December 15, 2011, Introduced by Senator HANSEN and referred to the Committee on Families, Seniors and Human Services.
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending section 20155 (MCL 333.20155), as amended by 2006 PA
195, and by adding section 20155a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 20155. (1) Except as otherwise provided in this section
and section 20155a, the department shall make annual and other
visits to each health facility or agency licensed under this
article for the purposes of survey, evaluation, and consultation. A
visit
made pursuant according to a complaint shall be unannounced.
Except for a county medical care facility, a home for the aged, a
nursing home, or a hospice residence, the department shall
determine
whether the visits that are not made pursuant according
to a complaint are announced or unannounced. Beginning June 20,
2001,
the department shall assure ensure
that each newly hired
nursing home surveyor, as part of his or her basic training, is
assigned
full-time to a licensed nursing home for at least 10 days
within
a 14-day period 2 separate
nursing facilities that have
different demographic profiles for at least 2 ten-day rotations to
observe actual operations outside of the survey process before the
trainee begins oversight responsibilities.
(2) The state shall establish a process that ensures all of
the following:
(a) A newly hired nursing home surveyor does not assume
oversight responsibility during his or her training period.
(b) An observation made by the newly hired nursing home
surveyor during the training period is not the sole basis of a
deficiency citation against the nursing home.
(c) A nursing home surveyor shall not be assigned as a member
of a survey team for a nursing home in which he or she received
training for 2 standard surveys following the training received in
that nursing home.
(3) Beginning July 1, 2012, the department shall perform a
criminal history check on all nursing home surveyors in the manner
provided for in section 20173a.
(4) A member of a survey team shall not be employed by a
licensed nursing home or a nursing home management company doing
business in this state at the time of conducting a survey under
this section. The department shall not assign an individual to be a
member of a survey team for purposes of a survey, evaluation, or
consultation visit at a nursing home in which he or she was an
employee within the preceding 5 years.
(5) Representatives from all nursing facility provider
organizations shall participate in the planning process for the
joint provider and surveyor training sessions. The department shall
include at least 1 representative from nursing facility provider
organizations representing at least 30 or more facilities statewide
in all routine surveyor training sessions with the intent to
clarify regulatory policy, procedures, guidelines, and applications
for survey performance.
(6) The department shall make available online the general
civil service position description related to the required
qualifications for individual surveyors. The department shall use
the required qualifications to hire, educate, develop, and evaluate
surveyors.
(7) The department shall ensure that at least 1 registered
nurse is a member of each survey team, and that additional survey
team members include a variation of qualified health professionals,
including, but not limited to, social workers, therapists,
dietitians, pharmacists, administrators, physicians, sanitarians,
and others, who have the expertise necessary to evaluate specific
aspects of nursing home operation.
(8) (2)
The Except as otherwise provided
in this section and
section 20155a, the department shall make at least a biennial visit
to each licensed clinical laboratory, each nursing home, and each
hospice residence for the purposes of survey, evaluation, and
consultation. The department shall semiannually provide for joint
training with nursing home surveyors and providers on at least 1 of
the 10 most frequently issued federal citations in this state
during the past calendar year. The department shall develop a
protocol for the review of citation patterns compared to regional
outcomes and standards and complaints regarding the nursing home
survey process. The review will result in a report provided
annually to the legislature. Except as otherwise provided in this
subsection, beginning with his or her first full relicensure period
after June 20, 2000, each member of a department nursing home
survey team who is a health professional licensee under article 15
shall earn not less than 50% of his or her required continuing
education credits, if any, in geriatric care. If a member of a
nursing home survey team is a pharmacist licensed under article 15,
he or she shall earn not less than 30% of his or her required
continuing education credits in geriatric care.
(9) (3)
The department shall make a
biennial visit to each
hospital for survey and evaluation for the purpose of licensure.
Subject
to subsection (6) (12), the department may waive the
biennial visit required by this subsection if a hospital, as part
of a timely application for license renewal, requests a waiver and
submits
both of the following and if all both of the requirements
of
subsection (5) (11) are met:
(a) Evidence that it is currently fully accredited by a body
with expertise in hospital accreditation whose hospital
accreditations are accepted by the United States department of
health and human services for purposes of section 1865 of part C of
title XVIII of the social security act, 42 USC 1395bb.
(b) A copy of the most recent accreditation report for the
hospital issued by a body described in subdivision (a), and the
hospital's responses to the accreditation report.
(10) (4)
Except as provided in subsection (8)
(14),
accreditation information provided to the department under
subsection
(3) (9) is confidential, is not a public record, and is
not subject to court subpoena. The department shall use the
accreditation information only as provided in this section and
shall return the accreditation information to the hospital within a
reasonable time after a decision on the waiver request is made.
(11) (5)
The department shall grant a waiver
under subsection
(3)
(9) if the accreditation report submitted under
subsection
(3)(b)
(9)(b) is less than 2 years old and there is no indication
of substantial noncompliance with licensure standards or of
deficiencies that represent a threat to public safety or patient
care in the report, in complaints involving the hospital, or in any
other information available to the department. If the accreditation
report is 2 or more years old, the department may do 1 of the
following:
(a) Grant an extension of the hospital's current license until
the next accreditation survey is completed by the body described in
subsection
(3)(a).(9)(a).
(b)
Grant a waiver under subsection (3) (9) based on the
accreditation report that is 2 or more years old, on condition that
the hospital promptly submit the next accreditation report to the
department.
(c) Deny the waiver request and conduct the visits required
under
subsection (3).(9).
(12) (6)
This section does not prohibit the
department from
citing a violation of this part during a survey, conducting
investigations
or inspections pursuant according
to section 20156,
or conducting surveys of health facilities or agencies for the
purpose of complaint investigations or federal certification. This
section does not prohibit the bureau of fire services created in
section 1b of the fire prevention code, 1941 PA 207, MCL 29.1b,
from conducting annual surveys of hospitals, nursing homes, and
county medical care facilities.
(13) (7)
At the request of a health facility
or agency, the
department may conduct a consultation engineering survey of a
health facility and provide professional advice and consultation
regarding health facility construction and design. A health
facility or agency may request a voluntary consultation survey
under this subsection at any time between licensure surveys. The
fees for a consultation engineering survey are the same as the fees
established for waivers under section 20161(10).
(14) (8)
If the department determines that
substantial
noncompliance with licensure standards exists or that deficiencies
that represent a threat to public safety or patient care exist
based
on a review of an accreditation report submitted pursuant to
under
subsection (3)(b) (9)(b),
the department shall prepare a
written summary of the substantial noncompliance or deficiencies
and the hospital's response to the department's determination. The
department's written summary and the hospital's response are public
documents.
(15) (9)
The department or a local health
department shall
conduct investigations or inspections, other than inspections of
financial records, of a county medical care facility, home for the
aged, nursing home, or hospice residence without prior notice to
the health facility or agency. An employee of a state agency
charged with investigating or inspecting the health facility or
agency or an employee of a local health department who directly or
indirectly gives prior notice regarding an investigation or an
inspection, other than an inspection of the financial records, to
the health facility or agency or to an employee of the health
facility or agency, is guilty of a misdemeanor. Consultation visits
that are not for the purpose of annual or follow-up inspection or
survey may be announced.
(16) (10)
The department shall maintain a
record indicating
whether a visit and inspection is announced or unannounced.
Information
Survey findings gathered at each
health facility or
agency during each visit and inspection, whether announced or
unannounced, shall be taken into account in licensure decisions.
(17) (11)
The department shall require
periodic reports and a
health facility or agency shall give the department access to
books, records, and other documents maintained by a health facility
or agency to the extent necessary to carry out the purpose of this
article and the rules promulgated under this article. The
department
shall respect the confidentiality of a patient's
clinical
record and shall not divulge or
disclose the contents of
the patient's clinical records in a manner that identifies an
individual except under court order. The department may copy health
facility or agency records as required to document findings. The
department shall work with the nursing facility provider
organizations to identify and train surveyors on the most
frequently used electronic medical records software.
(18) (12)
The department may delegate survey,
evaluation, or
consultation functions to another state agency or to a local health
department qualified to perform those functions. However, the
department shall not delegate survey, evaluation, or consultation
functions to a local health department that owns or operates a
hospice or hospice residence licensed under this article. The
delegation shall be by cost reimbursement contract between the
department and the state agency or local health department. Survey,
evaluation, or consultation functions shall not be delegated to
nongovernmental agencies, except as provided in this section. The
department may accept voluntary inspections performed by an
accrediting body with expertise in clinical laboratory
accreditation under part 205 if the accrediting body utilizes forms
acceptable to the department, applies the same licensing standards
as applied to other clinical laboratories, and provides the same
information and data usually filed by the department's own
employees when engaged in similar inspections or surveys. The
voluntary inspection described in this subsection shall be agreed
upon by both the licensee and the department.
(19) (13)
If, upon investigation, the
department or a state
agency determines that an individual licensed to practice a
profession in this state has violated the applicable licensure
statute or the rules promulgated under that statute, the
department, state agency, or local health department shall forward
the evidence it has to the appropriate licensing agency.
(20) (14)
The department shall report to the
appropriations
subcommittees, the senate and house of representatives standing
committees having jurisdiction over issues involving senior
citizens, and the fiscal agencies on March 1 of each year on the
initial and follow-up surveys conducted on all nursing homes in
this state. The report shall include all of the following
information:
(a) The number of surveys conducted.
(b) The number requiring follow-up surveys.
(c)
The number referred to the Michigan public health
institute
peer review organization for remediation.
(d) The average number of citations per nursing home for the
most recent calendar year.
(e) The number of night and weekend complaints filed.
(f) The number of night and weekend responses to complaints
conducted by the department.
(g) The average length of time for the department to respond
to a complaint filed against a nursing home.
(h) The number and percentage of citations appealed.
(i) The number and percentage of citations overturned or
modified, or both.
(j) Information regarding the progress made on implementing
the administrative and electronic support structure to efficiently
coordinate all nursing facility licensing and certification
functions.
(k) The number of annual standard surveys of nursing
facilities that were conducted during a period of open survey or
enforcement cycle.
(l) The number of abbreviated complaint surveys that were not
conducted on consecutive days.
(m) The percent of all form CMS-2567 reports of findings that
were released to the nursing facility within the 10-working-day
requirement.
(n) The percent of provider notifications of acceptance or
rejection of a plan of correction that were released to the nursing
facility within the 10-working-day requirement.
(o) The percent of first revisits that were completed within
60 days from the date of survey completion.
(p) The percent of second revisits that were completed within
85 days from the date of survey completion.
(q) The percent of letters of compliance notification to the
nursing facility that were released within 10 working days of the
date of the completion of the revisit.
(r) A summary of the discussions from the meetings required in
subsection (22).
(21) (15)
The department shall report
annually to the standing
committees on appropriations and the standing committees having
jurisdiction over issues involving senior citizens in the senate
and
the house of representatives on the all of the following:
(a) The percentage of nursing home citations that are
appealed. and
the
(b) The percentage of nursing home citations that are appealed
and amended through the informal deficiency dispute resolution
process.
(c) A summary of the quality assurance review of the amended
citations and related survey retraining efforts to improve
consistency among surveyors and across the survey administrative
unit that occurred in the year being reported.
(16)
Subject to subsection (17), a clarification work group
comprised
of the department in consultation with a nursing home
resident
or a member of a nursing home resident's family, nursing
home
provider groups, the American medical directors association,
the
state long-term care ombudsman, and the federal centers for
medicare
and medicaid services shall clarify the following terms as
those
terms are used in title XVIII and title XIX and applied by
the
department to provide more consistent regulation of nursing
homes
in Michigan:
(a)
Immediate jeopardy.
(b)
Harm.
(c)
Potential harm.
(d)
Avoidable.
(e)
Unavoidable.
(17)
All of the following clarifications developed under
subsection
(16) apply for purposes of subsection (16):
(a)
Specifically, the term "immediate jeopardy" means a
situation
in which immediate corrective action is necessary because
the
nursing home's noncompliance with 1 or more requirements of
participation
has caused or is likely to cause serious injury,
harm,
impairment, or death to a resident receiving care in a
nursing
home.
(b)
The likelihood of immediate jeopardy is reasonably higher
if
there is evidence of a flagrant failure by the nursing home to
comply
with a clinical process guideline adopted under subsection
(18)
than if the nursing home has substantially and continuously
complied
with those guidelines. If federal regulations and
guidelines
are not clear, and if the clinical process guidelines
have
been recognized, a process failure giving rise to an immediate
jeopardy
may involve an egregious widespread or repeated process
failure
and the absence of reasonable efforts to detect and prevent
the
process failure.
(c)
In determining whether or not there is immediate jeopardy,
the
survey agency should consider at least all of the following:
(i) Whether the nursing home could reasonably have
been
expected
to know about the deficient practice and to stop it, but
did
not stop the deficient practice.
(ii) Whether the nursing home could reasonably have
been
expected
to identify the deficient practice and to correct it, but
did
not correct the deficient practice.
(iii) Whether the nursing home could reasonably have
been
expected
to anticipate that serious injury, serious harm,
impairment,
or death might result from continuing the deficient
practice,
but did not so anticipate.
(iv) Whether the nursing home could reasonably have
been
expected
to know that a widely accepted high-risk practice is or
could
be problematic, but did not know.
(v) Whether the nursing home could reasonably have
been
expected
to detect the process problem in a more timely fashion,
but
did not so detect.
(d)
The existence of 1 or more of the factors described in
subdivision
(c), and especially the existence of 3 or more of those
factors
simultaneously, may lead to a conclusion that the situation
is
one in which the nursing home's practice makes adverse events
likely
to occur if immediate intervention is not undertaken, and
therefore
constitutes immediate jeopardy. If none of the factors
described
in subdivision (c) is present, the situation may involve
harm
or potential harm that is not immediate jeopardy.
(e)
Specifically, "actual harm" means a negative outcome to a
resident
that has compromised the resident's ability to maintain or
reach,
or both, his or her highest practicable physical, mental,
and
psychosocial well-being as defined by an accurate and
comprehensive
resident assessment, plan of care, and provision of
services.
Harm does not include a deficient practice that only may
cause
or has caused limited consequences to the resident.
(f)
For purposes of subdivision (e), in determining whether a
negative
outcome is of limited consequence, if the "state
operations
manual" or "the guidance to surveyors" published by the
federal
centers for medicare and medicaid services does not provide
specific
guidance, the department may consider whether most people
in
similar circumstances would feel that the damage was of such
short
duration or impact as to be inconsequential or trivial. In
such
a case, the consequence of a negative outcome may be
considered
more limited if it occurs in the context of overall
procedural
consistency with an accepted clinical process guideline
adopted
pursuant to subsection (18), as compared to a substantial
inconsistency
with or variance from the guideline.
(g)
For purposes of subdivision (e), if the publications
described
in subdivision (f) do not provide specific guidance, the
department
may consider the degree of a nursing home's adherence to
a
clinical process guideline adopted pursuant to subsection (18) in
considering
whether the degree of compromise and future risk to the
resident
constitutes actual harm. The risk of significant
compromise
to the resident may be considered greater in the context
of
substantial deviation from the guidelines than in the case of
overall
adherence.
(h)
To improve consistency and to avoid disputes over
avoidable
and unavoidable negative outcomes, nursing homes and
survey
agencies must have a common understanding of accepted
process
guidelines and of the circumstances under which it can
reasonably
be said that certain actions or inactions will lead to
avoidable
negative outcomes. If the "state operations manual" or
"the
guidance to surveyors" published by the federal centers for
medicare
and medicaid services is not specific, a nursing home's
overall
documentation of adherence to a clinical process guideline
with
a process indicator adopted pursuant to subsection (18) is
relevant
information in considering whether a negative outcome was
avoidable
or unavoidable and may be considered in the application
of
that term.
(22) The department shall meet quarterly with at least 1
representative from each nursing facility provider organization
representing 30 or more nursing homes statewide to discuss, at a
minimum, all of the following:
(a) Opportunities for enhanced promotion of nursing facility
performance, including, but not limited to, programs that encourage
and reward providers that strive for excellence.
(b) Seeking quality improvement to the survey and enforcement
process, including clarifications to process-related policies and
protocols that include, but are not limited to, all of the
following:
(i) Improving the surveyors' quality and preparedness.
(ii) Enhanced communication between regulators, surveyors, and
providers.
(iii) Ensuring fair enforcement and dispute resolution by
identifying methods or strategies that may resolve identified
problems or concerns.
(c) Promoting transparency across provider and surveyor
communities, including, but not limited to, all of the following:
(i) Applying regulations in a consistent manner and evaluating
changes that have been implemented to resolve identified problems
and concerns.
(ii) Providing consumers with meaningful information.
(iii) Identifying positive and negative trends, and factors
contributing to those trends, in the areas of resident care,
deficient practices, and enforcement.
(23) (18)
Subject to subsection (19) (25),
the department , in
consultation
with the clarification work group appointed under
subsection
(16), shall develop and adopt
clinical process
guidelines. that
shall be used in applying the terms set forth in
subsection
(16). The department shall
establish and adopt clinical
process guidelines and compliance protocols with outcome measures
for all of the following areas and for other topics where the
department determines that clarification will benefit providers and
consumers of long-term care:
(a) Bed rails.
(b) Adverse drug effects.
(c) Falls.
(d) Pressure sores.
(e) Nutrition and hydration including, but not limited to,
heat-related stress.
(f) Pain management.
(g) Depression and depression pharmacotherapy.
(h) Heart failure.
(i) Urinary incontinence.
(j) Dementia.
(k) Osteoporosis.
(l) Altered mental states.
(m) Physical and chemical restraints.
(24) The department shall biennially review and update all
clinical process guidelines as needed and shall continue to develop
and implement clinical process guidelines for topics that have not
been developed from the list in subsection (23) and other topics
identified as a result of the meetings required in subsection (22).
The department shall include training on new and revised clinical
process guidelines in the joint provider and surveyor training
sessions as those clinical process guidelines are developed and
revised.
(25)
(19) The department shall create a clinical advisory
committee to review and make recommendations regarding the clinical
process guidelines with outcome measures adopted under subsection
(18)
(23).
Beginning July 1, 2012, representatives from each
nursing facility provider organization representing 30 or more
facilities statewide shall be permanent members of the clinical
advisory committee created under this subsection. The department
shall appoint physicians, registered professional nurses, and
licensed practical nurses to the clinical advisory committee, along
with professionals who have expertise in long-term care services,
some of whom may be employed by long-term care facilities based on
the
expertise required for each content area.
The clarification
work
group created Beginning July
1, 2012, the department shall
appoint representatives from each nursing facility provider
organizations as permanent members of the clinical advisory
committee.
At the quarterly meetings required under
subsection (16)
(22), the department and the representatives from the nursing
facility provider organizations representing 30 or more facilities
statewide shall review the new and revised clinical process
guidelines
and outcome measures after the clinical advisory
committee
and shall make to make the final recommendations to the
department before the clinical process guidelines are adopted.
(26) (20)
The department shall create a maintain the process
by which the director of the division of nursing home monitoring or
his or her designee or the director of the division of operations
or his or her designee reviews and authorizes the issuance of a
citation for immediate jeopardy or substandard quality of care
before the statement of deficiencies is made final. The review
shall be to assure that the applicable concepts, clinical process
guidelines,
and other tools contained in subsections (17) to (19)
(23) to (25) are being used consistently, accurately, and
effectively. As used in this subsection, "immediate jeopardy" and
"substandard quality of care" mean those terms as defined by the
federal centers for medicare and medicaid services.
(27) (21)
The Upon availability of
funds, the department may
shall give grants, awards, or other recognition to nursing homes to
encourage the rapid implementation or maintenance of the clinical
process
guidelines adopted under subsection (18).(23).
(28) (22)
The department shall assess the effectiveness of
2001
PA 218. The department shall file
an annual report with
ongoing analysis on the implementation of the clinical process
guidelines and the impact of the guidelines on resident care with
the standing committee in the legislature with jurisdiction over
matters
pertaining to nursing homes. The first report shall be
filed
on July 1, 2002.
(29) (23)
The department shall instruct and
train the
surveyors
in the use of the clarifications described in subsection
(17)
and the clinical process guidelines
adopted under subsection
(18)
(23) in citing deficiencies.
(30) (24)
A nursing home shall post the
nursing home's survey
report in a conspicuous place within the nursing home for public
review.
(31) (25)
Nothing in this amendatory act
shall be construed to
limit the requirements of related state and federal law.
(32) (26)
As used in this section:
(a) "Consecutive days" means calendar days and includes
Saturday, Sunday, and state- and federally-recognized holidays.
(b) "Form CMS-2567" means the federal centers for medicare and
medicaid services' form for the statement of deficiencies and plan
of correction or a successor form serving the same purpose.
(c) (a)
"Title XVIII" means title
XVIII of the social security
act, 42 USC 1395 to 1395hhh.
(d) (b)
"Title XIX" means title
XIX of the social security
act,
chapter 531, 42 USC 1396 to 1396v.1396w-2.
Sec. 20155a. (1) Nursing home health survey tasks shall be
facilitated by 1 administrative unit of the licensing and
regulatory affairs bureau of health systems to ensure consistent
and efficient coordination of the nursing home licensing and
certification functions for standard and abbreviated surveys. The
department shall develop and implement an electronic system to
support coordination of these activities by December 31, 2013.
(2) When scheduling annual standard surveys, the department
shall avoid overlap with any other open survey and enforcement
cycle by closing out any open enforcement cycle before starting an
annual standard survey while maintaining the federal requirement
for standard survey interval.
(3) A high-performing nursing facility means any nursing
facility for which all surveys conducted in the previous 2
consecutive standard survey cycles has not had a survey deficiency
citation above level 2. High-performing nursing facilities are
eligible to receive a grant, up to $5,000.00 per nursing facility
each 2 consecutive standard survey cycle periods, from the civil
monetary fund to be used for participation in a recognized quality
improvement program.
(4) Special focus facilities shall be surveyed every 6 months.
The department shall expand use of the special focus facility
designation as described in the centers for medicare and medicaid
services' survey and certification memorandum #10-32-NH to assist
special focus facilities with achieving and maintaining substantial
compliance with federal performance requirements.
(5) All abbreviated complaint surveys shall be conducted on
consecutive days until complete. All form CMS-2567 reports of
survey findings shall be released to the nursing facility within 10
working days after completion of the survey.
(6) Departmental notifications of acceptance or rejection of a
nursing facility's plan of correction shall be reviewed and
released to the nursing facility within 10 working days of receipt
of that plan of correction.
(7) All survey first revisits shall be conducted not more than
60 days after the date of completion of the survey, and all second
revisits shall be conducted not more than 85 days after the date of
completion of the survey.
(8) Letters of compliance notification to nursing facilities
shall be released to the nursing facility within 10 working days of
all survey revisit completion dates.
(9) The department shall accept a nursing facility's evidence
of substantial compliance instead of requiring a postsurvey revisit
as the department considers is appropriate. A desk review may be
made available depending on the scope and severity assessment of
the deficiency. If there are no deficiencies contested with a scope
and severity assessment higher than level 2 and if there is no
enforcement action, the nursing facility's evidence of substantial
compliance shall be conducted as an office review of deficiencies
and of written information submitted by the nursing facility.
(10) Enforcement penalties selected for imposition or applied
in any nursing facility, as a result of findings directly related
to a nursing facility-reported incident, shall be at the lowest
level allowed under federal certification enforcement protocols.
(11) Informal dispute resolution conducted by the Michigan
peer review organization shall be given strong consideration upon
final review by the department. In the annual report to the
legislature, the department shall include the number of Michigan
peer review organization-referred reviews and, of those reviews,
the number of citations that were overturned by the department.
(12) As used in this section:
(a) "Desk review" means administrative review by the
department in lieu of an on-site revisit.
(b) "Level 1 citation" and "level 2 citation" mean those terms
as defined by the centers for medicare and medicaid services'
survey protocol grid defining scope and severity assessment of
deficiency.