2021 in Review
There was a significant amount of legislative activity this year. Since the 2021 sessions have come to a close for most states, we wanted to provide an overview of the laws that passed in 2021 to date. Many of the laws are directly related to COVID-19, of course. Others that were not directly tied to the pandemic may have been prompted by it indirectly, as existing issues were brought to the forefront.
- COVID-19 liability protection for health care facilities, including those licensed by the Department of Public Health or Department of Mental Health, except in cases involving wanton, reckless, willful, or intentional misconduct. (SB 30, became law on February 11, 2021).
- SB 307, enacted on April 29, 2021, sets minimum standards for visitation when visitation is limited due to a public health emergency.
- SB 1377, signed into law on April 5, 2021, creates COVID-19 liability protections. If the governor declares a state of emergency for a public health pandemic, a person or provider that acts in good faith to protect a customer, student, tenant, volunteer, patient, guest or neighbor or the public from injury is not liable for damages in any civil action unless there was willful misconduct or gross negligence. A person or provider is presumed to have acted in good faith if the person or provider adopted and implemented reasonable policies related to the public health pandemic.
- SB 1824, signed by the Governor on June 30, 2021, expands the Board of Examiners for assisted living facility managers from nine to eleven by adding seats for an organization that advocates for the elderly and for a person who is a family member of a resident in nursing or assisted living care. This indicates a sensitivity to more inclusion by family members and advocates of long-term care residents. Additionally, beginning July 1, 2021, all new licenses and certifications issued by the Board must be approved by both the Board and the Department of Health Services.
- HB 1061, which became law on March 10, 2021, creates the “No Patient Left Alone Act.” This Act mandates that residents in assisted living or residential care are allowed at least one support person who is permitted to be physically present with the resident on a daily basis at reasonable times.
- The state created an Alzheimer’s Disease and Dementia Advisory Council to examine the needs of people living with dementia, the services currently available in the state, and the ability of providers and facilities to meet the identified needs. The Council then is to formulate a State Alzheimer’s Plan and make annual reports to the Governor and Legislature. (HB 1434, effective March 17, 2021).
- SB 568, which became law on April 19, 2021, makes changes to the licensing statute for long-term care facilities. Every facility must be licensed, but this Act eliminates the annual renewal and makes licenses effective without expiration unless the license is revoked, suspended, or terminated. Annual license fees, however, must still be paid. Language was also added regarding change of ownership requirements.
- $15 million allocated to establish a grant program for programs providing assistance to older Coloradans. (SB 21-290, signed into law on July 6, 2021).
- Maintaining an assisted living residence without a license is downgraded from a misdemeanor (subject to higher fines and jail) to a “civil infraction,” which is punishable by a fine of up to $100. (SB 21-271, signed on July 6, 2021).
- SB 1030 was signed by the Governor on July 13, 2021. This Act affects nursing homes and “dementia special care units” – which include secured portions of assisted living facilities. This Act requires these facilities to have full-time infection prevention and control specialists. The facilities also must provide an emergency plan of operation on or before January 1, 2022, as well as “encourage” establishment of a family council for good communication between families and the facility. Nursing homes have additional requirements, such as maintaining at least a two-month supply of PPE.
- The passage of SB 973 requires the State to get input from resident and family councils on new proposed regulations, and to include representatives from these groups in task forces appointed to study issues concerning living and care conditions at long-term care facilities.
- HB 6666 was signed into law on July 6, 2021, and makes a number of changes to the public health statute. One change is to require personal care homes to position residents’ beds “in a manner that promotes resident care and that provides at least a 3-foot clearance at the sides and foot of each bed.”
- HB 6634, signed on June 24, 2021, allows long-term care facility residents to designate essential support persons who may visit and support their physical, emotional, psychological and socialization needs despite other visitation restrictions and to establish a state-wide visitation policy at long-term care facilities.
- SB 975 was signed on June 16, 2021, and affirms that residents of long-term care facilities have the right to treat their living quarters as their homes and have the same rights as all other state residents, including the right to use for virtual visitation and the right to file grievances for violations of their rights.
- Last year’s Act to provide liability protection from COVID-19 claims was extended to apply to causes of action accruing until July 14, 2022. (HB 112, enacted July 1, 2021).
- The state division of aging must develop a strategic plan for dementia that will include proposed action steps and how to implement these steps, and that will address the state of dementia in Indiana and how to increase dementia awareness and the dementia workforce. (HB 1177, signed on April 8, 2021).
- SB 1069, signed on April 15, 2021, requires housing with services establishments to make certain disclosures concerning Alzheimer’s and dementia special care and file the disclosure with the division of aging. The division of aging must publish the disclosures.
- HB 1002, signed on April 29, 2021, creates liability protection from COVID-19 related claims, provided that the acts or omissions complained of do not constitute gross negligence, willful or wanton misconduct, or intentional misrepresentation.
- H.B.2126, signed on April 9, 2021, provides immunity from civil liability for COVID-19 claims for certain covered facilities, including adult care homes, community mental health centers, crisis intervention centers, community service providers and community developmental disability organizations. This immunity exists as long as the facility was in substantial compliance with public health directives and is not shown to have been engaged in gross negligence, or willful, wanton, or reckless conduct.
- HB 2114, signed on May 3, 2021, establishes a senior care task force to study a number of issues, including: the provision of care for seniors who suffer from Alzheimer’s disease, dementia or other age-related mental health conditions; the administration of antipsychotic medications to adult care home residents; safeguards to prevent abuse, neglect and exploitation; adult care home surveys and fines; funding and implementation of the Kansas Senior Care Act; senior day care resources; and rebalancing of home and community-based services. The task force is to submit a report by the start of the 2023 legislative session.
- HB 2121 amends current law to increase the penalty for mistreatment of a dependent adult that lives in an adult care home to a severity level 2 felony. This includes physical injury, unreasonable confinement, or unreasonable punishment. (Signed by the Governor on May 26, 2021).
- The healthcare stabilization fund exists for the purpose of paying damages for personal injury or death arising from the rendering, or failure to render professional services by a healthcare provider. This fund is to be administered by a board of governors. SB 78, signed by the Governor on May 26, 2021, provides for the composition of the 11-person board of governors, which must include one representative of adult care homes.
- SB 61, signed on March 22, 2021, amends the licensing statute to require direct-care staff members who work with residents with Alzheimer’s or other dementias to receive initial and on-going training that is approved by the Cabinet for Health and Family Services.
- SB 5, which became law on April 11, 2021, provides COVID-19 liability protection. By allowing someone to enter a premises, the owner does not warrant that the premises is safe from any risk of exposure, does not owe a duty to protect from or warn of any risk, and does not incur liability for damages. This limitation does not apply in the case of wanton, willful, malicious, or grossly negligent conduct, or intentional failure to adhere to executive actions.
- In the event that an assisted living program becomes a resident’s representative payee, SB 0507, which became public law on May 30, 2021, requires that the facility report to the Division of Consumer Protection the use of Social Security benefits and other government funds by residents. Additionally, any allegations of unfair, abusive, or deceptive practices must be reported.
- HB 0416 (and companion SB 0204) became law on May 30, 2021, and requires the Maryland Department of Health to establish a “resident bill of rights” for residents of assisted living facilities which will include certain training and staffing requirements for Alzheimer’s special care units in assisted living facilities.
- HB 0312, enacted May 30, 2021, establishes a Class ALP (assisted living program) beer, wine, and liquor license that allows the facility to provide, store, and serve alcoholic beverages in Hartford County.
- Certain COVID-related provisions are extended. This includes allowing assisted living residences to care for residents that need skilled nursing care if it has sufficient staffing to meet the needs of the residents. This allowance is valid until termination of the emergency declaration or until December 15, 2021, whichever is sooner. (S. 2475, signed on June 16, 2021).
- SB 2221, effective March 10, 2021, creates a three-year pilot program to fund respite care to informal caregivers of people with Alzheimer’s and dementia.
- SB 51 was signed on July 7, 2021, and creates liability protection for COVID-related claims. A health care provider, including long term care facilities, shall not be liable in a COVID-19 medical liability action unless the plaintiff can prove recklessness or willful misconduct by the health care provider and that the personal injury was caused by such recklessness or willful misconduct.
- SB 65, signed on February 10, 2021, establishes COVID-19 liability protections. A lawsuit can only be brought if there is actual injury, and it involves an act that was intended to cause harm or constitutes gross negligence or willful and wanton misconduct. There is a safe harbor provision if the act or omission alleged to violate a duty of care was in substantial compliance or was consistent with statute, regulation, order, or public health guidance.
- HB 231, which became law on May 17, 2021, provides some relief to the state’s Certificate of Need requirement. The Certificate of Need requirement now applies if (1) there will be a capital expenditure (other than to acquire an existing facility) for any long-term care facility involving more than $1.5 million, or (2) if there is an increase in bed capacity, unless the number of beds involved is 10 or less or 10% or less of the licensed beds. “Long-term care facility” does not include residential care facilities, community homes for persons with disabilities, or foster homes for children.
- LB 139, signed on May 26, 2021, prohibits a person from bringing a civil suit as a result of any injuries or damages sustained from exposure to COVID-19. This liability protection only extends to alleged violations that are in compliance with public health guidance that is applicable to the person or place where the potential exposure occurred.
- AB 217, signed on May 25, 2021, instructs the Board to adopt regulations governing licensing and operation of residential facilities for groups that provide assisted living services. Assisted living providers must disclose the scope of services provided. Additionally, residents must have their own living units with bathrooms and that are only shared with another occupant upon consent of both residents. There are some exceptions to the bathroom requirement. Other resident-centered requirements are also included in the law, as are disaster response plans. The law also addresses facilities for other populations, such as transitional housing and sober homes.
- S. 2545, signed into law on March 3, 2021, establishes rights of LGBTQ residents in assisted living. Providers cannot discriminate against LGBTQ residents based in whole or in part on a person’s actual or perceived sexual orientation, gender identity, gender expression, intersex status, or human immunodeficiency virus (HIV) status. Prohibited acts include denial of admission, denying a request to share a room, and denial of expressions of gender identity.
- The Board of Public Utilities must adopt rules to provide priority power restoration to certain medical facilities, assisted living facilities, and nursing homes after a major event. (A. 1226, signed on March 1, 2021).
- Every long-term care provider that is licensed by the state must provide training from a list of approved standardized training programs to each direct care staff on (1) standards approved by the department for recognizing and treating Alzheimer’s disease and dementia, (2) person-centered care, (3) activities of daily living, and (4) other dementia–related subjects identified by the department. (HB 250, signed on April 7, 2021.)
- SB 2226, enacted on March 31, 2021, requires residential end-of-life facilities to get a license from the state department of health.
- HB 1175, which became law on April 27, 2021, provides protection from COVID-19 liability. A civil suit related to COVID-19 exposure must allege intent to cause harm or actual malice. Accordingly, persons and businesses are immune from COVID-19 related civil suits unless the person or business intended to cause harm or acted with actual malice through exposing others to COVID-19. Health care facilities also have immunity, unless the act or omission was willful and wanton, reckless, or intentional.
- HB 1465, signed on May 20, 2021, prohibits private businesses from requiring customers to provide documentation certifying vaccination or post-transmission recovery to gain access to or services from the business. However, this section does not apply to a healthcare provider, including a long-term care provider. This section also is only applicable to vaccinations authorized by the FDA pursuant to an emergency use authorization.
- HB 1877, which will become effective on November 1, 2021, allows residents of assisted living to receive home health care and nursing care through a home care agency, and also may receive hospice services. If a resident of an assisted living center develops a disability that meets the facility’s discharge criteria, it may be possible to find a reasonable accommodation for that resident so that they may remain in place in the assisted living center. This Bill also sets limitations on the use of antipsychotic drugs by a resident in assisted living. Specifically, if an antipsychotic medication is prescribed for a resident, the assisted living center must do all of the following:
1. Ensure the resident is reassessed by a physician, physician assistant, Advanced Practice Registered Nurse, or registered nurse, as needed, but at least quarterly, for the effectiveness and possible side effects of the medication. The results of the assessments shall be documented in the resident’s record and provided to the resident or the representative of the resident;
2. Ensure all resident care staff administering medications understand the potential benefits and side effects of the medications; and
3. When an antipsychotic drug is prescribed on an as-needed basis (PRN) for a resident, the assisted living center shall:
a. document in the resident’s record the rationale for use and a detailed description of the condition which indicates the need for administration of a PRN antipsychotic drug,
b. monitor the use of PRN antipsychotic drugs for potential harm to the resident, including, but not limited to, the presence of significant adverse side effects, use of the drugs for inappropriate purposes such as discipline or staff convenience, or use contrary to the prescription. The monitoring required by this subparagraph shall be conducted by a licensed health care professional and shall occur at least monthly, and document in the resident’s record the results of the monitoring required in subparagraph b of this paragraph, including, but not limited to, the effectiveness of the medication, the presence of any side effects, and any inappropriate use for each PRN antipsychotic drug given.
- SB 654, signed on April 20, 2021, makes minor modifications in license fees for residential care and assisted living facilities and extends the licensure period from 24 to 36 months.
- Under SB 388, signed on April 27, 2021, assisted living facilities and residential care homes can only refer a person for paid home care services if the home care provider is licensed.
- HB 1794, signed by the Governor on May 27, 2021, makes some modifications to the Alzheimer’s Disease Special Care Disclosure Act relating to the disclosures a facility that publicly advertises, markets, or promotes themselves as a facility that offers treatment designed for persons with Alzheimer’s dementia must make. Additionally, this law creates the Alzheimer-Dementia Disclosure Act Advisory Council to make recommendations regarding the disclosures and other rules promulgated pursuant to the Alzheimer’s Dementia and Other Forms of Dementia Special Care Disclosure Act.
- SB 266 became law on July 7, 2021, and requires the Department of Human Services to assess whether a residential care facility or facility with memory care endorsement has sufficient and qualified awake direct care staff to meet the needs of each resident 24 hours a day. It also requires the Department to publish and distribute a regulatory framework for facilities on enhanced oversight and supervision programs by April 1, 2022.
- Oregon also made changes to its residential facility licensing statute, including to specify that the Department may consider the license applicant’s history of regulatory and safety compliance and operational experience in this state or any other jurisdiction. (SB 86, effective January 1, 2022).
- On June 30, 2021, Pennsylvania amended its Fiscal Code to allocate federal money from the Coronavirus State Fiscal Recovery Fund to long-term living programs. This program will provide much needed relief for homes that suffered COVID-related expenses.
- A total of $247,000,000 will be distributed in the form of one-time payments to non-public and county nursing facilities based on a facility’s number of medical assistance days and on the number of licensed beds.
- $30,000,000 will be distributed to assisted living residences and personal care homes based on occupancy levels in early 2020.
- $5,000,000 will be made available for grants of up to $15,000 to long-term care facilities (including assisted living and personal care homes) to implement best practices for indoor air management strategies to reduce the risk of exposure to COVID-19.
Distributions will be tied to costs incurred due to COVID-19 between March 1, 2020, and December 21, 2021. To be eligible, an entity must be in operation as of June 1, 2021. The Department of Human Services will establish a format for submitting documentation. Payments under this program cannot duplicate reimbursement received from other federal, state, or other funding. (HB 1348, enacted June 30, 2021).
- HB 649, enacted on July 1, 2021, establishes that during a declaration of disaster emergency, residents of congregate care shall be able to designate an essential caregiver to provide in-person physical or emotional support. Congregate care facilities include assisted living, personal care homes, and intermediate care facilities. Visitation must be in accordance with protocols set by the Department. The facility itself may also establish safety protocols for visits by essential caregivers.
- While medical marijuana has been legal in Pennsylvania since 2016, a new law allows residents in long-term care to designate caregivers to deliver medical marijuana if certain criteria are met. Medical marijuana is only authorized for a “serious medical condition” as specifically enumerated by the Act. Previously, the Act limited the amount of marijuana that could be on hand to a 30-day supply. However, the amendment extends this to a 90-day supply. The amendment also removes the restriction that limited people from acting as caregivers to no more than five patients.
- SB 6 became law without the Governor’s signature on July 8, 2021. The Act requires the Department of Health to promulgate rules and regulations providing for the designation of essential caregivers to provide in-person physical or emotional support to a resident of a nursing home or long-term care facility during the period of fifteen (15) days after the declaration of disaster emergency and until sixty (60) days after the termination of the declaration of disaster emergency.
- The “South Carolina COVID-19 Liability Immunity Act” protects businesses and healthcare providers from lawsuits related to COVID claims if they were reasonably adhering to public health guidance. This applies to all civil and administrative causes of action that arise between March 13, 2020, and June 30, 2021, or 180 days after the final state of emergency is lifted for COVID-19 in this State, whichever is later. (SJR 0147).
- Civil tort liability immunity for health care facilities, including residential care, intermediate care, and elder group homes, for COVID-19 related claims except in the case of gross negligence, recklessness, or willful misconduct. (HB 1046, signed on February 18, 2021).
- Each resident of an assisted living facility has a right to receive visitors of the resident’s own choosing, at the time of the resident’s own choosing, provided the visitation does not impose on the rights of another resident. An assisted living facility must post all policies and procedures related to visitation rights and provide copies to the resident and the resident’s family. Visitation can be limited in accordance with law or during a health emergency, but the facility must inform the resident and family members. (HB 1139, signed March 29, 2021).
- HB 3720 has a number of provisions, including to limit the amount of penalties associated with on-site regulatory visits to $5,000 for facilities with fewer than 60 beds. It also creates a seat on the Long-Term Care Facilities Council for an intermediate care facility for individuals with developmental or intellectual disabilities. (Signed June 16, 2021).
- HB 1423, signed on June 16, 2021, makes clear that inspectors can make unannounced inspections of long-term care facilities. In fact, by law, inspectors must conduct at least one unannounced inspection per year. During this inspection, the commission shall invite at least one person as a citizen advocate.
- With the passage of HB 1681, assisted living facilities cannot be located in the 100-year floodplain if they are in a county with a population of more than 3.3 million, are a commercial enterprise, and have two or more residents. This Act applies only to new facilities (not to expansions or renovations of existing facilities) and takes effect September 1, 2021.
- In-person visitation with a religious counselor during a public health emergency is guaranteed for residents of nursing, continuing care, assisted living, and special care facilities, although guidelines can be established for such visits. (SB 572).
- Similarly, residents may designate an “essential caregiver,” such as a “family member, friend, or other individual,” to visit them at the facility. Certain safety limitations can be placed on these visits. (SB 25, signed on June 14, 2021, and effective on September 1, 2021).
- SB 383, signed on June 14, 2021, requires an assisted living facility that is advertising, marketing, or otherwise promoting that the facility provides memory care services to provide to each facility resident written notice disclosing whether the facility holds a license or does not hold a license classified under Section 247.029 to provide personal care services to residents with Alzheimer’s disease or related disorders.
- Applicants for employment at an assisted living facility must state whether they have been convicted of a criminal offense. If the applicant has lived in another state in the preceding five years, the facility must conduct a name-based criminal history check in each state in which the applicant lived. If a facility hires a person pending the criminal history results, that person cannot have direct contact with residents until the facility can verify that they are not barred from employment. (SB 271, effective September 1, 2021).
- Residents can designate assisted living facilities as caregivers for medical cannabis purposes. (SB 81, signed into law on February 25, 2021).
- HB 226, signed on March 16, 2021, requires assisted living and nursing homes to inform residents whether they limit access to particular health care providers. The bill specifies procedures and disclosures related to such limitations.
- Assisted living facilities and other health care institutions have a duty to report certain information about people who are licensed, certified, or registered. This includes substance abuse, psychiatric conditions, unethical conduct, and disciplinary actions. (HB 1913, signed into law on February 25, 2021).
- Caregivers in assisted living facilities who are authorized to distribute medication can also distribute and administer cannabis oil for residents. (HB 1988, signed on March 18, 2021).
- During a declared Public Health Emergency related to a communicable disease, the state regulator can enact regulations to require each assisted living facility to establish a protocol to allow residents to receive visits from a rabbi, priest, minister, or clergy of any religious denomination consistent with guidance from the CDC and others. The facility may enact protocols to restrict the frequency and duration of visits and to set certain other limitations. (SB 1356, signed on April 7, 2021).
- HB 1218, enacted on May 3, 2021, establishes a variety of new provisions for assisted living facilities, including that the facility must have a communications system to ensure that residents have 24-hour access to communications with family, medical providers, and others. The communications equipment must provide for auditory privacy, not be located in the staff office, be accessible and usable by persons with hearing loss and other disabilities, and not require payment for local calls. Assisted living facilities must also develop and maintain a comprehensive disaster preparedness plan which is updated annually and on which staff are trained when they start work at the facility.
- SB 5115, enacted on May 11, 2021, establishes health emergency labor standards. During a health emergency, frontline employees – including those working in assisted living – who contract a contagious disease that is the subject of the health emergency are presumed to have an occupational injury. Employers who require their workers to wear PPE are required to provide it. Lower paid frontline workers are entitled to health emergency pay. Sets requirements for family and medical leave pay.
- HB 2368, signed on April 28, 2021, created “Melissa Smith’s Law,” which ensures that family members may visit sick loved ones during declared public health emergencies, so long as the facilities and visitors follow the appropriate procedures.
- Current law requires the Wyoming Department of Health to administer a state program to provide community based in-home services for Wyoming senior citizens and disabled adults eighteen (18) years of age and older. This Act makes the Department’s responsibility to administer this program subject to the availability of funding. (SF 0139, enacted April 6, 2021).
- HB 0049, enacted April 6, 2021, sets the license fee at $250 for assisted living facilities with 1 – 25 beds.