires that the Agency for Health Care Administration (ACHA) develop a website with information on the quality of care and service provided by assisted living facilities. The law specifies the type of information to be included on the website.

Georgia

GA H.B.987, enacted June 30, 2020
On or after July 1, 2021 personal care homes (RALs) with 25 or more beds must meet certain additional staffing and training requirements. This includes having a direct care staffing ratio of 1:15 during waking hours and 1:20 during nonwaking hours, provided that these ratios are adequate to meet the needs of the residents. A number of new requirements related to medications aides are provided. These include that medication aides must be registered and reviewed annually.

Most notably, personal care homes that hold themselves out as providing specialized memory care or charge higher rates for residents with Alzheimer’s or dementia must have a certificate from the department. To obtain this certificate, the memory care home must meet certain requirements, including:

  • One dementia trained direct care staff for every 12 residents on site during waking hours and for every 15 residents on site during nonwaking hours
  • One registered professional nurse, licensed practical nurse, or certified medication aide on-site at all times
  • Two direct care staff on-site at all times
  • One registered professional nurse or licensed practical nurse on-site or available in the building for a certain number of hours per week, depending on the size of the facility (8 hours for centers with 1 – 12 residents; 16 hours for centers with 13 – 30 residents)
  • Certain training requirements for all staff and direct care staff

The department was given the authority to enact other rules for memory care centers. Providers should watch for new regulatory activity in the coming year. This law also has COVID-related requirements for personal care homes with 25 or more beds.

The law expands the ability to regulate licensure of personal care home administrators. The licensing board can set requirements for licensure and require that an applicant pass a test.

Iowa

IA S.F.2299, enacted June 1, 2020
Enacting background check requirements for employees of assisted living.

IA S.F.2338, enacted June 18, 2020
Liability waiver for healthcare providers against injury and death suits related to COVID-19 unless the exposure was caused by recklessness or willful misconduct. Liability protection for premises owners for exposure to COVID-19, unless the premises owner recklessly disregards a substantial and unnecessary risk of exposure, exhibits malice, or engages in an intention act. Compliance with regulations, executive orders, or public health guidance creates a safe harbor.

Kentucky

KY S.B.123, enacted March 11, 2020
The Department of Aging and Independent Living was given administrative responsibility for home care, Alzheimer’s respite services and the personal care attendant program, and certification of assisted living facilities.

Louisiana

LA H.B.43, enacted October 28, 2020
Enables the department to promulgate COVID-19 related rules related to visitations in nursing homes and licensed adult residential care facilities.

S.B.12, enacted October 28, 2020
Provides access for patients of hospitals and residents of nursing homes, assisted living facilities, and other adult residential care homes to members of the clergy who volunteer to minister and provide religious sacraments and services, counseling, and mental health support during COVID-19 and other public health emergencies.

Also creates a liability waiver against injury and death suits related to COVID-19, except in cases involving gross negligence or willful misconduct.

LA S.R.32, enacted June 30, 2020
Directs the Louisiana Department of Health and Department of Veterans Affairs to implement policies for the health and safety of long-term care facility residents.

Maryland

MD S.B.0966, enacted May 8, 2020
Changes to the licensure requirements. Prohibits referrals to unlicensed assisted living programs. Sets requirements for people or agencies who make referrals to assisted living programs.

Michigan

MI H.B.6137, enacted November 5, 2020
Sets additional requirements for certain homes for the aged and nursing homes dedicated as CARE facilities and residents who test positive for coronavirus.

MI H.B.6117, enacted October 1, 2020
Sets fees for licensure and certificates of need.

Minnesota

MN H.F. 19, enacted December 16, 2020
This new law makes significant changes to Minnesota Statute 144G, particularly affecting licensing of RALs. Previously, RALs were considered Housing with Services. The Assisted Living licensure law had been repealed and there was a gap while the state was redrafting its framework. The new law, enacted on December 16, 2020, eliminates both the Housing with Services and Comprehensive Home Care Provider licenses. If Housing with Services homes want to continue operating and providing assisting living services, they must apply to convert to an Assisted Living license by June 1, 2021. If a provider does not want to convert, it must give a notice by May 31, 2021 to its residents that it will no longer be providing housing with services.

New requirements of Assisted Living licensees include:

  • Each assisted living facility must employ an assisted living director licensed or permitted by the Board of Executives for Long Term Services and Supports.
  • Assisted living services must delegated to unlicensed caregivers by a registered nurse. The staff must have access to a nurse on call 24/7.
  • Awake staff are required.
  • New assisted living facilities serving more than 6 residents must comply with the 2018 edition of the Facility Guidelines Institute “Guidelines for Design and Construction of Residential Health, Care and Support Facilities.” No exceptions were made for residential homes serving more than 6 people.

Missouri

MO H.B. 1387, enacted July 14, 2020
Missouri passed the “Authorized Electronic Monitoring in Long-Term Care Facilities Act”, which specifies the parameters of electronic monitoring by residents of long-term care facilities. Any electronic monitoring device must be owned and operated by the resident or the resident’s legal guardian.

New Hampshire

NH S.B.255, enacted February 11, 2020
Requires dementia training for care staff of assisted living and residential facilities.

New Jersey

NJ S.2785, enacted October 23, 2020
Requires long-term care facilities, as a condition of licensure, to implement policies to prevent social isolation of residents.

NJ A.4476, enacted September 16, 2020
Establishes a long term care emergency operations center.

North Carolina

NC H1105, enacted September 4, 2020
Provided $34 million to be evenly divided amongst multiple assisted living associations to purchase COVID-19 test kits.

NC S361, enacted July 1, 2020
Eliminates redundant inspections for adult care homes.

Oklahoma

OK H.B.2823, enacted May 22, 2020
This law continues the Governor’s Long Term Care Advisory Committee, which was set to expire.

OK S.B.1739, enacted May 18, 2020
This law relates to electronic monitoring devices (video or audio) placed in common areas or rooms of long term care facilities, including assisted living. Monitoring of a resident’s room can only be conducted with the written consent of the resident or a representative of the resident. Notice must be posted near the main entrance that the assisted living center uses electronic monitoring and audio devices in the facility. Tampering with or destroying a recording or an electronic monitoring device is prohibited and carries penalties. Interception or use of an intercepted communication of an electronic device is also prohibited, unless written consent is given.

Rhode Island

RI H.B.8094, enacted July 25, 2020
When a long-term home health care program is available, the department of human services must notify the person eligible to receive services of this availability before authorizing care in a nursing home or intermediate care facility. The law also requires the design and implementation of a standardized, community-based, comprehensive system for entry into state long-term care programs and services (subject to appropriations).

South Dakota

SD H.B.1056, enacted March 2020
Authorizing video monitoring of assisted living residents upon execution of an approved notice and consent form, and addressing additional notice and consent in the cases of resident roommates. Additional provisions provide authority to the roommate to limit the video monitoring.

SD S.C.R. 601, enacted October 5, 2020
Made $115 Million in funding from the CARES Act available as grants to health care providers, including assisted living facilities, to cover reduction in business. The grant period closed in October and funds must be spent by December 30, 2020.

Utah

UT H.B. 29, enacted April 1, 2020
Adding the words “and assisted living” to specific building code requirements:

  • In IBC, Section 407.2.5, the words “and assisted living facility” are added in the title and first sentence after the words “nursing home”.
  • In IBC, section 407.2.6, the words “and assisted living facility” are added in the title after the words “nursing home”.
  • In IBC Section 407.11, a new exception is added as follows: “Exception: an essential electrical system is not required in assisted living facilities.”

Vermont

S.342, enacted July 13, 2020
Vermont amended its Worker’s Compensation Act to provide that if a front line worker – including those in residential or long term care facilities – experiences death or disability due to COVID, it is presumed that it is an on the job injury so they can receive workers compensation benefits.

S.352, enacted October 7, 2020
Authorizes hazard pay grants for frontline workers, including those in residential care homes.

Virginia

VA H.B. 5059 / S.B.5082, enacted October 13, 2020
Virginia’s major RAL legislation provides immunity for civil liability related to COVID-19. The law provides that a licensed hospice, home care organization, private provider, assisted living facility, or adult day care center that delivers care to or withholds care from a patient, resident, or person receiving services who is diagnosed as being or is believed to be infected with the COVID-19 virus shall not be liable for any injury or wrongful death of the resident arising from a lack of necessary resources. This liability waiver applies except in cases involving gross negligence or willful misconduct.

VA H.B.4 / S.B.77 enacted April 22, 2020
Allowing criminal background information to be shared with assisted living employers.

VA S.B.185, enacted April 7, 2020
Allows nursing home, assisted living facility, hospice program, and hospice facility employees and staff members who are authorized to possess, distribute, or administer medications to residents to store, dispense, or administer cannabidiol oil or THC-A oil to a resident who has been issued a valid written certification for such medication.

VA S.B.471, enacted April 7, 2020
Directs the Board of Social Services to convene a work group to make recommendations regarding adoption of regulations for audio-visual recording of residents in assisted living facilities. The work group is to report its recommendations to the Board and General Assembly by December 1, 2020.

VA H.B.471, enacted March 2, 2020
Requires that assisted living administrators report to the Department of Health Professions any information of which they may become aware in their professional capacity that indicates a reasonable belief that a health care provider is in need of treatment or has been admitted as a patient for treatment of substance abuse or psychiatric illness that may render the health professional a danger to themself or residents.

West Virginia

WV H.B.4108, enacted April 15, 2020
Exempts assisted living facilities from the certificate of need process.

WV H.B.4434, enacted April 15, 2020
Directs the Department of Commerce to research, survey, study, and issue a public report on the existing workforce in the continuum of care (including assisted living), as well as the anticipated future workforce needs over the next 15 years. The purpose is to study the sustainability of the workforce.

WV H.B.4422, enacted April 15, 2020
Prohibits patient brokering of assisted living residents and others. However, the following is acceptable:

  • Payments made by an assisted living facility to an individual employed by the assisted living facility, or with whom the facility contracts to provide marketing services for the facility, if the individual clearly indicates that he or she works with or for the facility; and
  • Payments made to a resident of an assisted living facility who refers a friend, family members, or other individuals with whom the resident has a personal relationship to the assisted living facility, in which case the assisted living facility may provide a monetary reward to the resident for making the referral.

WV H.B.4581, enacted April 15, 2020
Background checks for assisted living employees.

Wisconsin

WI A.B.1038, enacted April 15, 2020
Removes earlier legal restrictions limiting supportive home care from being provided in adult family homes and residential care apartment complexes.

Wyoming

WY H.B.0109, enacted March 17, 2020
Providing for surveillance monitoring in the common areas of long term care facilities as the facility deems necessary. Also providing for the electronic monitoring in the resident’s room at the request of the resident or resident’s representative. Room recordings shall be the property of the resident or resident’s representative, but may be used by the facility subject to rules provided from the Department of Health.

WY H.B.0062, enacted March 9, 2020
Establishes senior health care districts to aid in the delivery of targeted health care services to individuals over the age of sixty (60), disabled adults, or individuals with medical or behavioral health care needs.

Disclaimer:
The summary of laws provided above is not meant to be exhaustive coverage on the laws passed during 2020, and primarily covers laws affecting operations of assisted living. There may be other matters in the law that affect the industry or specific residences that are not covered here.

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