SF 2304 (LSB 5055XS (17) 90)

SENATE FILE 2304

BY  CELSI, DONAHUE, DOTZLER, BISIGNANO, BOULTON, T. TAYLOR, PETERSEN, WEINER, QUIRMBACH, JOCHUM, TRONE GARRIOTT, WINCKLER, KNOX, WAHLS, and BENNETT

A BILL FOR

An Act relating to oversight for long-term care facilities, providing penalties, making an appropriation, and including effective date and retroactive applicability provisions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  10A.904  Definitions.
   As used in this subchapter, unless the context otherwise requires:
   1.  “Assisted living program” or “program” means the same as defined in section 231C.2.
   2.  “Health care facility” means the same as defined in section 135C.1.
   3.  “Long-term care facility” means a health care facility or an assisted living program.
   4.  “Long-term care facility safety council” or “safety council” means the long-term care facility safety council created in section 10A.905.
   5.  “Resident” means the same as defined in section 135C.1.
   6.  “Tenant” means the same as defined in section 231C.2.
    Sec. 2.  NEW SECTION.  10A.905  Long-term care facility safety council —— membership —— duties —— meetings.
   1.  A long-term care facility safety council is created.
   a.  The safety council shall include the following voting members:
   (1)  The director of health and human services, or the director’s designee.
   (2)  The state long-term care ombudsman, or the state long-term care ombudsman’s designee.
   (3)  The director of an area agency on aging, or the director’s designee.
   (4)  The state director of AARP, or the state director’s designee.
   (5)  Three public members appointed by the governor, and subject to confirmation by the senate, who are consumers or members of consumer groups or consumer organizations.
   b.  The safety council shall also include the director or the director’s designee as a nonvoting member.
   2.  The long-term care facility safety council shall do all of the following:
   a.  Determine and approve standards, including those relating to health and safety, for long-term care facilities.
   b.  Conduct informal conferences and reviews of health care facility applicants and licensees, and assisted living program applicants and certificate holders, and make recommendations for departmental action pursuant to sections 135C.10A and 231C.11B.
   c.  Review and make recommendations to the department regarding violations and penalties under chapters 135C and 231C.
   d.  Make recommendations to the department regarding the adoption or amendment of administrative rules.
   e.  Review the operation of long-term care facilities for which the department has referred a complaint received by the department to the office of long-term care ombudsman.
   f.  Receive recommendations from the state long-term care ombudsman regarding inspections of specific long-term care facilities, and changes in administrative rules regarding the health, safety, welfare, and rights of residents and tenants.
   g.  Submit an annual report to the general assembly by October 31 for the immediately preceding fiscal year, including any recommendations for changes in law to better protect residents and tenants, and a summary of all recommendations made by long-term care facilities during informal conferences.
   3.  The members shall elect a public member as the chairperson of the safety council annually.
   4.  The safety council shall hold an organizational meeting in July each year, and meetings shall be held as necessary to enable the safety council to expeditiously discharge its duties. Meeting dates shall be set upon adjournment or by call of the chairperson upon five days’ notice to the other members.
    Sec. 3.  Section 135C.1, Code 2024, is amended by adding the following new subsection:
   NEW SUBSECTION.  12A.  “Long-term care facility safety council” or “safety council” means the long-term care facility safety council created pursuant to section 10A.905.
    Sec. 4.  Section 135C.10, unnumbered paragraph 1, Code 2024, is amended to read as follows:
   The department shall have the authority to deny, suspend, or revoke a license in any case where the department finds that there has been repeated failure on the part of the a facility to comply with the provisions of this chapter or the rules or minimum standards promulgated hereunder under this chapter, or for any of the following reasons:
    Sec. 5.  Section 135C.10, Code 2024, is amended by adding the following new subsection:
   NEW SUBSECTION.  12.  The facility is issued three or more class I or federal immediate jeopardy violations within a twelve-month period for which a penalty was assessed.
    Sec. 6.  NEW SECTION.  135C.10A  Multiple violations within a twelve-month period —— informal conference and review by long-term care facility safety council —— recommended departmental actions.
   1.  At the time the department effects delivery of notice on an applicant or licensee under section 135C.11, based on the department’s authority under section 135C.10, subsection 12, to deny, suspend, or revoke a license, the department shall also notify the long-term care facility safety council.
   2.  a.  The safety council shall hold an informal conference with the applicant or licensee within ten working days of the mailing or service of notice to review the applicant’s or licensee’s history of violations for which a penalty was assessed under this chapter, and the response by the applicant or licensee in correcting such violations.
   b.  Following the informal conference and review, the safety council shall report its findings to the department, including any recommendations for departmental action as authorized under this chapter. The department shall proceed in accordance with the recommendations of the safety council. A health care facility may subsequently request a formal hearing and proceed under section 135C.11.
    Sec. 7.  Section 135C.14, unnumbered paragraph 1, Code 2024, is amended to read as follows:
   The department shall, in accordance with chapter 17A and with the approval of the council on health and human services long-term care facility safety council, adopt and enforce rules setting minimum standards for health care facilities. In so doing, the department, with the approval of the council on health and human services long-term care facility safety council, may adopt by reference, with or without amendment, nationally recognized standards and rules, which shall be specified by title and edition, date of publication, or similar information. The rules and standards required by this section shall be formulated in consultation with the director of health and human services or the director of health and human services’ designee, with the director, with the state long-term care ombudsman, and with affected industry, professional, and consumer groups, and shall be designed to further the accomplishment of the purposes of this chapter and shall relate to:
    Sec. 8.  Section 135C.14, subsection 5, Code 2024, is amended to read as follows:
   5.  Equipment essential to the health and welfare of the resident.  The rules shall require a health care facility that accepts state funding to annually adopt and provide to the department the health care facility’s policies regarding competitive procurement for supplies and equipment including transactions and associated reimbursement structures with any related party as defined in section 135C.7A.
    Sec. 9.  Section 135C.14, subsection 8, Code 2024, is amended by adding the following new paragraph:
   NEW PARAGRAPH.  g.  Facility policies and procedures regarding the use of arbitration agreements. The rules and standards shall prohibit any health care facility that accepts state funding from offering a resident, or requiring a resident to sign, an arbitration agreement that limits the resident’s inalienable right to seek full judicial review of a dispute as a precondition for being admitted to the facility.
    Sec. 10.  Section 135C.16, subsection 1, Code 2024, is amended to read as follows:
   1.  In addition to the inspections required by sections 135C.9 and 135C.38, the department shall make or cause to be made such further unannounced inspections as it deems necessary to adequately enforce this chapter. At On average, at least one general unannounced inspection shall be conducted for each health care facility within a thirty-month twelve-month period, not to exceed a period of fifteen months. The inspector shall show identification to the person in charge of the facility and state that an inspection is to be made before beginning the inspection. An employee of the department who gives unauthorized advance notice of an inspection made or planned to be made under this subsection or section 135C.38 shall be disciplined as determined by the director, except that if the employee is employed pursuant to the merit system provisions of chapter 8A, subchapter IV, the discipline shall not exceed the discipline authorized pursuant to that subchapter.
    Sec. 11.  Section 135C.36, subsection 1, Code 2024, is amended to read as follows:
   1.  A class I violation is one which presents an imminent danger or a substantial probability of resultant death or physical harm to the residents of the facility in which the violation occurs. A physical condition or one or more practices in a facility may constitute a class I violation. A class I violation shall be abated or eliminated immediately unless the department determines that a stated period of time, specified in the citation issued under section 135C.40, is required to correct the violation. A licensee is subject to a penalty of not less than two five thousand nor more than ten thousand dollars for each class I violation for which the licensee’s facility is cited.
    Sec. 12.  Section 135C.36, Code 2024, is amended by adding the following new subsection:
   NEW SUBSECTION.  1A.  A class I violation includes any confirmed instance of a facility retaliating against a resident or employee for filing a complaint or otherwise cooperating with the department or the office of long-term care ombudsman.
    Sec. 13.  Section 135C.38, subsection 1, paragraph a, Code 2024, is amended to read as follows:
   a.  Upon receipt of a complaint made in accordance with section 135C.37, the department shall make a preliminary review of the complaint. Unless the department concludes that the complaint is intended to harass a facility or a licensee or is without reasonable basis, the department shall make or cause to be made an on-site inspection of the health care facility which is the subject of the complaint within the time period determined pursuant to the following guidelines, which period shall commence on the date of receipt of the complaint:
   (1)  For nursing facilities, an on-site inspection shall be initiated as follows:
   (a)  Within two one working days day for a complaint determined by the department to be an alleged immediate jeopardy situation.
   (b)  Within ten five working days for a complaint determined by the department to be an alleged high-level, nonimmediate jeopardy situation.
   (c)  Within forty-five calendar days for a complaint determined by the department to be an alleged nonimmediate jeopardy situation, other than a high-level situation.
   (2)  For all other types of health care facilities, an on-site inspection shall be initiated as follows:
   (a)  Within two one working days day for a complaint determined by the department to be an alleged immediate jeopardy situation.
   (b)  Within twenty five working days for a complaint determined by the department to be an alleged high-level, nonimmediate jeopardy situation.
   (c)  Within forty-five calendar days for a complaint determined by the department to be an alleged nonimmediate jeopardy situation, other than a high-level situation.
    Sec. 14.  Section 135C.44, Code 2024, is amended to read as follows:
   135C.44  Treble Additional fines for repeated violations.
   The penalties authorized by section 135C.36 shall be trebled quadrupled for a second or subsequent class I or violation and tripled for a second or subsequent class II violation occurring within any twelve-month period if a citation was issued for the same class I or class II violation occurring within that period and a penalty was assessed therefor for the violation.
    Sec. 15.  NEW SECTION.  135C.49  Improper influence.
   1.  A member of the general assembly or an employee of the legislative or executive branch shall not attempt to influence a decision of the department during the course of an investigation, inspection, or appeal under this chapter.
   2.  An allegation of a violation of this section shall be investigated by the office of ombudsman established under section 2C.2. If the office of ombudsman determines a violation of this section has occurred, the office shall report the recommendations, including disciplinary action, pursuant to sections 2C.16 and 2C.19.
   3.  A person who is recommended for disciplinary action for a violation of this section is subject to a civil penalty of up to five thousand dollars per violation. A civil penalty collected pursuant to this section shall be credited to the department, shall be considered repayment receipts as defined in section 8.2, and shall be used by the department to enforce this chapter.
   4.  a.  A civil penalty for violations committed by an employee of the executive branch shall be assessed by the department.
   b.  A civil penalty for violations committed by a member or employee of the general assembly shall be assessed pursuant to a resolution approved by a majority of the house in which the member serves or by which the employee is employed. If the general assembly is not in session at the time a recommendation is received from the office of ombudsman, a civil penalty shall be assessed by a majority vote of the legislative council.
    Sec. 16.  Section 231.42, subsection 2, Code 2024, is amended by adding the following new paragraph:
   NEW PARAGRAPH.  f.  Make recommendations to the long-term care facility safety council created in section 10A.905 regarding inspections of specific health care facilities and assisted living programs, and changes in administrative rules regarding the health, safety, welfare, and rights of residents of health care facilities and tenants of assisted living programs.
    Sec. 17.  Section 231C.2, Code 2024, is amended by adding the following new subsection:
   NEW SUBSECTION.  7A.  “Long-term care facility safety council” or “safety council” means the long-term care facility safety council created in section 10A.905.
    Sec. 18.  NEW SECTION.  231C.11B  Multiple violations within a twelve-month period —— informal conference and review by long-term care facility safety council —— recommended departmental actions.
   1.  At the time the department effects delivery of notice on an applicant or certificate holder under section 231C.11, based on the assisted living program having been issued notice of three violations in a twelve-month period which presented imminent danger or a substantial probability of resultant death or physical harm to a tenant and for which a penalty was assessed under section 231C.14, the department shall also notify the long-term care facility safety council.
   2.  a.  The safety council shall hold an informal conference with the applicant or certificate holder within ten working days of the mailing or service of notice to review the applicant’s or certificate holder’s history of violations for which a penalty was assessed under this chapter, and the response by the applicant or certificate holder in correcting such violations.
   b.  Following the informal conference and review, the safety council shall report its findings to the department, including any recommendations for departmental action as authorized under this chapter. The department shall proceed in accordance with the recommendations of the safety council. An assisted living program may subsequently request a contested case hearing and proceed under section 231C.9A.
    Sec. 19.  2023 Iowa Acts, chapter 108, section 7, subsection 4, is amended to read as follows:
   4.  HEALTH FACILITIES
   a.  For salaries, support, maintenance, and miscellaneous purposes, and for not more than the following full-time equivalent positions:
   ...................................................................... $  4,862,971

                                                                          6,262,971
   ............................................................... FTEs        115.00

_________________________________________________________145.00

   b.  The department shall make all of the following information available to the public as part of the department’s development efforts to revise the department’s internet site:
   (1)  The number of inspections of health facilities conducted by the department annually by type of service provider and type of inspection.
   (2)  The total annual operations budget for the department that is associated with health facilities regulation, including general fund appropriations and federal contract dollars received by type of service provider inspected.
   (3)  The total number of full-time equivalent positions in the department that are associated with health facilities regulation, to include the number of full-time equivalent positions serving in a supervisory capacity, and serving as surveyors, inspectors, or monitors in the field by type of service provider inspected.
   (4)  Identification of state and federal survey trends, cited regulations, the scope and severity of deficiencies identified, and federal and state fines assessed and collected concerning nursing and assisted living facilities and programs.
   c.  It is the intent of the general assembly that the department continuously solicit input from health facilities regulated by the department to assess and improve the department’s level of collaboration and to identify new opportunities for cooperation.
   d.  Of the funds appropriated in this subsection, $2,400,000 shall be used to employ additional nursing facility inspectors and assisted living program monitors to perform additional safety inspections.
    Sec. 20.  STUDY AND RECOMMENDATIONS —— SPECIAL FOCUS LIST FOR LONG-TERM CARE FACILITIES.  The long-term care facility safety council created in section 10A.905, as enacted in this Act, shall study the feasibility of creating a special focus list for long-term care facilities in the state based on a review of special focus lists in other states. Following completion of the study, the safety council shall submit a report to the general assembly by February 1, 2025, including specific descriptions of successful special focus lists in other states, and recommendations for the creation of a special focus list in Iowa including necessary Code changes and the potential framework for the special focus list.
    Sec. 21.  OFFICE OF LONG-TERM CARE OMBUDSMAN —— APPROPRIATION.
   1.  There is appropriated from the general fund of the state to the office of long-term care ombudsman for the fiscal year beginning July 1, 2024, and ending June 30, 2025, the following amount, or so much thereof as is necessary, to be used for the purposes designated:
   To increase the number of local long-term care ombudsmen, including for salaries, support, administration, maintenance, and miscellaneous purposes:
   ...................................................................... $    300,000

   2.  The funding appropriated in this section is in addition to any other funds appropriated from the general fund of the state and any other full-time equivalent positions authorized for local long-term care ombudsmen during the same fiscal year. The funding shall be used to support local ombudsmen in fulfilling their duties pursuant to section 231.42 including to provide the resources necessary to complete site visits and to carry out other duties to protect and improve the health, safety, welfare, and rights of residents and tenants.
    Sec. 22.  CODE EDITOR DIRECTIVE.  The Code editor is directed to create a new subchapter X in chapter 10A as follows: subchapter X shall be entitled “Long-term Care Facility Safety Council” and shall include sections 10A.904 and 10A.905.
    Sec. 23.  EFFECTIVE DATE.  The following, being deemed of immediate importance, takes effect upon enactment:
   The section of this Act amending 2023 Iowa Acts, chapter 108, section 7, subsection 4, relating to health facilities.
    Sec. 24.  RETROACTIVE APPLICABILITY.  The following applies retroactively to July 1, 2023:
   The section of this Act amending 2023 Iowa Acts, chapter 108, section 7, subsection 4, relating to health facilities.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill provides for oversight for long-term care facilities (facilities).
   The bill creates a long-term care facility safety council (safety council) under the department of inspections, appeals, and licensing (DIAL) to: determine and approve standards, including those relating to health and safety, for long-term care facilities; conduct informal conferences and reviews of health care facility applicants and licensees that have been issued three or more class I violations (a violation which presents an imminent danger or a substantial probability of death or physical harm to the residents of the facility in which the violation occurs) within a 12-month period for which a penalty was assessed, and of assisted living program applicants or certificate holders that have been issued notice of three violations in a 12-month period which presented imminent danger or a substantial probability of resultant death or physical harm to a tenant and for which a penalty was assessed, and make recommendations to DIAL for departmental action; review and make recommendations to DIAL regarding violations and penalties; make recommendations to DIAL regarding the adoption or amendment of administrative rules; review the operation of long-term care facilities for which the department has referred a complaint received by the department to the office of long-term care ombudsman; receive recommendations from the state long-term care ombudsman and submit an annual report to the general assembly with recommendations for changes in law to better protect residents and tenants, and a summary of recommendations made by long-term care facilities in informal conferences. The voting members of the safety council include the director of health and human services, or the director’s designee; the state long-term care ombudsman, or the ombudsman’s designee; the director of an area agency on aging, or the director’s designee; the state director of AARP, or the state director’s designee; and three public members, appointed by the governor, and subject to confirmation by the senate. The safety council also includes the director of DIAL, or the director’s designee as a nonvoting member. The members shall annually elect a public member as the chairperson of the council. The safety council shall hold an organizational meeting in July each year and hold other meetings as necessary to enable the safety council to expeditiously discharge its duties.
   The bill provides that at the time DIAL serves notice on an applicant or licensee of a health care facility for denial, suspension, or revocation of a license, because the health care facility has been issued three or more class I violations within a 12-month period for which a penalty was assessed, DIAL shall also notify the safety council. The safety council shall hold an informal conference with the applicant or licensee within 10 working days of the mailing or service of notice to review the applicant’s or licensee’s history of violations for which a penalty was assessed, and the response by the applicant or licensee in correcting such violations. Following the informal conference and review, the council shall report its findings to DIAL including recommendations for departmental action, in accordance with which DIAL shall proceed. A facility may subsequently request a formal hearing.
   The bill also requires that at the time DIAL effects delivery of notice on an assisted living program applicant or certificate holder, based on the assisted living program having been issued notice of three violations in a 12-month period which presented imminent danger or a substantial probability of resultant death or physical harm to a tenant, and for which a penalty was assessed, DIAL shall also notify the long-term care facility safety council. As with health care facilities, the safety council shall hold an informal conference with the applicant or certificate holder within 10 working days of the mailing or service of notice to review the applicant’s or certificate holder’s history of violations for which a penalty was assessed, and the response by the applicant or certificate holder in correcting such violations. Following the informal conference and review, the safety council shall report its findings to DIAL, including any recommendations for departmental action, with which DIAL shall proceed. An assisted living program may subsequently request a contested case hearing.
   The bill also requires DIAL to adopt and enforce administrative rules that set minimum standards for facilities with the approval of the safety council, rather than the approval of the council on health and human services. Additionally, the rules and standards must be formulated in consultation with the state long-term care ombudsman.
   The bill requires that the administrative rules and standards to be adopted and enforced by DIAL as part of the rule relating to equipment essential to the health and welfare of the resident, require that a facility that receives state funding annually adopt and provide to the department the facility’s policies regarding competitive procurement for supplies and equipment including transactions and associated reimbursement structures with any related party. Additionally, the rules and standards shall include policies and procedures regarding the use of arbitration agreements. Specifically, the rules shall prohibit any facility that accepts state funding from offering a resident, or requiring a resident to sign, an arbitration agreement that limits the resident’s inalienable right to seek full judicial review of a dispute as a precondition for being admitted to the facility.
   The bill increases the monetary amount for the bottom of the range of the penalty for a class I violation by a health care facility from $2,000 to $5,000, and maintains the upper part of the range at $10,000. The bill also increases the penalty for repeated class I violations in a 12-month period for which a penalty is assessed by quadrupling rather than tripling the amount.
   The bill adds as a class I violation for a health care facility any confirmed instance of a facility retaliating against a resident or employee for filing a complaint or otherwise cooperating with the department or the office of long-term care ombudsman.
   The bill provides that a member of the general assembly or an employee of the legislative or executive branch shall not attempt to influence a decision of DIAL during the course of an investigation, inspection, or appeal. An allegation of a violation shall be investigated by the office of ombudsman. If the office of ombudsman determines a violation has occurred, the office shall report the recommendations, including disciplinary action, to an agency. A person who is recommended for disciplinary action for a violation is subject to a civil penalty of up to $5,000 per violation. A civil penalty collected shall be credited to DIAL, considered repayment receipts, and used by DIAL to enforce Code chapter 135C. DIAL shall assess the civil penalty for violations committed by an employee of the executive branch, and a civil penalty for violations committed by a member or employee of the general assembly shall be assessed pursuant to a resolution or by the legislative council if the general assembly is not in session at the time a recommendation is received from the office of ombudsman.
   The bill requires the long-term care facility safety council to study the feasibility of creating a special focus list for long-term care facilities in the state based on a review of special focus lists in other states, and to submit a report to the general assembly by February 1, 2025, including specific descriptions of successful special focus lists in other states, and recommendations for the creation of a special focus list in Iowa including necessary Code changes and the potential framework for the special focus list.
   The bill requires that, on average, DIAL perform at least one general unannounced inspection of a health care facility within a 12-month period not to exceed a period of 15 months, rather than the current 30-month period.
   The bill amends the required time period within which DIAL must respond upon receipt of a complaint. Under the bill, for nursing facilities, an on-site inspection shall be initiated within one working day rather than the current two working days for a complaint determined by DIAL to be an alleged immediate jeopardy situation; and within five rather than the current 10 working days for a complaint determined by DIAL to be an alleged high-level, nonimmediate jeopardy situation. Under the bill for all other types of health care facilities, an on-site inspection shall be initiated within one working day rather than two working days for a complaint determined by DIAL to be an alleged immediate jeopardy situation; and within five working days rather than 20 working days for a complaint determined by DIAL to be an alleged high-level, nonimmediate jeopardy situation.
   The bill includes, as a duty of the state long-term care ombudsman, making recommendations to the long-term care facility safety council.
   The bill amends the appropriation for FY 2023-2024 to DIAL for health facilities to provide for an increase of $1.4 million and 30.0 additional full-time equivalent positions. Of the total appropriation, $2.4 million is to be used for additional nursing facility inspectors and assisted living program monitors to perform additional safety inspections. This provision takes effect upon enactment and is retroactively applicable to July 1, 2023.
   The bill appropriates funds from the general fund of the state to the office of long-term care ombudsman for FY 2024-2025 to be used to increase the number of local long-term care ombudsmen. The funding appropriated is in addition to any other funds appropriated from the general fund of the state and any other full-time equivalent positions authorized for local long-term care ombudsmen during the same fiscal year. The funding shall be used to support local ombudsmen in fulfilling their required duties including to provide the resources necessary to complete site visits and to carry out other duties to protect and improve the health, safety, welfare, and rights of residents and tenants.