SB-0938, As Passed Senate, August 13, 2014

SUBSTITUTE FOR

SENATE BILL NO. 938

A bill to amend 1978 PA 368, entitled

"Public health code,"

by amending sections 20155, 21703, and 21734 (MCL 333.20155,

333.21703, and 333.21734), section 20155 as amended by 2012 PA 322

and section 21734 as added by 2000 PA 437.

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

The department shall make a visit ~~made~~ 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

according to a complaint are announced or unannounced. ~~Beginning~~

~~June 20, 2001, the~~ The department shall 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 to observe actual operations outside of

the survey process before the trainee begins oversight

responsibilities.

(2) The ~~state~~ department shall establish a process that

ensures both of the following:

(a) A newly hired nursing home surveyor ~~shall~~ does not make

independent compliance decisions during his or her training period.

(b) A nursing home surveyor ~~shall~~ is not be assigned as a

member of a survey team for a nursing home in which he or she

received training for 1 standard survey following the training

received in that nursing home.

(3) ~~Beginning November 1, 2012, the~~ 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~~ must 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 3 years.

(5) ~~Representatives~~ The department shall invite

representatives from all nursing home provider organizations and

the state long-term care ombudsman or his or her designee ~~shall be~~

~~invited~~ to participate in the planning process for the joint

provider and surveyor training sessions. The department shall

include at least 1 representative from nursing home provider

organizations that do not own or operate a nursing home

representing 30 or more nursing homes statewide in internal

surveyor group quality assurance training provided for the purpose

of general clarification and interpretation of existing or new

regulatory requirements and expectations.

(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 each annual survey team

is composed of an interdisciplinary group of professionals, 1 of

whom must be a registered nurse. Other members may include social

workers, therapists, dietitians, pharmacists, administrators,

physicians, sanitarians, and others who may have the expertise

necessary to evaluate specific aspects of nursing home operation.

(8) 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 department shall include the review ~~will be included~~ under this

subsection in the report required under subsection (20). 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) The department shall make a biennial visit to each

hospital for survey and evaluation for the purpose of licensure.

Subject to subsection (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 of the requirements of

subsection (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) Except as otherwise provided in subsection (14),

accreditation information provided to the department under

subsection (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) The department shall grant a waiver under subsection (9)

if the accreditation report submitted under subsection (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 (9)(a).

(b) Grant a waiver under subsection (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.

under subsection (9).

(12) This section does not prohibit the department from citing

a violation of this part during a survey, conducting investigations

or inspections 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) 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) 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 under

subsection (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) 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) The department shall maintain a record indicating whether

a visit and inspection is announced or unannounced. 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) 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 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.

Surveyors shall use electronic resident information, whenever

available, as a source of survey-related data and shall request

facility assistance to access the system to maximize data export.

(18) 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~~ department shall be delegate under this subsection by

cost reimbursement contract between the department and the state

agency or local health department. ~~Survey,~~ The department shall not

delegate 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~~ must be

agreed upon by both the licensee and the department.

(19) 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) The department may consolidate all information provided

for any report required under this section and section 20155a into

a single report. 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.

most recent calendar year.

(d) The number of night and weekend complaints filed.

(e) The number of night and weekend responses to complaints

conducted by the department.

(f) The average length of time for the department to respond

to a complaint filed against a nursing home.

(g) The number and percentage of citations disputed through

informal dispute resolution and independent informal dispute

resolution.

(h) The number and percentage of citations overturned or

modified, or both.

(i) The review of citation patterns developed under subsection

(8).

~~(j) Implementation of the clinical process guidelines and the~~

~~impact of the guidelines on resident care.~~

(j) ~~(k)~~ Information regarding the progress made on

implementing the administrative and electronic support structure to

efficiently coordinate all nursing home licensing and certification

functions.

(k) (l) The number of annual standard surveys of nursing homes

that were conducted during a period of open survey or enforcement

cycle.

(l) ~~(m)~~ The number of abbreviated complaint surveys that were

not conducted on consecutive surveyor workdays.

(m) ~~(n)~~ The percent of all form CMS-2567 reports of findings

that were released to the nursing home within the 10-working-day

requirement.

(n) ~~(o)~~ The percent of provider notifications of acceptance or

rejection of a plan of correction that were released to the nursing

home within the 10-working-day requirement.

(o) ~~(p)~~ The percent of first revisits that were completed

within 60 days from the date of survey completion.

(p) ~~(q)~~ The percent of second revisits that were completed

within 85 days from the date of survey completion.

(q) ~~(r)~~ The percent of letters of compliance notification to

the nursing home that were released within 10 working days of the

date of the completion of the revisit.

(r) ~~(s)~~ A summary of the discussions from the meetings

required in subsection (24).

(s) ~~(t)~~ The number of nursing homes that participated in a

recognized quality improvement program as described under section

20155a(3).

(21) The department shall report March 1 of each year 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 all of the following:

(a) The percentage of nursing home citations that are appealed

through the informal dispute resolution process.

(b) The number and percentage of nursing home citations that

are appealed and supported, amended, or deleted through the

informal dispute resolution process.

citations and related survey retraining efforts to improve

consistency among surveyors and across the survey administrative

unit that occurred in the year being reported.

(22) Subject to subsection (23), 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 this state:

(a) Immediate jeopardy.

(b) Harm.

(d) Avoidable.

(e) Unavoidable.

(23) All of the following clarifications developed under

subsection (22) apply for purposes of subsection (22):

(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 nationally recognized clinical process guideline

~~adopted under subsection (25)~~ than if the nursing home has

substantially and continuously complied with ~~those~~ nationally

recognized clinical process 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.

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~~ a nationally recognized

clinical process guideline, ~~adopted under subsection (25),~~ 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 nationally recognized clinical process guideline ~~adopted under~~

~~subsection (25)~~ 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 nationally recognized

clinical process guideline with a process indicator ~~adopted under~~

~~subsection (25)~~ is relevant information in considering whether a

negative outcome was avoidable or unavoidable and may be considered

in the application of that term.

(24) The department shall conduct a quarterly meeting and

invite appropriate stakeholders. ~~Appropriate stakeholders~~ The

department shall ~~include~~ invite as appropriate stakeholders under

this subsection at least 1 representative from each nursing home

provider organization that does not own or operate a nursing home

representing 30 or more nursing homes statewide, the state long-

term care ombudsman or his or her designee, and any other clinical

experts. Individuals who participate in these quarterly meetings,

~~in conjunction~~ jointly with the department, may designate advisory

workgroups to develop recommendations on the discussion topics that

should include, at a minimum, all of the following:

(a) Opportunities for enhanced promotion of nursing home

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,

providers, and consumers.

(iii) Ensuring fair enforcement and dispute resolution by

identifying methods or strategies that may resolve identified

problems or concerns.

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 information regarding changes in

policy and interpretation.

(iii) Identifying positive and negative trends and factors

contributing to those trends in the areas of resident care,

deficient practices, and enforcement.

(d) Clinical process guidelines.

(25) ~~Subject to subsection (27), the department~~ A nursing home

shall ~~develop and adopt clinical process guidelines. The department~~

~~shall establish and adopt~~ use evidence-based, nationally recognized

clinical process guidelines or best-practice resources to develop

and implement resident care policies 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:~~measurable

outcomes specifically in the following clinical practice areas:

(a) ~~Bed~~ Use of bed rails.

(b) Adverse drug effects.

(d) ~~Pressure sores.~~Prevention of pressure ulcers.

(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 care.

(k) Osteoporosis.

(l) Altered mental states.

(m) Physical and chemical restraints.

(n) ~~Culture-change~~ Person-centered care principles. ~~, person-~~

~~centered caring, and self-directed care.~~

(26) In an area of clinical practice that is not listed in

subsection (25), a nursing home may use evidence-based, nationally

recognized clinical process guidelines or best-practice resources

to develop and implement resident care policies and compliance

protocols with measurable outcomes to promote performance

excellence.

(27) ~~(26) 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 (25) and other~~

~~topics identified as a result of the meetings required in~~

~~subsection (24).~~ The department shall consider recommendations from

an advisory workgroup created under subsection (24). ~~on clinical~~

~~process guidelines.~~ The department ~~shall~~ may include training on

new and revised evidence-based, nationally recognized clinical

process guidelines or best-practice resources, which contain

measurable outcomes, in the joint provider and surveyor training

sessions ~~as those clinical process guidelines are developed and~~

~~revised.~~to assist provider efforts toward improved regulatory

compliance and performance excellence and to foster a common

understanding of accepted best-practice standards between providers

and the survey agency. The department shall post on its website all

evidence-based, nationally recognized clinical process guidelines

and best-practice resources used in a training session under this

subsection for provider, surveyor, and public reference.

(28) ~~(27) Beginning November 1, 2012, representatives~~

Representatives from each nursing home provider organization that

does not own or operate a nursing home representing 30 or more

nursing homes statewide and the state long-term care ombudsman or

his or her designee ~~shall be~~ are permanent members of ~~any~~ a

clinical advisory workgroup created under subsection (24). The

department shall issue survey certification memorandums to

providers to announce or clarify changes in the interpretation of

regulations.

(29) ~~(28)~~ The department shall maintain the process by which

the director of the long-term care 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~~ must assure ~~that the applicable concepts,~~

~~clinical process guidelines, and other tools contained in~~

~~subsections (25) to (27) are being used consistently, accurately,~~

~~and effectively.~~ the consistent and accurate application of federal

and state survey protocols and defined regulatory standards. 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.

(30) ~~(29)~~ Upon availability of funds, the department shall

give grants, awards, or other recognition to nursing homes to

encourage the rapid development and implementation ~~or maintenance~~

of ~~the~~ resident care policies and compliance protocols that are

created from evidence-based, nationally recognized clinical process

guidelines ~~adopted under subsection (25).~~or best-practice resources

with measurable outcomes to promote performance excellence.

(31) ~~(30) The department shall instruct and train the~~

~~surveyors in the~~ Surveyors shall consider evidence-based,

nationally recognized clinical process guidelines ~~adopted under~~

~~subsection (25) in citing deficiencies.~~or best-practice resources

with measurable outcomes that are used by a nursing home to develop

and implement resident care policies and compliance protocols when

making compliance decisions under this section.

(32) ~~(31)~~ A nursing home shall post the nursing home's survey

report in a conspicuous place within the nursing home for public

review.

(33) ~~(32) Nothing in this amendatory act shall be construed to~~

2001 PA 218 does not limit the requirements of related state and

federal law.

(34) ~~(33)~~ As used in this section:

(a) "Consecutive days" means calendar days, but does not

include Saturday, Sunday, or state- or 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.

act, 42 USC 1395 to 1395kkk.

(d) "Title XIX" means title XIX of the social security act, 42

USC 1396 to 1396w-5.

Sec. 21703. (1) "Patient" means a ~~person who receives care or~~

~~services at a nursing home.~~resident.

(2) "Patient's representative" or "resident's representative"

means a person, other than the licensee or an employee or person

having a direct or indirect ownership interest in the nursing home,

designated in writing by a ~~patient~~ resident or a ~~patient's~~

resident's guardian for a specific, limited purpose or for general

purposes, or, if a written designation of a representative is not

made, the guardian of the ~~patient.~~resident.

(3) "Relocation" means the movement of a ~~patient~~ resident from

1 bed to another or from 1 room to another within the same nursing

home or within a certified distinct part of a nursing home.

(4) "Resident" means an individual who receives care or

services at a nursing home.

(5) ~~(4)~~ "Transfer" means the movement of a ~~patient~~ resident

from 1 nursing home to another nursing home or from 1 certified

distinct part of a nursing home to another certified distinct part

of the same nursing home.

(6) ~~(5)~~ "Welfare" means, with reference to a ~~patient,~~

resident, the physical, emotional, or social well-being of a

~~patient~~ resident in a nursing home, including a ~~patient~~ resident

awaiting transfer or discharge, as documented in the ~~patient's~~

resident's clinical record by a licensed or certified health care

professional.

Sec. 21734. (1) Notwithstanding section 20201(2)(l), a nursing

home shall give each resident who uses a hospital-type bed or the

resident's legal guardian, patient advocate, or other legal

representative the option of having bed rails. A nursing home shall

offer the option to new residents upon admission and to other

residents upon request. Upon receipt of a request for bed rails,

the nursing home shall inform the resident or the resident's legal

guardian, patient advocate, or other legal representative of

alternatives to and the risks involved in using bed rails. A

resident or the resident's legal guardian, patient advocate, or

other legal representative has the right to request and consent to

bed rails for the resident. A nursing home shall provide bed rails

to a resident only upon receipt of a signed consent form

authorizing bed rail use and a written order from the resident's

attending physician that contains statements and determinations

regarding medical symptoms and that specifies the circumstances

under which bed rails are to be used. For purposes of this

subsection, "medical symptoms" includes the following:

(a) A concern for the physical safety of the resident.

(b) Physical or psychological need expressed by a resident. A

resident's fear of falling may be the basis of a medical symptom.

(2) A nursing home that provides bed rails under subsection

(1) shall do all of the following:

(a) Document that the requirements of subsection (1) have been

met.

(b) Monitor the resident's use of the bed rails.

resident's attending physician, and individual who consented to the

bed rails, periodically reevaluate the resident's need for the bed

rails.

(3) The department ~~of consumer and industry services~~ shall

~~develop~~ maintain clear and uniform ~~guidelines~~ best-practice

protocols to be used in determining what constitutes each of the

following:

(a) Acceptable bed rails for use in a nursing home in this

state. The department shall consider the recommendations of the

hospital bed safety work group established by the United States

food and drug administration, if those are available, in

determining what constitutes an acceptable bed rail.

(b) Proper maintenance of bed rails.

(d) Other hazards created by improperly positioned bed rails,

mattresses, or beds.

(4) The department ~~of consumer and industry services~~ shall

~~develop the guidelines~~ maintain the best-practice protocols under

subsection (3) in consultation with the long-term care stakeholders

work group established under section 20155(24). ~~An individual~~

~~representing manufacturers of bed rails, 2 residents or family~~

~~members, and an individual with expertise in bed rail installation~~

~~and use shall be added to the long-term care work group for~~

~~purposes of this subsection. The department shall consider as part~~

~~of its report to the legislature the recommendations of the~~

~~hospital bed safety work group established by the United States~~

~~food and drug administration, if those recommendations are~~

~~available at the time of the submission of the report. Not later~~

~~than 6 months after the effective date of the amendatory act that~~

~~added this section, the department of consumer and industry~~

~~services shall submit its report to the legislature. The department~~

~~may delay submission of its report by up to 3 months so that its~~

~~report may reflect the recommendations of the hospital bed safety~~

~~work group established by the United States food and drug~~

~~administration.~~

(5) A nursing home that complies with subsections (1) and (2)

and the ~~guidelines developed~~ protocols maintained under this

section in providing bed rails to a resident is not subject to

administrative penalties imposed by the department based solely on

providing the bed rails. ~~Nothing in this~~ This subsection ~~precludes~~

does not preclude the department from citing specific state or

federal deficiencies for improperly maintained bed rails,

improperly fitted mattresses, or other hazards created by

improperly positioned bed rails, mattresses, or beds.

~~(6) The department of consumer and industry services shall~~

~~consult with representatives of the nursing home industry to~~

~~expeditiously develop interim guidelines on bed rail usage that are~~

~~to be used until the department develops the guidelines required~~