February 2020, Volume XXXIII, No 11

  Legislation

The Elder Care and Vulnerable Adult Protection Act

Ensuring the safety of older Minnesotans

n 2019 the Minnesota Legislature and Gov. Tim Walz passed bipartisan legislation, the Elder Care and Vulnerable Adult Protection Act, to license assisted living facilities and enact elder care protections. Many stakeholders, including advocates for older adults and providers, united after spending over 100 hours negotiating bill language.

Safe and healthy environments

The decision to move an aging relative into a facility where they can receive more frequent and professional care is a difficult one for every family. Older adults deserve the peace of mind that they will live with dignity in a safe and healthy environment and be able to trust those providing services every day. The highest standards for care should be a universal expectation.

Unfortunately, in 2017, some egregious breaches of this trust came to light which warranted immediate attention from state regulatory officials and lawmakers. Unthinkable instances of maltreatment had been occurring in nursing homes and assisted living facilities, in some cases with little or no follow-through. Deep problems were soon discovered within the Minnesota Department of Health’s Office of Health Facility Complaints which impacted its ability to thoroughly investigate claims of wrongdoing. Families, consumer advocates, and members of the media sounded the alarm about the need for policymakers to act.

A new commissioner of health, Jan Malcolm, quickly prioritized the issue and was able to eliminate a staggering backlog of 3,000 unaddressed complaints of maltreatment. Under her leadership, the department also modernized systems and hired new staff with the experience and training to follow through. While these corrective steps were important, long-term fixes were necessary to address systemic issues preventing too many seniors from living safe, healthy lives.

A cornerstone of our bipartisan legislation created an Assisted Living Bill of Rights.

The path to legislation

Then-Gov. Mark Dayton quickly pulled together a taskforce—led by AARP Minnesota—which developed strong consumer-focused recommendations for the 2018 Legislature to consider. To the detriment of Minnesota seniors, only weak half measures emerged, leaving a great deal of work left to do. In 2019, following the previous November’s election which resulted in a new DFL majority in the Minnesota House, I was honored to become chair of the House Long Term Care Division, and was wholly committed to developing a comprehensive package of elder care reforms. I’m proud that we were able to bring all stakeholders together in a divided Legislature to enact groundbreaking legislation—of which I was the chief author with Sen. Karin Housley—which strengthens safety for our parents and grandparents living in nursing homes and assisted living facilities.

It is intolerable and traumatic for any resident to experience reprehensible behavior such as abuse, neglect, theft, or assault at the hands of the very individuals entrusted to provide care. Such a situation is made even worse when the resident and their family lack clarity regarding their rights as they seek accountability and attempt to move forward.

A cornerstone of our bipartisan legislation created an Assisted Living Bill of Rights, which, in plain language, lays out the rights and recourse residents have if they are violated. The statute establishes numerous safeguards residents can expect, including:

  • Appropriate care and services
  • The right to participate in care and service planning
  • Freedom from maltreatment
  • Privacy and confidentiality protections
  • The right to counsel and advocacy services
  • The ability to make a complaint without limitation

Lawmakers heard from residents and their families who had been fearful of retaliation for making a complaint. Retaliation against residents can take many forms, including eviction; seclusion; withholding food, care, or other services; or restrictions on the use of amenities or living arrangements. Our legislation creates strong protections against retaliation within nursing homes and assisted living facilities, and defines steps for the Department of Health to take when investigating an accusation of retaliation.

Regulatory measures

Prior to this legislation, Minnesota had been the only state in the nation that had not mandated licensure of assisted living facilities. While these businesses operate in a significantly different fashion from nursing homes, they also often deliver complex types of care, and some framework of guardrails was overdue to ensure resident safety. We recognized this by creating two separate classifications in our licensure framework: one for facilities providing extensive care, including dementia and memory care, and another for those providing basic care to older adults. The new licensure also resulted in background checks required for staff and administrators as an added safeguard. Facilities have plenty of time to prepare for these changes, which take effect on August 1, 2021.

Having peace of mind is beneficial for family members, but having first-hand knowledge that their loved one is comfortable can be even better. When family members suspect negligence or abuse, they often advocate to place a camera inside a resident’s room to monitor them electronically. Previously, nursing homes and assisted living facilities could prohibit the use of an electronic monitoring device for any reason. Particularly in instances when residents fear retaliation, this can be deeply concerning. Our legislation removed this prohibition and now allows residents to place a monitoring device in their personal living area if they provide notice to the facility within 14 days. Alternatively, they can file a report with the Minnesota Adult Abuse Reporting Center. This provision became effective on Jan. 1 of this year.

Minnesota had been the only state in the nation that had not mandated licensure of assisted living facilities.

New tools for consumers

While a resident may experience abuse, neglect, assault, or theft within a facility, sometimes wrongdoing occurs even before a family seeks out an assisted living facility or nursing home for a loved one to enter. Too often in their marketing materials, facilities exaggerate the level of services they provide, including promises to provide specific care they aren’t able to deliver. Sometimes this is a mistake or a result of miscommunication; for instance, a staff member not fully understanding the type of care a potential resident may need. Other times, however, deliberate, deceptive marketing practices are used which can put a resident and their family on the hook for thousands of dollars. In our legislation, we require a full and clear explanation of services and all the associated costs prior to a resident being admitted to the facility.

As people get older, the type of care they need can change quickly. There have been instances of a facility determining they can no longer meet the needs of a resident, and subsequently taking the drastic step of evicting them. To prevent this, our legislation contains a “soft landing” provision, which requires a transition outline with advanced assessment, planning, and notification to ensure the resident can locate a suitable replacement location.

Many facilities work with outside providers to provide specialized services and care. Previously there was no requirement for a person at a facility to oversee a resident’s care plan. This can lead to oversights and mistakes, especially when a resident is working with many different care providers. Our legislation requires facilities to designate a single individual to provide oversight of care plans to ensure residents aren’t on their own in keeping track of the care they receive.

Challenges and hope

The legislation, which we enacted on a bipartisan basis last session, will leave a lasting impact as we work to strengthen protections for older adults. Reaching consensus not just on concepts, but on actual language for an entire new section of law was not easy. Additionally, lawmakers invested $30 million over two years to make these new systems operational.

Still, there are significant challenges facing us as we work to ensure our elders can maintain a strong quality of life in their later years. Pressure in the labor market will result in continued difficulty to recruit and retain qualified workers to provide care, both in care facilities and in home-based settings.

In Minnesota, demographics are quickly changing. There are now more Minnesotans age 65 or older than there are children under the age of 18. Older adults have unique needs and our state and local communities will face ongoing challenges regarding health care, housing, transportation, and other critical services.

Our 2019 elder care legislation can serve as an example for future Legislatures and Governors as a blueprint to craft complex legislation. While input from all parties involved was meaningful, I truly worked to put the perspectives of residents and their families first. Our legislation reflects this and I’m confident these reforms will help ensure Minnesota seniors can live with the dignity they deserve.

I thank the following organizations for their work on passing this important legislation: AARP Minnesota, Elder Voice Family Advocates, Mid-Minnesota Legal Aid, Minnesota Elder Justice Center, Alzheimer’s Association, Office of the Ombudsman for Long-Term Care, Minnesota Department of Health, Leading Age Minnesota, and Care Providers of Minnesota.

Jennifer Schultz, PhD, MA, represents District 7A—the eastern portion of Duluth—in the Minnesota House of Representatives and serves as chair of the House Long Term Care Division. Outside the Legislature, she is a professor of health care economics at the University of Minnesota–Duluth. She earned her MA in economics from Washington State University and her PhD in economics and health services research from the University of Minnesota. 

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Jennifer Schultz, PhD, MA, represents District 7A—the eastern portion of Duluth—in the Minnesota House of Representatives and serves as chair of the House Long Term Care Division. Outside the Legislature, she is a professor of health care economics at the University of Minnesota–Duluth. She earned her MA in economics from Washington State University and her PhD in economics and health services research from the University of Minnesota.