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What’s new? Hot Topics for Housing Providers
LEADING AGE DISTRICT MEETINGSJANUARY 2016
APRIL J. BOXETH KELSEY S. NELSONVOIGT, RODE & BOXETH VOIGT, RODE & BOXETH2550 UNIVERSITY AVE. W., STE. 190S 2550 UNIVERSITY AVE. W., STE. 190SST. PAUL, MN 55114 ST. PAUL, MN 55114651-209-6161 651-209-6161
OVERVIEW –PROVIDER CONCERNS
• Elderly Waiver and Rent• Tenant Rights/Landlord Rights
• Home Care Client/Provider Rights• Vulnerable Adult Reporting• Survey• Bed rails• Granny cams• Other issues?
ELDERLY WAIVER AND RENT
• Services• Rent• How does it work?• Termination?
TENANT AND LANDLORD LAWHOME CARE CLIENT RIGHTS AND PROVIDER REQUIREMENTSLaws Impacting HWS and Home Care Providers• MN landlord-tenant law
• Nondiscrimination laws• §504 of the Rehabilitation Act• Fair Housing Amendments Act• Americans with Disabilities Act• Minnesota Human Rights Act
TENANT AND LANDLORD LAWHOME CARE CLIENT RIGHTS AND PROVIDER REQUIREMENTSLaws Impacting HWS and Home Care Providers• MN Stat. §144D (housing with services)• MN Stat. §144A (home care)• Nurse Practice Act (MN Stat. §148.171 to §148.285)• Dementia Care (§§ 144D.10, 144A.45)• Consumer Protection Laws• Landlord and Tenant law (MN Stat. Chapter 504B)
• Provides rights and requirements of each
TENANT/HOME CARE CLIENT LAW/RIGHTS AND LANDLORD/PROVIDER LAW/RIGHTS
Landlord/Tenant law governed by MN StatutesOmbudsman concerns regarding housing providers:
• Private pay up front, then lease termination• EW-eligible tenants – limited number of apartments• Requirement to move to smaller apartment• Fees• Immediate termination of services for behavioral issues• Smaller facility owners don’t know the law• Landlord termination/eviction of tenant
VULNERABLE ADULT REPORTING
Federal law does not apply to assisted living facilitiesMN law defines a mandated reporter:
Includes a professional while engaged in the care of vulnerable adults, so it applies to you.
(Minn. Stat. § 626.557)
MN Elder Justice Act also applies to HWS/AL.
VULNERABLE ADULT REPORTING
• Minnesota Adult Abuse Reporting Center (MAARC)
• MAARC’s toll-free number, 844-880-1574• Mandated reporter to call to report
suspected maltreatment of vulnerable adults (abuse, neglect, financial exploitation)
VULNERABLE ADULT REPORTING• Is it a use, neglect or misappropriation of property?
• Is it an injury of unknown source?
• If YES, report immediately
Immediately means as soon as possible but not longer than 24 hours
• MDH’s interpretation of the state definition is “AS SOON AS POSSIBLE”
• Elder Justice Act requires a report to local law enforcement agency if a suspicion of a crime within:• 2 hours of forming a suspicion if here is serious bodily injury• 24 hours of forming a suspicion if no serious bodily injury
• MAARC’s toll-free number, 844-880-1574
• Mandated reporter to call to report suspected maltreatment of vulnerable adults (abuse, neglect, financial exploitation)
INVESTIGATIONS AND REPORTING• IMMEDIATELY!!!
• Internally to Director
• Externally:
• MAARC/State
• VA/AP
• Local Law Enforcement
• Family
• Physician
• Ombudsman?
Surveillance Cameras• Cameras in tenant apartments versus cameras in common areas
• Purpose of the camera?• Supporters say one thing• Providers say another
Minnesota Consent Law• Minnesota is a “one-party consent” state, which
means that staff and visitors do not need to consent to the recording or have notice of the recording so long as one person to the recording consents.
• Minn. Stat. § 626A.02, subd.2(d)“It is not unlawful under this chapter for a person not acting under color of law to intercept a wire, electronic, or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or of any state.”
Minnesota Consent law• Home care client needs to consent
• Or legal representative
• Need Roommate’s consent
• Even if surveillance not “pointed at” roommate, potential to record audio or visual--- key is one party to the recording needs to give consent.
• Written consent/acknowledgement is best
Criminal Penalties• A person is guilty of a gross misdemeanor if the person:
• (1) “surreptitiously installs or uses any device for observing, photographing, recording, amplifying, or broadcasting sounds or events . . .[in a] place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts . . . or the clothing covering the immediate area of the intimate parts; and
• (2) does so with the intent to intrude upon or interfere with the privacy of the occupant.
Minn. Stat. § 609.746, subd. 1 (d).
What can you do if client DOES consent?• Determine reasons for surveillance
• Issues of neglect, abuse or financial exploitation?• Talk to client and family about concerns• Highlight Vulnerable Adult Abuse Prevention policies and reporting
requirements• Remind client of grievance/complaint forms
• Ask what they are doing with recordings
• Ask to view recordings• No right to do so on your own because it is not your property
• May need to do investigation and VA report if theft/abuse/neglect
What if client does NOT consent?
• Remove camera if client does not consent• Camera is not your property so must give it
to person who placed it there
• Possible report to police because of violation of MN criminal statute (see previous slide)
• VA Report for possible abuse
HIPAA Compliance• “Covered entities” face direct liability for the acts of any
member of their workforce that are inconsistent with the data privacy and security regulations issued under HIPAA.
• Facility should generally not provide, install, or maintain a camera for inside a tenant/resident’s room • There may be very unique situations where a facility
would want to do this (and therefore control its disclosures, use, etc.)
• May consider a policy prohibiting camera use inside a room or apartment if double occupancy• Must be careful of tenant rights• Tough to enforce, especially if you don’t know it is there
Camera Use Policy Recommendations
If you decide to allow camera use in an apartment:• Broadly define “electronic monitoring” to incorporate tapes,
recordings, camera (with or without audio), and phone recordings.
• Have a client or guardian request camera use- do not provide/install/pay for the camera.
• Obtain written consent of client and roommate.• Define who will own the recordings- if it is the client’s camera
and you do not have access, then it is his/her information!• If it is the facility’s camera, information may become protected
health information.
Employee Privacy Issues• The National Labor Relations Board (NLRB) has ruled
that installation and use of hidden surveillance cameras is a mandatory subject of bargaining.• May affect working environment, security and discipline
• For Facilities with Employee Unions, review terms of Collective Bargaining Agreement (CBA) on surveillance• Are you required to notify employees of surveillance?
• What are your obligations to employees when you learn a tenant has installed a camera?• May decide to notify on case-by-case basis if not obligated by a CBA
WHAT DO THE SURVEYORS SAY?HOME CARE SURVEY OUTCOMES – TOP 10
1/1/15 THROUGH 12/31/15• Basic:
1. TB Prevention and Control• 144A.4798 Subd 1
2. Individual Abuse Prevention Plan• 144A.4793, Subd 3
3. Contents of Service Plan• 144A.4791, Subd 7
4. Contents of Client Record• 144A.4794, Subd 3
5. Employee Records• 144A.479, Sub 7
WHAT DO THE SURVEYORS SAY?HOME CARE SURVEY OUTCOMES – TOP 10
1/1/15 THROUGH 12/31/15• Basic:
6. Quality Management• 144A.479, Subd 3
7. Statement of Home Care Services• 144A.4791, Subd 3
8. Basic Individualized Client Review/Monitoring• 144A.4791.Subd 7
9. Home Care Bill of Rights Notification to Client• 144A.4791, Subd 1
10. Client Complaint and Investigative Process• 144A.4791, Subd 11
WHAT DO THE SURVEYORS SAY?HOME CARE SURVEY OUTCOMES – TOP 10
1/1/15 THROUGH 12/31/15• Comprehensive:1. TB Prevention and Control - 144A.4798 Subd 1
2. Contents of Service Plan - 144A.4791, Subd 7
3. Up to Date Plan /Accepted Standards of Practice• 144.44, Subd 1 (1)
4. Comprehensive Assessment and Monitoring• 144A. 4791, Subd 8
5. Provision of Medication Management Services• 144A.4792. Subd 2
WHAT DO THE SURVEYORS SAY?HOME CARE SURVEY OUTCOMES – TOP 10
1/1/15 THROUGH 12/31/15• Comprehensive:
6. Documentation of Administration of Medication• 144A.4792, Subd 8
7. Employee Records• 144A.479, Subd 7
8. Individualized Treatment /Therapy Management Plan• 144A.4793, Subd 3
9. Individual Abuse Prevention Plan - 144A.4793, Subd 3
10. Statement of Home Care Services - 144A.4791, Subd 3
SIDE RAILS
• Side rails need careful management• Widely used to reduce risks of falls but…appropriate?• Who installs them and did you receive notice?
SIDE RAILS
• Risks identified in survey investigations• trapping between poorly fitting mattresses and
bedrails• rolling over the top of the bedrails• trapping between the bedrail and mattress,
headboard or other parts because of poor bedrailpositioning
• Widely used to reduce risks of falls
SIDE RAILS
• US Department of Health & Human ServicesGuide to Bed Rail use in Hospitals and NursingHomes• http://www.fda.gov/MedicalDevices/Product
sandMedicalProcedures/GeneralHospitalDevicesandSupplies/HospitalBeds/ucm123676.htm
GENERAL TOPICS
• Security Deposits• Mental health issues • Home care client’s needs exceed care provided
QUESTIONS?
What’s new? Hot Topics for Housing Providers
LEADING AGE DISTRICT MEETINGSJANUARY 2016
APRIL J. BOXETH KELSEY S. NELSONVOIGT, RODE & BOXETH VOIGT, RODE & BOXETH2550 UNIVERSITY AVE. W., STE. 190S 2550 UNIVERSITY AVE. W., STE. 190SST. PAUL, MN 55114 ST. PAUL, MN 55114651-209-6161 651-209-6161
