SURVEY & ENFORCEMENT PROCESS

L A L D

ICENSED SSISTED IVING IRECTOR

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Doug Beardsley, LNHA, LALD, Vice President of Member Services Care Providers of Minnesota

Doug Beardsley has been involved in the field of long-term care since 1982, when he became a nursing home administrator. Mr. Beardsley has a Bachelor of Science degree in healthcare administration from the University of Wisconsin–EauClaire. His experience includes 20 years as a nursing home administrator, three years as a long-term acute care hospital CEO, manager of an inhouse LTC pharmacy, and other long-term care related activities. Mr. Beardsley has been the vice president of member services with Care Providers of Minnesota since 2005, where he is responsible for the regulatory activities pertaining to nursing facilities, home care, assisted living, and hospice.

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• Surveys and enforcement are part of being regulated and licensed.

• Surveyors/Evaluators/Investigators want the same things providers want –safe and regulatory compliant assisted living facilities with satisfied staff and residents.

• A Licensed Assisted Living Director’s most important tool is to fully understand the regulations the licensed facility operates under. Knowledge of the requirements provides a path to the creation of systems that result in regulatory compliance.

• Think of surveys as your routine external consultant visit –use the information gained as a means to improve your assisted living facility.

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4 The Minnesota Department of Health (MDH) is the exclusive state agency charged with the responsibility and duty of surveying and investigating Minnesota’s licensed assisted living facilities.

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• An assisted living who receives a provisional license(meaning a brand-new provider) must have an initial surveywithin one yearof the provisional license issue date.

• Once a fullassisted living licenseis given (after a successful provisional licenseesurvey),licensed assisted living facilitieswill be surveyedat least once everytwo years.

• For all new licenses after a Change of Ownership (CHOW), the facility must be surveyed within six monthsafter the new license is issued.

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Change of Ownership (CHOW) Within SIX Months after new license is issued Provisional License Within ONE Year after new license is issued Full License At least every TWO Years

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• Although MDH has deadlines when surveys must be scheduled, all surveys are unannounced. You will not be notified in advance to schedule your survey!

• Once a surveyor enters the assisted living to conduct a survey, the survey must continue until concluded. Key staff missing due to vacations or illness will not result in a survey being “rescheduled”.

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• Surveys are intended to determine compliance with:

• 144G –Minnesota’s Assisted Living Statutes

• If dementia licensed, includes dementia specific requirements • Chapter 4659 –Minnesota’s Assisted Living Rules

• Including CMS Appendix Z –Emergency Preparedness Requirements • If dementia licensed, includes dementia specific requirements • Chapter 4626 –Minnesota Food Code • For new construction or any provisional license with six or more residents or substantial remodeling:

• NFPA Life Safety Code101 –Residential Board and Care Occupancies Chapter • Facility Guidelines Institute“Guidelines for Design and Construction of Residential Health, Care and Support Facilities

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• Surveys will generally be conducted bya State Evaluations Team:

• MDH Nurse evaluators/surveyors, & • MDH Health Care Engineers (who look at building and safety issues) • At times may have MDH Environmental Health to assist with MN Food Code review

• Surveys have traditionally lasted between 2-4 days. The length of time the survey takesand the number of evaluators on site depends on:

• Number of residents in the assisted living • Number of residents receiving assisted living services in the assisted living • Number of locations (if a campus setting) • Intensity of health-related services provided by the assisted living • Building size and design • Scope of regulatory problems identified during the survey • Preparedness of the assisted living provider!

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Entrance Conference Kitchen Inspection Document Review (AL contract, Emergency Preparedness, etc.) Complete Survey Process or Continue with Follow-up Surveys

Some on-site survey tasks may be conducted in a different order

Building Tour

Observations of Residents and Staff

Building Inspection by Engineer

Interview Staff Review of Employee Files

Review of Resident Files Follow-up Survey

AL Implements Changes Based on Licensing Orders

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Medication Administration Observation Interview Residents Exit Conference Receive 2567 Survey Form Listing Correction Orders

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• Like it or not, the entrance conferencesets the tone of the survey.

• It will become apparent very quickly to the surveyor/evaluator whether you are prepared or not.

• You will be provided with a list of “things” to produce for the surveyor/evaluator, some are needed within one hour, others are needed within two hours, etc.

• If you are not prepared to efficiently produce these documents in a timely manner, it will not be a good start to the survey!

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• Lesson #1…Know what the surveyors will be asking for. Have systems in place to produce them accurately and timely. Have a back-up person that also knows how to produce these items…you may not be there when they show up! • Lesson #2…Have a survey readiness binder. Many of the materials can be prepared in advance or updated quickly. This makes everyone’s job easier! • Lesson #3…Use the MDH survey forms to help be prepared and conduct selfaudits using the same tools the surveyors will use. Survey forms can be downloaded here:

https://www.health.state.mn.us/facilities/regulation/assistedliving/survey.html

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• At the conclusion of the onsite survey a surveyor will ask to speak with key staff –most likely the Licensed Assisted Living Director and the Clinical Nurse Supervisor. You are welcome to have others attend if time and space permits.

• The surveyor will provide a draft list of potential correction orders that are being considered as a result of the onsite survey This list could be expanded or shortened up upon review once the surveyor is offsite.

• You will have a short period of time to send in additional documentation if you disagree with any of these initial determinations, for example a form was missed. Once the final survey form is released, the only way to get a correction order changed is through a reconsideration (more on that later).

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• A form used by the Federal government to survey certified health care facilities –it was never intended to be used by States for assisted living surveys. • That being said, Minnesota currently uses the 2567 form to document correction orders resulting from assisted living surveys and investigations. • Half of the form is left blank, as it is intended for the certified facility to enter their correction plan in the space and submit for approval. But assisted living facilities do not need to submit plans of correction so half of every page is just blank.

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• Assisted living statutes require MDH to provide the 2567 form to the facility within 30 days after the survey exit.

• Providers should not just wait until they receive the survey results form; they should begin conducting root cause analysis and action improvement plans on the issues that were identified on the draft survey exit form as soon as the exit conference is concluded!

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• The 2567 form provides the facility with the following information:

• Lists a Scope and Level for each correction order

• Identifies specific statute or rule where non-compliance was identified • Lists the requirement • Provides examples of deficient practice observed or identified

• Provides a date/deadline where compliance is expected

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Level 1 A violation that has no potential to cause more than a minimal impact on the resident and does not affect health or safety

Level 2

A violation that did not harm a resident's health or safety but had the potential to have harmed a resident's health or safety, but was not likely to cause serious injury, impairment, or death Level 3 A violation that harmed a resident's health or safety, not including serious injury, impairment, or death, or a violation that has the potential to lead to serious injury, impairment, or death Level 4 A violation that results in serious injury, impairment, or death

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Isolated When one or a limited number of residents are affected or one or a limited number of staff are involved, or the situation has occurred only occasionally Pattern When more than a limited number of residents are affected, more than a limited number of staff are involved, or the situation has occurred repeatedly but is not found to be pervasive Widespread When problems are pervasive or represent a systemic failure that has affected or has the potential to affect a large portion or all of the residents

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Level 4 J K L

Level 3 G H I

Level 2 D E F

Level 1 A B C

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The Level assigned to each correction order will determine if a fine is to be assessed and how large that fine will be:

• Level 1, no fines or enforcement • Level 2, a fine of $500 per violation* • Level 3, a fine of $3,000 per violation* • Level 4, a fine of $5,000 per violation* *Plus any enforcement actions available in the enforcement statutes (144G.20)for widespread violations

For every Level 3 or Level 4 violation, MDH may issue an immediate fine

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MDH must send 2567 (correction orders)

Provider has opportunity to request any reconsiderations after receipt of 2567 Provider has XX days to correct identified correction orders

MDH conducts follow-up survey for Level 3, Level 4, or widespread findings

Reconsideration must be Determined

PASS or FAIL

Start all over if FAIL (fines may double each fail)

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• Each correction order will identify how long the facility has to implement corrective actions that will result in compliance. These could be as short as “immediate” and as long as 21 days.

• When all plans of correction have been implemented by the facility, the facility must notify MDH. In general, this will be the date where the facility was provided the longest time period to take corrective action.

• Your plans of correction do not need to be submitted to MDH, nor do they need to be “approved” by MDH.

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• Assisted living providers should try to determine the root cause of what caused the non-compliance –rarely is “retraining” sufficient to correct system problems.

• Plans of correction should address the immediate situations identified in the 2567, but also implement system improvements that will hold over time.

• By the correction order date, the assisted living facility must documentwhat actions the facility implemented to comply with the correction order. MDH may ask for this documentation at the follow-up survey. Document what actions the facility implemented for each correction order received. The better the documentation, the quicker the follow-up survey will be.

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• Sometime between the longest date for correction given on the 2567 and 90 days after the survey exit date, MDH will come back to conduct a follow-up survey (sometimes referred to as a resurvey).

• Follow-up surveys are required to be conducted in person for any correction order issued at a Level 3 or 4. Lower level correction orders may be re-surveyed using phone, email, fax, etc. –but that decision is up to MDH, not the provider.

• The purpose of the follow-up survey is to determine if the facility has corrected deficient issues and systems identified during the survey.

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• Surveyors will determine if the actions taken for each correction order have satisfactorily met the regulatory requirements –or if continued noncompliance exists.

• While conducting follow-up surveys, evaluators/surveyors are able to cite additional correction orders based on their observations during the follow-up survey!

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• If everything looks “cleared” the survey cycle ends.

• If continued non-compliance is determined, or new correction orders are issued, the process continues.

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• Request for a Reconsideration

• Must be filed, in writing, within 15 calendar days of receipt of the 2567 form • Must be filed for each correction order the facility disagrees with

• Reconsiderations

• An MDH staff member not affiliated with the survey will review the reconsideration request, including any additional information provided by the facility • The reconsideration can be done via phone, in writing, or in-person • MDH has 60 days to respond in writing regarding the reconsideration decision

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• Reconsiderations can result in…

• No change to the correction order • Changes in accuracy of facts in the correction order • Change in accuracy of statute or rule referenced • Changes in Level or Scope of the correction order • Changes in fines assessed • Full removal of the correction order

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• Initial surveys for provisional licenses where substantial noncompliance is determined can result in the facility not receiving an assisted living license. • For established licenses, the following actions against a license are available to MDH:

• Fines • Conditions put on the licensed (conditional license) • Immediate temporary suspension of license • Suspension of license • Refusal to renew license • Revocation of license

• There are processes established if the licensee disagrees with MDH’s actions taken on the license

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• MDH has published a five-page summary of the survey process. It can be found here: https://www.health.state.mn.us/faciliti es/regulation/assistedliving/docs/surve yforms/p5019.pdf

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• In addition to the initial (provisional or CHOW) and every-two-year surveys, assisted living facilities may be investigated for noncompliance as a result of:

• Complaints of non-compliance received by the Office of Health Facility Complaints (OHFC)-also known as Rapid Response

• Facility reported incidents made by the facility to the Minnesota Adult Abuse Reporting Center (MAARC)

• Allegations of maltreatment (abuse, neglect, exploitation) received by MAARC or OHFC

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• Investigations are unannounced

• Investigations tend to be more focused on issues surrounding the complaint

• Investigators tend to be a bit more ”tight lipped” about what they are investigating

• Investigations can result in full-blown surveys if warranted

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• These investigations can result in:

• Correction orders for non-compliance with Assisted Living Statues and/or Rules

• Substantiated findings of maltreatment under the Minnesota Vulnerable Adults Act • Maltreatment findings can be issued against the Licensed Assisted Living

Facility, or • Maltreatment findings can be issued against individual staff employed (or previously employed) by the Licensed Assisted Living Facility, or • Both

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• Surveys and enforcement are part of being regulated and licensed.

• Surveyors/Evaluators/Investigators want the same things providers want –safe andregulatory compliant assisted living facilities with satisfied staff and residents.

• A Licensed Assisted Living Director’s most important tool is to fully understand theregulations the licensed facility operates under. Knowledge of the requirementsprovides a path tothe creation of systems that result in regulatory compliance.

• Think of surveys as your routine external consultant visit –use the information gainedas a means toimprove your assisted living facility.

CARE PROVIDERS OF MINNESOTA | Leading Members to Excellence | #CPMEducates