Elder care advocates and some lawmakers are supporting a “far-reaching” bill introduced in the Minnesota legislature that would increase state oversight of assisted living communities. But industry representatives say the proposed legislation runs counter to groundbreaking licensure laws achieved through a collaborative process involving many layers of stakeholders.

Minnesota is the only state in the country that does not license assisted living providers, but a law was passed in 2019 to change that. Some elements of the law already have gone into effect, and the licensure aspects were to take effect in August 2021.

In the wake of the COVID-19 pandemic’s impact on long-term care facilities — including deaths, lack of access to personal protective equipment and testing, staffing and reporting — SF 36 proposes several requirements for assisted living communities, including establishing detailed plans for responding to acute respiratory viruses (such as COVID-19), modifying electronic monitoring requirements, creating a statewide task force and establishing a private cause of action that would allow civil lawsuits against facilities.

Kari Thurlow, LeadingAge Minnesota senior vice president for advocacy, said the organization supported passage of comprehensive, “generational” regulatory changes — the Elder Care and Vulnerable Adult Protection Act of 2019 — set to take effect in August 2021, that established assisted living licensure. The process, she said, involved consumer advocates, various state agencies and stakeholders, and it had strong bipartisan support. 

“We believe we took great strides last year and are really proud of that island of support and continued implementation of that work,” Thurlow told McKnight’s Senior Living. Several portions of the proposed legislation, she added, try to modify last year’s legislation or even circumvent the rulemaking process now underway.

Patti Cullen, president and CEO of Care Providers of Minnesota, told McKnight’s Senior Living that the “groundbreaking” assisted living licensure law passed in 2019 included many consumer protections but also “kept a balance so providers could operationalize the new requirements and expectations of them.”

“Prior to the pandemic, which changed everyone’s focus, we were also working in collaboration with these same parties on the rulemaking process for those outstanding issues that were not detailed enough in the legislation,” Cullen said. “SF 36 includes several of the provisions of the 2019 assisted licensure law that were ultimately not approved by the coalition, and also some provisions that are part of the rulemaking discussions. 

“We would hope to be able to continue our collaborative rulemaking work that we started rather than take steps back in our discussions, as SF 36 would lead us.”

Thurlow said the proposed legislation includes an amendment to the rulemaking process that changes some important considerations of carefully negotiated language, including requirements for staffing ratios, and introduces proposals deliberately left out of last year’s legislation, including regulations tied to independent senior housing — “an entirely different scenario from assisted living.”

“To explicitly introduce and require a ratio is something that assumes the solution without going through the collaborative rulemaking process,” Thurlow said.

Other sections of the bill, Cullen said, add new COVID-19 infection control standards and reporting.

“We have spent the past four months clearly focused on infection control and transparency in reporting COVID-19 cases very successfully and would note that our key issues right now in the fight against COVID-19 in our settings are a sustainable, ongoing testing program and access to proper PPE,” Cullen said.

The proposed legislation also introduces private right of action for nursing homes and assisted living communities, which would allow civil lawsuits for enforcing a bill of rights — something specifically negotiated and excluded from last year’s agreement.

“We know there are concerns with ensuring seniors have access to safe, quality care, especially during this time of COVID-19. We recognize the pandemic had an unprecedented impact on the vulnerable seniors we serve,” Thurlow said. “Our focus right now is to ensure implementation of historic legislation and ensure it is done right and through an accurate and transparent process but also to continue to work every day with our members on infection control and clear communication with families.”

Cullen agreed.

“We believe that the collaborative approach used in passage of assisted living licensure in 2019 provided the balanced approach needed to make significant changes in our assisted living communities and look forward to continuing down this path,” she said.