February 2, 2005, Introduced by Reps. Leland, Alma Smith, Tobocman, Gleason, McConico, Hunter, Gonzales, Brown, Kathleen Law, Bieda and Phillips and referred to the Committee on Senior Health, Security, and Retirement.
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending section 21720a (MCL 333.21720a).
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec.
21720a. (1) A The
department shall not license a
nursing
home shall not be licensed under this part unless that
the nursing home has on its staff at least 1 registered
professional nurse licensed under article 15 with specialized
training
or relevant experience in the area of gerontology, who
shall
serve serves
as the director of nursing. and who shall be
The director is responsible for planning and directing nursing
care.
The nursing home shall have at least 1 licensed nurse
registered professional nurse or licensed practical nurse licensed
under article 15 on duty at all times and shall employ additional
registered professional nurses and licensed practical nurses in
accordance
as necessary to comply with
subsection (2). This
subsection
shall not take effect until January 1, 1980.
(2)
A nursing home shall employ nursing personnel direct
patient care providers sufficient to provide continuous 24-hour
nursing care and services sufficient to meet the needs of each
patient
in the nursing home. Nursing personnel Direct patient
care providers employed in the nursing home shall be under the
supervision
of the director of nursing. A licensee shall maintain
a
nursing home staff sufficient to provide not less than 2.25 hours
of
nursing care by employed nursing care personnel per patient per
day.
The ratio of patients to nursing care personnel during a
morning
shift shall not exceed 8 patients to 1 nursing care
personnel;
the ratio of patients to nursing care personnel during
an
afternoon shift shall not exceed 12 patients to 1 nursing care
personnel;
and the ratio of patients to nursing care personnel
during
a nighttime shift shall not exceed 15 patients to 1 nursing
care
personnel and there shall be sufficient nursing care personnel
available
on duty to assure coverage for patients at all times
during
the shift. An employee designated as a member of the nursing
staff
shall not be engaged in providing basic services such as food
preparation,
housekeeping, laundry, or maintenance services, except
in
an instance of natural disaster or other emergency reported to
and
concurred in by the department. In a nursing home having 30 or
more
beds, the director of nursing shall not be included in
counting
the minimum ratios of nursing personnel required by this
subsection.
Subject to subsection (4) and except as otherwise
provided in subsection (5) or (8), a licensee shall maintain a
nursing home staff-to-patient ratio sufficient to provide not less
than 3.0 hours of direct patient care by a direct patient care
provider per patient per day. The staff-to-patient ratio required
under this subsection shall be computed on a 24-hour basis so that
at no time during the 24-hour period does the staff-to-patient
ratio fall below 1 direct patient care provider to 15 nursing home
patients.
(3)
In administering this section, the department shall take
into
consideration a natural disaster or other emergency.
(3) Except as otherwise provided in this subsection and
subsection (4), a nursing home shall not include an individual who
is not a direct patient care provider in computing the staff-to-
patient ratio and hours-per-patient-per-day requirement under
subsection (2). However, the nursing home may include such an
individual to provide some types of direct patient care, if the
nursing home provides the individual with the training required
under section 21795 for each type or element of direct patient care
provided. A nursing home may, for purposes of computing the staff-
to-patient ratio and hours-per-patient-per-day requirement under
subsection (2), include an individual who has completed the
applicable training required under title XVIII or title XIX, but
has not yet been tested as required under title XVIII and title
XIX, as long as not more than 120 days have elapsed since the
individual completed the training.
(4) In computing the staff-to-patient ratio and the hours-per-
patient-per-day requirement under subsection (2) during an
emergency, a nursing home may include a nursing home staff member
who is a registered professional nurse or a licensed practical
nurse licensed under article 15 and is not normally used in
computing the ratio and requirement because the staff member
performs primarily administrative functions, if the staff member
provides direct patient care during the emergency, but only for as
long as the emergency exists.
(5) For purposes of subsection (2), from October 1, 2005 to
April 1, 2006, a licensee shall assure that the number of hours of
direct patient care by a direct patient care provider per patient
per day in the nursing home is not less than 2.75. From April 2,
2006 to October 1, 2006, a licensee shall assure that the number of
hours of direct patient care by a direct patient care provider per
patient per day in the nursing home is not less than 2.85. After
October 1, 2006, a licensee shall assure that the number of hours
of direct patient care by a direct patient care provider per
patient per day in the nursing home is not less than 3.0.
(6) If a direct patient care provider performs duties other
than direct patient care during his or her shift, the nursing home
may count the number of direct patient care hours provided by the
direct patient care provider during the shift in computing
compliance with subsection (2) or subsection (5), or both. A
nursing home may use the time a direct patient care provider spends
in documenting the direct patient care that he or she provided in
computing compliance with subsection (2) or subsection (5), or
both.
(7) A direct patient care provider shall not provide services
other than direct patient care to patients in a nursing home,
including, but not limited to, food preparation, housekeeping,
laundry, and maintenance services, except in time of natural
disaster or other emergency circumstances that are reported to and
concurred in by the department. A nursing home may direct a nursing
home employee who is not qualified as a direct patient care
provider to provide direct patient care in time of natural disaster
or other emergency circumstances that are reported to and concurred
in by the department. A nursing home may count the hours of direct
patient care provided under this subsection in computing compliance
with subsection (2) or subsection (5), or both.
(8) Subject to subsection (9), if a nursing home's costs of
operation are increased as a result of its compliance with the
amendatory act that added this subsection, the nursing home may
advise the department in writing of the increased operational
costs. The nursing home may include in the written advisory a
request for reimbursement from the department for the increased
costs. Upon receipt of a written advisory from a nursing home under
this subsection that includes a request for reimbursement, the
department shall immediately adjust the nursing home's per diem
reimbursement under title XVIII in an amount sufficient to
reimburse the nursing home for the increased costs. The department
shall increase the nursing home's per diem reimbursement rate under
this subsection regardless of previously applied cost limits. If
the department fails to adjust a nursing home's per diem
reimbursement rate under this subsection within 30 days after
receiving a written advisory that includes a request for
reimbursement under this subsection, then all of the following
shall occur:
(a) The nursing home is exempt from the staff-to-patient
ratios and the hours-per-patient-per-day requirements of this
section until the department adjusts the nursing home's per diem
reimbursement rate under this subsection.
(b) The nursing home shall provide each patient with not less
than 2.25 hours of direct patient care by a direct patient care
provider and shall maintain the staff-to-patient ratio required
under this section before it was amended by the amendatory act that
added this subsection.
(c) Within 30 days after being notified by the department that
the nursing home's status has changed and that the nursing home
will be reimbursed at the appropriate level, the nursing home shall
return to the staff-to-patient ratio and the hours-per-patient-per-
day requirement required by the amendatory act that added this
subsection.
(9) Subsection (8) is not intended as a remedy that allows the
department to reimburse a nursing home at a rate that allows the
nursing home to maintain a nursing home staff-to-patient ratio that
is not sufficient to provide at least 3.0 hours of direct patient
care by a direct patient care provider per patient per day as
required under subsection (2). It is the intent of the legislature
that the department reimburse nursing homes under title XVIII in an
amount sufficient to maintain the staff-to-patient ratio and the
number of direct patient care hours per patient per day required
under subsection (2). If the department fails to adjust a nursing
home's reimbursement rate under subsection (8) within the 30-day
time period required under subsection (8), the department
immediately shall file a written report with the standing
appropriations committees of the senate and the house of
representatives and with the appropriate subcommittees. The
department shall include in the report its reasons for failing to
adjust the nursing home's reimbursement rate in compliance with
this section.
(10) The department shall determine whether a nursing home's
operational costs were actually increased as described in
subsection (8) during the department's audit of the nursing home's
annual cost report. If the department determines as a result of the
audit that the nursing home's costs were not in fact increased, the
department may retroactively disallow the increased costs claimed
by the nursing home in an amount equal to the amount of costs
determined by the department not to have been incurred by the
nursing home. A retroactive disallowance by the department under
this subsection is an "adverse action" as that term is defined in R
400.3401 of the Michigan administrative code and is subject to
appeal under R 400.3401 to R 400.3425 of the Michigan
administrative code.
(11) A nursing home may file with the department a petition
for temporary, emergency rate relief from the staff-to-patient
ratio and the direct patient care hours-per-patient-per-day
requirement of subsection (2) or the minimum hours of direct
patient care required under subsection (5), or both. The department
may grant the nursing home's petition for temporary, emergency rate
relief if the nursing home demonstrates to the satisfaction of the
department that the staff-to-patient ratio and the direct patient
care hours-per-patient-per-day requirement of subsection (2) or the
minimum number of hours of direct patient care required under
subsection (5), or both, has a substantial effect on the nursing
home's operating costs. The department shall issue a decision on a
petition filed under this subsection within 90 days after receipt
of the petition. If the department denies the petition, the
department shall provide the nursing home, in writing, with the
reasons for the denial. If the department fails to issue a decision
on a petition within the 90-day time limit, the petition is
granted.
(12) A nursing home may appeal a denial of a petition for
temporary, emergency rate relief under subsection (11). The
department shall hold a hearing on the appeal in accordance with
the administrative procedures act of 1969. The department shall
allow a representative of the nursing home to present information,
data, and other evidence in support of granting the petition under
subsection (11). The department or the department's designee shall
present the department's reasons for denying the petition. The
department shall issue a written decision on the appeal within 30
days after the hearing held under this subsection. The department
shall include in the written decision the reasons for denying the
appeal. A denial of an appeal by the department under this
subsection has the effect of creating an emergency under section
VII, entitled "exception procedure", of the policy and methods for
establishing payment rates in the state plan required under title
XIX.
(13) A nursing home may appeal an adverse decision under
subsection (12) to the circuit court for the county in which the
nursing home is located or the circuit court for Ingham county. If
the nursing home prevails on the appeal, the court may award
compensatory damages to the nursing home for the cost of providing
care to its residents during the period from the filing of a
petition with the department under subsection (11) to the decision
on the appeal under this subsection. The court may also award costs
to the nursing home if it prevails on the appeal.
(14) A nursing home shall post the name of the direct patient
care provider who is assigned to a particular patient either in a
conspicuous place near the nurses' station or outside the patient's
door near the patient's name.
(15) As used in this section:
(a) "Competency-evaluated nurse assistant" means a nurse's
aide or nurse assistant trained as required under section
1819(b)(5) of title XVIII of the social security act, 42 USC 1395i-
3, and under section 1919(b)(5) of title XIX of the social security
act, 42 USC 1396r.
(b) "Direct patient care" means 1 or more of the following
activities or services provided by a direct patient care provider
to a patient in a nursing home as required by the patient's care
plan:
(i) Personal care, including, but not limited to, all of the
following: bathing a patient while encouraging the patient's
independence; supportive and preventative skin care; routine
morning and evening mouth care; hair and nail care; shaving;
dressing and undressing, with emphasis on encouraging and
maintaining the patient's independence; assisting in the use of
prosthetic devices; and other matters of personal hygiene.
(ii) Nutrition, including, but not limited to, all of the
following: making mealtime a pleasant experience; measuring and
recording the patient's food intake; assisting the patient in
increasing or reducing fluid intake; assisting the patient in
eating, with emphasis on encouraging the patient's independence and
dignity.
(iii) Elimination, including, but not limited to, all of the
following: encouraging and maintaining the patient's independence
in toilet, bedpan, and urinal use; catheter care; preventing
incontinence; the prevention of constipation; perineal care;
measuring and recording bladder output; urine testing; and bowel
and bladder training.
(iv) Restoration and rehabilitation, including, but not limited
to, all of the following: assistance and encouragement with
ambulation, walking, and transferring from location to location or
from position to position; turning a patient; maintaining proper
body alignment; range of motion exercises; the use of ambulation
aids, such as wheelchairs, walkers, canes, and crutches; utilizing
transfer techniques and the proper body mechanics involved in
lifting a patient or an object; using bed boards, foot boards, foot
stools, trochanter rolls, pillows for positioning, and orthotic
devices.
(v) Feeding and clothing patients and making and changing
beds.
(vi) Administration of medications and treatments.
(vii) Other activities or services, or both, performed with or
for the direct patient care provider's assigned patient that
enhances that patient's quality of life.
(c) "Direct patient care provider" means an individual who is
a registered professional nurse licensed under article 15 or a
licensed practical nurse licensed under article 15 and whose
primary function is as a nurse, or an individual who is certified,
at a minimum, as a competency-evaluated nurse assistant, who is
employed by or under contract to a nursing home, and who provides
direct patient care in the nursing home. Direct patient care
provider does not include the following:
(i) The director of nursing for a nursing home.
(ii) A quality assurance nurse for a nursing home.
(iii) A staff development nurse for a nursing home.
(iv) A physical therapist licensed under article 15.
(v) A certified speech and language therapist.
(vi) An occupational therapist registered under article 15.
(vii) An activities director or activities staff.
(viii) An individual who is hired and paid privately by a
patient or the patient's family and who works only with that
patient.
(d) "Title XVIII" means title XVIII of the social security
act, 42 USC 1395 to 1395hhh.
(e) "Title XIX" means title XIX of the social security act, 42
USC 1396 to 1396v.
(16) The amendatory act that added this subsection does not
limit, modify, or otherwise affect the practice of nursing as that
term is defined in section 17201.
Enacting section 1. This amendatory act takes effect July 1,
2005.