SECOND REGULAR SESSION
SENATE COMMITTEE SUBSTITUTE FOR
SENATE BILL NO. 1052
91ST GENERAL ASSEMBLY
TERRY L. SPIELER, Secretary.
4144S.09C
AN ACT
To repeal sections 198.006, 198.014 and 198.073, RSMo, relating to assisted living facilities, and to enact in lieu thereof four new sections relating to the same subject.
Section A. Sections 198.006, 198.014 and 198.073, RSMo, are repealed and four new sections enacted in lieu thereof, to be known as sections 198.005, 198.006, 198.016 and 198.073, to read as follows:
198.005. Notwithstanding any provision of law to the contrary, the term "residential care facility I" shall be referred to as "assisted living facility I" and the term "residential care facility II" shall be referred to as "assisted living facility II".
198.006. As used in sections 198.003 to 198.186, unless the context clearly indicates otherwise, the following terms mean:
(1) "Abuse", the infliction of physical, sexual, or emotional injury or harm;
(2) "Activities of daily living" or "ADL", the inability to perform one or more of the following six activities of daily living without personal or standby assistance, supervision or cues: eating, dressing, bathing, toileting, transferring and walking;
(3) "Administrator", the person who is in general administrative charge of a facility;
[(3)] (4) "Affiliate":
(a) With respect to a partnership, each partner thereof;
(b) With respect to a limited partnership, the general partner and each limited partner with an interest of five percent or more in the limited partnership;
(c) With respect to a corporation, each person who owns, holds or has the power to vote, five percent or more of any class of securities issued by the corporation, and each officer and director;
(d) With respect to a natural person, any parent, child, sibling, or spouse of that person;
(5) "Alzheimer's disease", a progressive, age-related and irreversible brain disorder that occurs gradually and results in memory loss, behavior and personality changes, and a decline in thinking abilities;
(6) "Assisted living facility I", any premises, other than an assisted living facility II, intermediate care facility, or skilled nursing facility, or independent living facility which is utilized by its owner, operator or manager to provide twenty-four hour accommodation to three or more residents, who are not related within the fourth degree of consanguinity or affinity to the owner, operator, or manager of the facility but can no longer live independently;
(7) "Assisted living facility II", any premises, other than an assisted living facility I, an intermediate care facility, or a skilled nursing facility, or independent living facility which is utilized by its owner, operator or manager to provide twenty-four hour care and services to three or more residents who are not related within the fourth degree of consanguinity or affinity to the owner, operator, or manager of the facility, and who need or may be provided with assistance with any activities of daily living (ADL), and/or any instrumental activities of daily living (IADL), storage and distribution or administration of medications, supervision of health care under the direction of a licensed physician, and oversight while resident is in the facility or on its immediate property while not on leave of the facility;
(8) "Dementia", a general term for the loss of thinking, remembering and reasoning so severe that it interferes with an individual's daily functioning. Symptoms may also include changes in personality, mood and behavior. Dementia is irreversible when caused by disease or injury but may be reversible when related to depression, drug interaction, thyroid, vitamin or nutrition imbalances;
[(4)] (9) "Department", the Missouri department of social services;
[(5)] (10) "Emergency", a situation, physical condition or one or more practices, methods or operations which presents imminent danger of death or serious physical or mental harm to residents of a facility;
[(6)] (11) "Facility", any [residential care] assisted living facility I, [residential care] assisted living facility II, immediate care facility, or skilled nursing facility;
[(7)] (12) "Health care provider", any person providing health care services or goods to residents and who receives funds in payment for such goods or services under Medicaid;
(13) "Independent living facility", any group housing and services program, other than a skilled nursing facility, intermediate care facility, or assisted living facility, for three or more unrelated adults that promotes resident self-direction and participation in decisions that emphasize choice, dignity, privacy, individuality, independence and home-like surroundings;
(14) "Instrumental activities of daily living" or "IADL", the inability to perform one or more of the following eight instrumental activities of daily living without personal or standby assistance, supervision or cues: preparing meals, shopping for personal items, medication management, managing money, using the telephone, housework and transportation ability;
[(8)] (15) "Intermediate care facility", any premises, other than a [residential care] assisted living facility I, [residential care] assisted living facility II, or skilled nursing facility, which is utilized by its owner, operator, or manager to provide twenty-four hour accommodation, board, personal care, and basic health and nursing care services under the daily supervision of a licensed nurse and under the direction of a licensed physician to three or more residents dependent for care and supervision and who are not related within the fourth degree of consanguinity or affinity to the owner, operator or manager of the facility;
[(9)] (16) "Manager", any person other than the administrator of a facility who contracts or otherwise agrees with an owner or operator to supervise the general operation of a facility, providing such services as hiring and training personnel, purchasing supplies, keeping financial records, and making reports;
[(10)] (17) "Medicaid", medical assistance under section 208.151, RSMo, et seq., in compliance with Title XIX, Public Law 89-97, 1965 amendments to the Social Security Act (42 U.S.C. 301 et seq.), as amended;
[(11)] (18) "Neglect", the failure to provide, by those responsible for the care, custody, and control of a resident in a facility, the services which are reasonable and necessary to maintain the physical and mental health of the resident, when such failure presents either an imminent danger to the health, safety or welfare of the resident or a substantial probability that death or serious physical harm would result;
[(12)] (19) "Operator", any person licensed or required to be licensed under the provisions of sections 198.003 to 198.096 in order to establish, conduct or maintain a facility;
(20) "Oversight", a facility has an awareness of a resident's whereabouts, is able to intervene if a crisis arises for the resident, unless otherwise requested by a resident through a living will or other advanced directive which is relied upon in good faith by the facility, or unless otherwise specified in the resident's admission agreement or negotiated risk management;
[(13)] (21) "Owner", any person who owns an interest of five percent or more in:
(a) The land on which any facility is located;
(b) The structure or structures in which any facility is located;
(c) Any mortgage, contract for deed, or other obligation secured in whole or in part by the land or structure in or on which a facility is located; or
(d) Any lease or sublease of the land or structure in or on which a facility is located.
"Owner" does not include a holder of a debenture or bond purchased at public issue nor does it include any regulated lender unless the entity or person directly or through a subsidiary operates a facility;
[(14)] (22) "Resident", a person who by reason of aging, illness, disease, or physical or mental infirmity receives or requires care and services furnished by a facility and who resides or boards in or is otherwise kept, cared for, treated or accommodated in such facility for a period exceeding twenty-four consecutive hours;
[(15) "Residential care facility I", any premises, other than a residential care facility II, intermediate care facility, or skilled nursing facility, which is utilized by its owner, operator or manager to provide twenty-four hour care to three or more residents, who are not related within the fourth degree of consanguinity or affinity to the owner, operator, or manager of the facility and who need or are provided with shelter, board, and with protective oversight, which may include storage and distribution or administration of medications and care during short-term illness or recuperation;
(16) "Residential care facility II", any premises, other than a residential care facility I, an intermediate care facility, or a skilled nursing facility, which is utilized by its owner, operator or manager to provide twenty-four hour accommodation, board, and care to three or more residents who are not related within the fourth degree of consanguinity or affinity to the owner, operator, or manager of the facility, and who need or are provided with supervision of diets, assistance in personal care, storage and distribution or administration of medications, supervision of health care under the direction of a licensed physician, and protective oversight, including care during short-term illness or recuperation;
(17)] (23) "Skilled nursing facility", any premises, other than a [residential care] assisted living facility I, a [residential care] assisted living facility II, or an intermediate care facility, which is utilized by its owner, operator or manager to provide for twenty-four hour accommodation, board and skilled nursing care and treatment services to at least three residents who are not related within the fourth degree of consanguinity or affinity to the owner, operator or manager of the facility. Skilled nursing care and treatment services are those services commonly performed by or under the supervision of a registered professional nurse for individuals requiring twenty-four hours a day care by licensed nursing personnel including acts of observation, care and counsel of the aged, ill, injured or infirm, the administration of medications and treatments as prescribed by a licensed physician or dentist, and other nursing functions requiring substantial specialized judgment and skill;
[(18)] (24) "Vendor", any person selling goods or services to a health care provider.
198.016. 1. In any unlicensed facility which is contiguous to, or on the campus of, a licensed facility residents may request assistance with medications. Such assistance may be in the form of reminders, assistance with self-medication, or administration of medications, other than intravenously, by staff licensed or certified by the department of health and senior services. All medications must be stored in the resident's room. The department shall promulgate rules for the administration of medications to residents.
2. The department of health and senior services shall promulgate rules which ensure that assisted living programs promote resident self-direction and participation in decisions that emphasize choice, dignity, privacy, individuality, home-like surroundings and independence to the extent possible for the resident. Programs shall ensure that there shall be, at a minimum, general supervision of each resident. Supportive services may be provided by the owner or operator of the facility or the resident shall have the option to obtain such services from other providers. Supportive services may include assistance with activities of daily living (ADL), and/or instrumental activities for daily living (IADL).
3. Any rule or portion of a rule, as that term is defined in section 536.010, RSMo, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536, RSMo, and, if applicable, section 536.028, RSMo. This section and chapter 536, RSMo, are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536, RSMo, to review, to delay the effective date or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2002, shall be invalid and void.
198.073. 1. [Except as provided in subsection 3 of this section, a residential care facility II or residential care facility I shall admit or retain only those persons who are capable mentally and physically of negotiating a normal path to safety using assistive devices or aids when necessary, and who may need assisted personal care within the limitations of such facilities, and who do not require hospitalization or skilled nursing care.] An individual may be accepted for residency in an assisted living facility I or assisted living facility II or remain in residence if the facility:
(1) Provides for or secures appropriate services to meet the scheduled and unscheduled needs of the resident;
(2) Has twenty-four hour staff appropriate in numbers and with appropriate skills to provide such services;
(3) Has a written plan for the protection of all residents in the event of disasters. Such plan may include keeping residents in place, evacuating residents to areas of refuge, evacuating residents from the building when necessary or other methods of protection based on the emergency and the individual building design; and
(4) Has written verification signed by the resident or by a family member or legal representative and the resident's physician and the facility representative stating how the facility will meet the scheduled and unscheduled needs of the resident.
2. Notwithstanding the provisions of subsection 3 of this section, those persons previously qualified for residence who may have a temporary period of incapacity due to illness, surgery, or injury, which period does not exceed forty-five days, may be allowed to remain in a [residential care] assisted living facility II or [residential care] assisted living facility I if approved by a physician.
3. A [residential care] assisted living facility II may admit or continue to care for [those persons who are physically capable of negotiating a normal path to safety using assistive devices or aids when necessary but are mentally incapable of negotiating such a path to safety that have been diagnosed with Alzheimer's disease or Alzheimer's related] individuals with dementia that require assistance in order to evacuate in the event of a disaster, if the following requirements are met:
(1) [A family member or legal representative of the resident, in consultation with the resident's primary physician and the facility, determines that the facility can meet the needs of the resident. The facility shall document the decision regarding continued placement in the facility through written verification by the family member, physician and the facility representative;
(2)] The facility is equipped with an automatic sprinkler system, in compliance with National Fire Protection Association Code 13 or National Fire Protection Association Code 13R, and an automated fire door system and smoke alarms in compliance with 13-3.4 of the [1997] 2000 Life Safety Codes for Existing Health Care Occupancy;
[(3) In a multilevel facility, residents who are mentally incapable of negotiating a pathway to safety are housed only on the ground floor;
(4)] (2) The facility shall take necessary measures to provide residents with the opportunity to explore the facility and, if appropriate, its grounds;
[(5) The facility shall be staffed twenty-four hours a day by the appropriate number and type of personnel necessary for the proper care of residents and upkeep of the facility. In meeting such staffing requirements, every resident who is mentally incapable of negotiating a pathway to safety] (3) In meeting staff requirements, every resident with dementia who requires the physical assistance of two people in order to evacuate in the event of a disaster shall count as three residents. All on-duty staff of the facility shall, at all times, be awake, dressed and prepared to assist residents in case of emergency;
[(6)] (3) Every resident [mentally incapable of negotiating a pathway to safety in the facility] with dementia that requires assistance in order to evacuate in the event of a disaster shall be assessed by a licensed professional, as defined in sections 334.010 to 334.265, RSMo, chapter 335, RSMo, or chapter 337, RSMo, with an assessment [instrument utilized by the division of aging known as the minimum data set used for assessing residents of skilled nursing facilities] tool for community-based services for persons with dementia determined by the department of health and senior services:
(a) Upon admission;
(b) At least [semiannually] annually; and
(c) When a significant change has occurred in the resident's condition which may require additional services;
[(7)] (4) Based on the assessment in subdivision [(6)] (4) of this subsection, a licensed professional, as defined in sections 334.010 to 334.265, RSMo, chapter 335, RSMo, or chapter 337, RSMo, shall develop an individualized service plan for every resident [who is mentally incapable of negotiating a pathway to safety] with dementia that requires assistance in order to evacuate in the event of a disaster. Such individualized service plan shall be implemented by the facility's staff to meet the specific needs of the resident;
[(8)] (5) Every facility shall use a personal electronic monitoring device for any resident whose physician recommends the use of such device;
[(9) All facility personnel who will provide direct care to residents who are mentally incapable of negotiating a pathway to safety shall receive at least twenty-four hours of training within the first thirty days of employment. At least twelve hours of such training shall be classroom instruction, with six classroom instruction hours and two on-the-job training hours related to the special needs, care and safety of residents with dementia;
(10) All personnel of the facility, regardless of whether such personnel provides direct care to residents who cannot negotiate a pathway to safety, shall receive on a quarterly basis at least four hours of in-service training, with at least two such hours relating to the care and safety of residents who are mentally incapable of negotiating a pathway to safety;]
(6) The facility shall comply with the training requirements pursuant to subsection 8 of section 660.050, RSMo;
[(11)] (7) Every facility shall make available and implement self-care, productive and leisure activity programs for persons with dementia which maximize and encourage the resident's optimal functional ability;
[(12)] (8) Every facility shall develop and implement a plan to protect the rights, privacy and safety of all residents and to prevent the financial exploitation of all residents[; and
(13) A licensee of any licensed residential care facility or any residential care facility shall ensure that its facility does not accept or retain a resident who is mentally incapable of negotiating a normal pathway to safety using assistive devices and aids that:
(a) Has exhibited behaviors which indicate such resident is a danger to self or others;
(b) Is at constant risk of elopement;
(c) Requires physical restraint;
(d) Requires chemical restraint. As used in this subdivision, the following terms mean:
a. "Chemical restraint", a psychopharmacologic drug that is used for discipline or convenience and not required to treat medical symptoms;
b. "Convenience", any action taken by the facility to control resident behavior or maintain residents with a lesser amount of effort by the facility and not in the resident's best interests;
c. "Discipline", any action taken by the facility for the purpose of punishing or penalizing residents;
(e) Requires skilled nursing services as defined in subdivision (17) of section 198.003 for which the facility is not licensed or able to provide;
(f) Requires more than one person to simultaneously physically assist the resident with any activity of daily living, with the exception of bathing;
(g) Is bed-bound or chair-bound due to a debilitating or chronic condition.
4. The facility shall not care for any person unless such facility is able to provide appropriate services for and meet the needs of such person].
[5.] 4. Nothing in this chapter shall prevent a facility from discharging a resident who is a danger to himself or herself, or to others.
[6. The training requirements established in subdivisions (9) and (10) of subsection 3 of this section shall fully satisfy the training requirements for the program described in subdivision (18) of subsection 1 of section 208.152, RSMo.
7. The division of aging] 5. The department of health and senior services shall promulgate rules to ensure compliance with this section and to sanction facilities that fail to comply with this section. Any rule or portion of a rule, as that term is defined in section 536.010, RSMo, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536, RSMo, and, if applicable, section 536.028, RSMo. This section and chapter 536, RSMo, are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536, RSMo, to review, to delay the effective date or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, [1999] 2002, shall be invalid and void.
[198.014. The department of health and senior services, with the full cooperation of and in conjunction with the department of social services, shall evaluate the implementation and compliance of the provisions of subdivision (3) of subsection 1 of section 198.012 in which rules, requirements, regulations and standards pursuant to section 197.080, RSMo, for residential care facilities II, intermediate care facilities and skilled nursing facilities attached to an acute care hospital are consistent with the intent of chapter 198. A report of the differences found in the evaluation conducted pursuant to this section shall be made jointly by the departments of health and senior services and social services to the governor and members of the general assembly by January 1, 2000.]