- Substitute -

SS/SS/SCS/SBs 556 & 311 - This act modifies various provisions relating to the protection of the elderly.

The Department may request the past five years compliance history for out-of-state home health agency applicants (Section 197.416).

The Department of Health and Senior Services shall provide through their Internet website the most recent survey of every home health agency and any deficiencies. The agency's response to the survey will be posted on the website. If a survey is in dispute, the survey will not be posted until the agency's response has been reviewed. The website shall also include the agency's proposed plan of correction and a link to the federal web site (Section 197.478).

The Department must maintain an employee disqualification list for home health agencies. The terms "knowingly" and "recklessly" are defined for placement on the employee disqualification list for employees of entities licensed pursuant to Chapter 197, RSMo that have been finally determined by the Department to have abused and neglected a patient. "Abuse" and "neglect" have the same meaning as specified in Section 198.006. A person acts "knowingly" with respect to the person's conduct when a reasonable person would be aware of the nature of the person's conduct (Section 197.500).

Section 198.006, RSMo, provides definitions for long-term care facilities.

The staff of a facility shall prepare copies of records requested by the Department within two working days or as determined by the Department. The Department cannot remove or disassemble any medical record during an inspection of the facility, but may observe the photocopying or make their own copies if the facility lacks the technology. The Department may request from an out-of-state applicant the compliance history of all out-of-state facilities owned by the applicant from the previous five years (Section 198.022).

If a facility submits satisfactory documentation that a deficiency contained within the written report has been corrected, an on-site reinspection may not be required (Section 198.027).

Every residential care facility I or II, intermediate care facility, and skilled nursing facility must post the most recent inspection report in a conspicuous place. Operators may redact any individually identifiable health information prior to posting an inspection report (Section 198.030).

The Department must maintain a hot-line caller log for the reporting of suspected abuse and neglect in long-term care facilities. The Department must attempt to obtain the name and address of any person making a report after obtaining relevant information regarding the alleged abuse or neglect. The identity of the person making the report will remain confidential (Section 198.032).

The Department may revoke a license if after adequate and proper notice, the operator refused to allow the Department access to residents and employees, the operator or anyone involved in the operation has ever knowingly acted or knowingly failed to perform any duty that materially or adversely affected the health, safety, welfare, or property of a resident, or the operator or anyone involved in the operation has ever been convicted of a felony relating to the management of a facility. The Department shall not have access to information that is not necessary to carry out the duties of Section 198.006 to Section198.186, RSMo (Section 198.036).

The Department shall impose sanctions that are commensurate with the seriousness of the violation found to have occurred. For Class I, II, and III violations, the remedies specified in this section may be imposed (Section 198.066).

Section 198.067 states that the maximum amount of civil penalties shall be twenty-five thousand dollars. The range of fines are: Class I: $1,000 to $10,000; Class II: $50 to $1,000; and Class III: $15 to $250.

The civil monetary penalties shall be distributed as follows: 25% to the Elderly Home-Delivered Meals Trust Fund, 25% to the Nursing Facility Quality of Care Fund to be used for the sole purpose of supporting quality care improvement projects within the Office of State Ombudsman for Long-Term Care Facility Residents, and 50% to the Nursing Facility Quality of Care Fund to assist qualified nursing facilities to improve the quality of service to the residents (Section 198.067).

New language in section 198.067(10) provides that when a class I violation results in serious physical injury, a substantial risk of serious harm, or sexual abuse to any resident, the facility shall be liable to the state for up to $200 dollars, which is multiplied by twice the number of beds licensed to the facility. The maximum penalty shall be $50,000.

The definition of "serious physical injury" in section 198.067(10) is modified to include physical injury that creates a substantial risk of serious harm or death.

The Department shall not impose a fine for self-reporting Class II and Class III violations so long as the violation is corrected within a specified amount of time and there is no reoccurrence of the particular violation for twelve months. Civil penalties shall remain the sole liability of the operator and cannot be sold, transferred, or assigned to any successor (Section 198.067).

Certain mandated reporters, including physician assistants, nurse practitioners and medical residents, must immediately report suspected abuse and neglect of eligible adults or persons sixty years of age and older to the Department. Any administrator of a facility that knowingly conceals an act of abuse or neglect that results in death or serious physical injury will be guilty of a Class D felony. The terms "knowingly" and "recklessly" are defined for placement on the employee disqualification list. A person acts "knowingly" with respect to the person's conduct when a reasonable person would be aware of the nature of the person's conduct (Section 198.070).

The staff of a residential care facility I and II, intermediate care facility, or a skilled nursing facility shall attempt to contact the resident's immediate family or responsible party and shall contact the attending physician and shall notify the local coroner or medical examiner immediately upon the death of a resident and prior to transferring the deceased to a funeral home (Section 198.071).

Nursing assistants must complete the training program within four months of employment. The training program can be offered at any facility licensed or approved by the Department (Section 198.082).

A new section 198.093 provides that any award of punitive damages should be made only if the complainant proves by clear and convincing evidence that the health care provider's actions demonstrated willful, wanton, or malicious misconduct.

The Department must promulgate rules for the determination, selection or removal of qualified receivers. The Department must also maintain a list of qualified receivers that have submitted a written request for a receivership of a facility. When a petition is filed, the Director of the Department must select the first name on the list and notify the person of their selection, the name of the facility, and the grounds for receivership. Names from the list will be chosen in consecutive order for each additional petition filed (Section 198.105).

Nursing home districts are prohibited from evicting, harassing, or retaliating against a resident or employee because of any reported violations made by the resident, resident's family, or employee of the facility. Residents and employees of a facility may obtain information regarding their rights and protections from the Department's telephone referral and information line (Section 198.301).

If the Division of Family Services is unable to make a determination regarding Medicaid eligibility within sixty days of the submission of a completed application for medical assistance for nursing facility services, then the patient will be Medicaid eligible until the application is approved or denied. However, the benefits shall not commence prior to the date of application (Section 198.428).

Section 198.525 allows residential care facilities I and all skilled nursing facilities, including those attached to acute care hospitals, to be inspected at least twice a year.

The Department may reduce the frequency of inspections to once a year if the facility is found to be in substantial compliance. Substantial compliance will be based on previous inspection reports, the facility's history of compliance, the number and severity of complaints received about the facility, and the facility having no changes in ownership, operator, or if the Department finds it significant, a change in Director of Nursing. Any employee of the Department who knowingly discloses the time of an unannounced inspection will be guilty of a Class A misdemeanor and will be immediately terminated (Section 198.526).

The Department shall provide through their website the most recent survey of every long-term care facility and any deficiencies. The facility's response to the survey will be posted on the Internet website. If a survey is in dispute, the survey will not be posted until the facility's response has been reviewed. The website shall also include the facility's proposed plan of correction and a link to the federal web site (Section 198.528).

Technical changes were made to section 198.532 to reference the "Department of Social Services" instead of the "Division of Aging".

The Department must promptly contact appropriate law enforcement agencies if they are unable to substantiate that abuse occurred due to the lack of cooperation of the operator and employees of the facility (Section 565.186).

Financial exploitation of an elderly or disabled person is a Class A misdemeanor if the property is less than $50, a Class D felony if the property is greater than $50 but less than $500, a Class C felony if the property is greater than $500 but less than $1000, and a Class B felony if the property is $1000 or more (Section 570.145).

Mental health facilities may disclose necessary information and records to the Department of Health and Senior Services for the investigation of abuse or neglect (Section 630.140).

Any person who purposely files a false report of abuse or neglect to the Department of Mental Health will be guilty of a Class A misdemeanor. Any person having a prior conviction of filing a false report of abuse or neglect will be guilty of a Class D felony (Section 630.165).

A technical change was made in section 660.250 to change the definition of "department" in Chapter 660, RSMo, from the "Department of Social Services" to the "Department of Health and Senior Services".

If the Department is conducting an investigation but is unable to access an eligible adult, the court may grant a warrant or other order to enter the premises, require production of information, and enjoin interference with an investigation (Section 660.270).

Certain mandated reporters, including physician assistants, nurses, nurse practitioners and medical residents, must immediately report suspected abuse and neglect of an in-home services client to the Department. If the client's physician makes a report of suspected abuse or neglect, the Department shall continuously contact the physician regarding the progress of the investigation. The Department must also notify the client's case manager when a report of abuse or neglect is made. If an in-home service provider fails to report abuse or neglect, the Department may impose a fine of $1,000 per violation against the provider. The terms "knowingly" and "recklessly" are defined for placement on the employee disqualification list. A person acts "knowingly" with respect to the person's conduct when a reasonable person would be aware of the nature of the person's conduct (Section 660.300).

Once a report is received, the Department of Social Services shall immediately begin an investigation and contact the appropriate law enforcement agencies (Section 660.305).

The Department of Health and Senior Services is required to give written notice of any proposed action, such as suspension, probation, and termination, to in-home service providers. In-home service providers must be given administrative appeal rights (Section 660.310).

Any employer, who must discharge an employee that was placed on the employee disqualification list after the date of hire, will not be charged with unemployment insurance benefits (Section 660.315).

Prior to any contact with patients and residents, criminal background checks must be conducted on all full-time, part-time, or temporary employees that are hired or contracted for an employment agency. Providers must request a nationwide criminal FBI background check for out-of-state applicants who have not resided in Missouri for five consecutive years and have no employment history with a licensed Missouri facility during that five year period. The total cost to the provider of any background check shall not exceed five dollars and shall be paid to the state. State funding and the obligation of a provider to obtain a nationwide criminal background check shall be subject to appropriations (Section 660.317).

Upon request, the Department must provide the Division of Employment Security with copies of the investigative reports that led to the placement of the employee on the employee disqualification list (Section 660.320).

The Department is prohibited from disclosing any personally identifiable medical, social, personal, or financial records of an eligible adult, except by court order. The Department of Health and Senior Services, the Department of Mental Health, the Department of Social Services, the Attorney General, appropriate law enforcement, and the eligible adult can access these records for examination or copying without a court order (Section 660.321).

LORIE TOWE