HOUSE BILL No. 4173

 

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.