Model Act
MICHIGAN LONG-TERM CARE CONSUMER CHOICE
AND QUALITY IMPROVEMENT ACT
FEBRUARY 14, 2005
Sec. 1 Short title
This act shall be known and may be cited as the “Michigan Long-Term Care Consumer Choice and Quality Improvement Act.”
Sec. 2 Definitions
1) Definitions: When used in this Act, the following words shall have the following meanings:
(a) “Authority” means the entity created pursuant to section 4 of this act.
(b) “Commission” means the long-term care commission established pursuant to section 3 of this act.
(c) “Consumer” means an individual seeking or receiving public assistance for long-term care.
(d) “Department” means the department of community health.
(e) “Director” means the director of the department.
(f) “Long-term care” means those services and supports provided to an individual in a setting of his or her choice that are evaluative, preventive, rehabilitative, or health related in nature.
(g) “Medicaid” means the program for medical assistance established under title XIX of the social security act, chapter 531, 49 Stat. 620, 42 U.S.C. 1396 to 1396f, 1396g-1 to 1396r-6, and 1396r-8 to 1396v, and administered by the department under the social welfare act, 1939 PA 280, MCL 400.1 to 400.119b.
(h) “Person-centered planning” means a process for planning and supporting the individual receiving services that builds upon the individual’s capacity to engage in activities that promote community life and that honors the individual’s preferences, choices, and abilities. The person-centered planning process involves families, friends, and professionals as the individual desires or requires.
(i) “Primary consumer” means the actual user of long-term care services.
(j) “Secondary consumer” means family members or unpaid caregivers of consumers.
(k) “Single points of entry” means those entities created pursuant to section 6 of this act.
(l)”Transition services” means those services provided to assist an individual in moving from one setting to another setting of his or her choice and may include, but is not limited to, the payment of security deposits, moving expenses, purchase of essential furnishings, and purchase of durable medical equipment.
Sec. 3 Findings and purpose
1) The legislature finds that long-term care services and supports are critically important for Michigan citizens, their families, caregivers and communities, that the need for long-term care services and supports is expected to increase substantially as the number of older people and people with disabilities increases, that consumers will be best served by the creation and continuing refinement of a carefully coordinated long-term care system that promotes healthy aging, consumer education and choice, innovation, quality, dignity, autonomy, the efficient and effective allocation of resources in response to consumer needs and preferences, and the opportunity for all long-term care consumers, regardless of their age or source of payment, to develop and maintain their fullest human potential.
2) Consistent with section 51 of article IV of the state constitution of 1963, which declares that the health of the people of the state is a matter of primary public concern, and as required by section 8 of article VII of the state constitution of 1963, which declares that services for the care, treatment, education or rehabilitation of persons with disabilities shall always be fostered and supported, the department is charged with the primary responsibility for ensuring the development and availability of a system of long-term care as described in this act.
3) The purpose of this Act is to ensure all of the following:
(a) That consumers have access to a well-coordinated, comprehensive, adequately funded and dynamic array of long-term services and supports including but not limited to assessment, care planning, in-home services and supports, a range of assisted living options, care management services, respite care services, nursing facility care, hospice care, primary care, chronic care management, supports coordination, and acute care. This array of services and supports must be designed through a person-centered planning process to meet existing consumer needs and preferences, be flexible and responsive to changing consumer needs and preferences, and encourage innovation and quality;
(b) That consumers are provided with sufficient education and support to make informed choices about their long-term care service and supports options;
(c) That the system is consumer focused, embraces person centered planning, and fosters the creation of innovative long-term care options;
(d) That services and supports are provided in the most independent living setting be consistent with the consumer’s needs and preferences;
(e) That access to long-term care services and supports is determined by a uniform system for comprehensively assessing abilities and needs;
(f) That public resources purchase, permit, and promote high quality settings, services, and supports through:
(1) adequate and consistent monitoring of publicly funded settings, services and supports;
(2) consistent and appropriate enforcement of statutory and regulatory standards;
(3) monitoring of outcomes of long-term care for quality and adherence to the consumers’ expressed preferences; and
(4) swift and effective remedies if services, supports, or settings fail to meet quality standards or to promote long-term care consumers’ dignity, autonomy, and choice.
(g) The goal of the system shall be continuous quality improvement focused on consumer satisfaction and the consistent achievement of clear standards concerning the health, safety, autonomy, and dignity of long-term care managers; family members; and others when appropriate. These mechanisms shall assist regulators and policy makers in evaluating quality and consumer satisfaction and in determining necessary adaptations and improvements in the dynamic long-term care system.
(h) That long-term care services are coordinated in a way that minimizes administrative cost, eliminates unnecessarily complex organization, minimizes program and service duplication, and maximizes the use of financial resources in meeting the needs and preferences of long-term care consumers.
(i) That the state collects, analyzes, and distributes to the public on an ongoing basis complete data regarding current utilization of long-term care services and supports, unmet needs, consumer preferences, demographic data, workforce capacity, and other information that will assist the state in the continuing coordination and refinement of its long-term care system. In addition, ensure the state publishes periodic reports that assess the adequacy and efficacy of the reimbursement and enforcement systems and identify areas requiring improvement, unmet needs, successful innovations, and best practices.
(j) That state and the long-term care industry build and sustain an adequate, well-trained, highly motivated and appropriately compensated workforce across the long-term care continuum.
(k) That all stakeholders including consumers and their families and advocates, providers, representatives of the long-term care workforce, public officials and others have a continuing opportunity for meaningful input in the development and refinement of the long-term care system.
Sec. 4 Long-term care commission
1) A commission on long-term care is hereby established, to be appointed by the governor.
2) The commission shall consist of twenty-five members appointed by the governor. Commission membership shall consist of fourteen consumers, of which at least fifty percent are primary consumers and of those primary consumers at least fifty percent shall be users of Medicaid services, the remainder comprised of secondary consumers and consumer organization representatives, seven providers or provider organization representatives, three direct care workers and one member with expertise in long-term care research from a university. Overall commission membership shall also reflect the geographic and cultural diversity of the state.
3) One representative each from the single point entry network, the State Long-Term Care Ombudsman, the designated protection and advocacy system, the Department of Community Health, the Department of Human Services and the Department of Labor and Economic Growth, all of whom shall serve in non-voting supporting roles as ex-officio members. Staff from the Medical Services Administration and the Office of Services to the Aging shall serve as resources to the commission and shall assist the commission as needed.
4) Voting member terms shall be three years, staggered to ensure continuity and renewable under the appointment process. If a vacancy occurs during the term of a voting member, the governor shall appoint a replacement to serve out the remainder of the term and shall maintain the same composition for the commission as set forth in sec. 4(2).
5) Commissioners are entitled to receive a stipend, if not otherwise compensated and reimbursement for actual and necessary expenses while acting as an official representative of the commission as defined by commission policies and procedures. Commission policies and reimbursement shall establish and practice full accommodation to individual support needs of commission members, including their direct care and support workers or personal assistants, support facilitation or other persons serving them as secondary consumers.
6) The governor shall designate one person from among the consumer membership to serve as chairperson of the commission, who shall serve at the pleasure of the governor.
7) The commission shall do all of the following:
(a) Serve as an effective and visible advocate for all consumers of long-term care supports and services.
(b) Participate in the preparation and review, prior to the submission to the governor, of an ongoing, comprehensive statewide plan and budget for long-term care services and supports design, allocations and strategies to address and meet identified consumer preferences and needs.
(c) Ensure the broadest possible ongoing public participation in statewide planning as part of subsection (1)(b).
(d) Ensure broad, culturally competent, and effective public education initiatives are ongoing on long-term care issues, choices and opportunities for direct involvement by the public.
(e) Evaluate the performance of the designated single point of entry agencies on an annual basis and make its report and recommendations for improvement to the single point of entry system available to the legislature and the public.
(f) Continuously monitor spending and budget implementation, including how well expenditures match policy decisions and initiatives based on consumer preferences and needs.
(g) Meet at least six times per year.
(h) A quorum of the commission shall consist of at least fifty percent of the voting membership, provided at least eight consumer members are present or participating. Participation may be by telephone or other means, in accordance with other statutory provisions and as determined by the commission.
Sec. 5 Long-term care administration
1) (Insert here language directing how the administration will be created, where it will be located, etc.).
2) The long-term care administration shall do all of the following:
(a) Serve as an effective, visible, and accessible advocate for all consumers of long- term care supports and services.
(b) Prepare and implement an ongoing, comprehensive statewide plan for the governor for long-term care services and supports design, administration and oversight to ensure delivery of an organized system which meets identified consumer preferences and needs.
(c) Develop and implement an ongoing budget that ensures state financial resources follow consumer preferences under the comprehensive state plan for review by the commission prior to submission to the governor.
(d) Ensure the broadest possible ongoing public participation in statewide planning as part of subsection (2)(b).
(e) Recommend to the department director designations and de-designations of the state’s single points of entry (SPE) network agencies under established guidelines; recommend contract awards; establish performance and review standards for SPE agencies; receive standardized annual and other reporting from the agencies.
(f) Ensure broad, culturally competent and effective public education initiatives are ongoing on long-term care issues and choices.
(g) Advise the governor, the legislature, and directors of relevant agencies and department heads regarding changes in federal and state programs, statutes, and policies.
(j) As part of its ongoing planning, identify and address long-term care workforce capacity, training and regulatory issues in both the public and private sectors.
(k) Retain state approval over proposed changes in Medicaid policy and services related to long-term care before publication and comment; continually reform eligibility policy to improve timeliness and access.
(l) Develop and maintain a comprehensive state database and information collection system on long-term care service and supports capacities and utilization that is publicly accessible, while protecting individual consumer privacy, for the purposes of individual and state-aggregated planning, forecasting, and research.
(m) Ensure all necessary and vital linkages among acute, primary and chronic care management supports and services are maintained and continually strengthened to complement, leverage, and enhance services, supports and choices in the long-term care system.
(n) Develop and implement policies and procedures that will facilitate efficient and timely transition services for individuals moving from a nursing facility to home or apartment in the community. Services may include, but are not limited to payment of security deposits, moving expenses purchase of essential furnishings and durable medical equipment.
(o) Identify and implement progressive management models, culture change, and indicated administrative restructuring to maximize efficiency, optimize program design and services delivery; provide technical assistance in these areas to providers and interested members of the public.
(p) Establish a comprehensive, uniform, and enforceable consumer rights and appeals system.
Sec. 6 Single points of entry
1) It is the intent of the legislature that locally or regionally based single points of entry for long-term care serve as visible and effective access points for persons seeking long-term care and promote consumer education and choice of long-term care options.
2) The director shall designate and maintain locally and regionally based single points of entry for long-term care that will serve as visible and effective access points for persons seeking long-term care and promote consumer choice.
3) The department shall monitor designated single points of entry for long-term care to:
(a) prevent bias in eligibility determination and the promotion of specific services to the detriment of consumer choice and control;
(b) Review all consumer assessments and care plans to ensure consistency, quality and adherence to the principles of person-centered planning and other criteria established by the department;
(c) Assure the provision of quality assistance and supports;
(d) Assure that quality assistance and supports are provided to applicants and consumers in a manner consistent with their cultural norms, language of preference, and means of communication.
(e) Assure consumer access to an independent consumer advocate.
4) The department shall establish and publicize a toll-free telephone number for those areas of the state in which a single point of entry is operational as a means of access to the single point of entry for consumers and others.
5) The department shall promulgate rules establishing standards of reasonable promptness for the delivery of single point of entry services and for long-term care services and supports.
6) The department shall require that designated single points of entry for long-term care perform the following duties and responsibilities:
(a) Provide consumers and any others with information on and referral to any and all long-term care options, services, and supports;
(b) Facilitate movement between supports, services, and settings in an adequate and timely manner that assures the safety and well-being of the consumer;
(c) Assess a consumer’s eligibility for all Medicaid long-term care programs utilizing a comprehensive level of care tool;
(d) Assist consumers to obtain a financial determination of eligibility for publicly funded long-term care programs;
(e) Assist consumers to develop their long-term care support plans through a person-centered planning process;
(f) Authorize and, if requested, arrange for needed transition services for consumers living in nursing facilities;
(g) Work with consumers in acute and primary care settings as well as community settings to assure that they are presented with the full array of long-term care options;
(h) Re-evaluate consumers’ need and eligibility for long-term care services on a regular basis;
(i) Perform the authorization of Medicaid services identified in the consumer’s care supports plan.
7) The department shall, in consultation with consumers, stakeholders, and members of the public, establish criteria for the designation of local or regional single points of entry for long-term care. The criteria shall assure that single points of entry for long-term care:
(a) Are not a provider of direct Medicaid services. For purpose of this act, care management and supports coordination are not defined as a direct Medicaid service;
(b) Are free from all legal and financial conflicts of interest with providers of Medicaid services;
(c) Are capable of serving as the focal point for all persons seeking information about long-term care in their region, including those who will pay privately for services;
(d) Are capable of performing consumer data collection, management, and reporting in compliance with state requirements;
(e) Have quality assurance standards and procedures that measure consumer satisfaction, monitor consumer outcomes, and trigger care and supports plan changes;
(f) Maintain internal and external appeals processes that provide for a review of individual decisions;
(g) Complete an initial evaluation of applicants for long-term care within two business days after contact by the individual or his or her legal representative; and
(h) In partnership with the consumer, develop a preliminary person-centered plan within seven days after the applicant is found eligible for services.
8) Designated single points of access for long-term care that fail to meet the above criteria, and other fiscal and performance standards as determined by the department, may be subject to de-designation by the department.
9) The department shall promulgate rules establishing timelines of within two business days or less for the completion of initial evaluations of individuals in urgent or emergent situations and shall by rule establish timelines for the completion of a final evaluation and assessment for all individuals, provided such timeline is not longer than two weeks from time of first contact.
10) The department shall solicit proposals from entities seeking designation as a single point of entry and shall designate at least three agencies to serve as a single point of entry in at least three separate areas of the state. There shall be no more than one single point of entry in each designated region. The designated agencies shall serve in that capacity for an initial period of three years, subject to the provisions of Sec. 4(3).
11) The department shall evaluate the performance of the designated agencies on an annual basis and shall make its report and recommendations for improvement to the single point of entry system available to the legislature and the public.
12) No later than October 1, 2008, the department shall have a designated agency to serve as a single point of entry in each region of the state. Nothing in this section shall be construed to prohibit the department from designating single points of entry throughout the entire state prior to said date.
13) The department shall promulgate rules to implement this act within six months of enactment.
Sec. 7 Quality
1) The authority shall have a continuing responsibility to monitor state agencies’ performance in responding to, investigating, and ensuring appropriate outcomes to complaints and in performing its survey and enforcement functions. The Long-Term Care Administration shall issue regulations and policy bulletins, as appropriate, and take other appropriate action to improve performance or address serious deficiencies in state agencies’ practices with regard to handling complaints and in performing survey and enforcement functions.
2) The authority shall establish a single toll free hotline to receive complaints from recipients of all Medicaid funded long-term care services and settings. State employees responsible for this function shall:
(a) Staff the complaint line 24 hours a day, 7 days per week;
(b) Be trained and certified in information and referral skills;
(c) Conduct a brief intake;
(d) Provide information and referral services to callers including information about relevant advocacy organizations; and
(e) Route the call to the appropriate state agency or advocacy organization to record and respond to the consumer's concern. Relevant state agencies shall ensure on-call staff is available after hours to respond to any calls that are of an emergency nature. The authority shall ensure that hotline staff are consistently informed how to contact on-call staff at all relevant state agencies to which long-term care complaints may be referred.
3) The administration shall also ensure that consumers can file complaints about any Medicaid funded long-term care setting or service using a simple, web-based complaint form.
4) The administration shall publicize the availability of the 24 hour hotline and web-based complaint system through appropriate public education efforts.
5) The administration shall form a workgroup to determine if state agencies’ complaint protocols ensure a timely and complete response and to monitor for appropriate outcomes. The workgroup shall also address whether state agencies are performing their survey and enforcement functions in the most effective manner and if their practices promote quality and person-centered planning.
(a) The workgroup shall be comprised of a minimum of fifty percent consumers and/or consumer advocacy groups. The remainder of the workgroup shall include the State Long-Term Care Ombudsman and/or his/her representative, long-term care providers, a representative from the designated protection and advocacy system, and representatives from the departments that enforce the regulations in long-term care facilities.
(b) The workgroup will be charged with examining the number of consumer complaints received, the timeliness of response to these complaints, the process used by state investigators for these complaints, and the resolutions of these concerns. The workgroup will utilize existing resources such as Auditor General reports on state agencies that regulate long-term care facilities or services and any additional data it requires to perform its duties. Based on these findings, the workgroup will issue recommendations to the administration and to the director.
(c) The workgroup shall also be charged with a comprehensive review of state law and policy, including licensing laws and regulations, receivership provisions, and other mechanisms for regulating long-term care services to determine whether these laws and policies should be deleted, amended, or modified to promote quality, efficiency, and person-centered planning or to reflect changes in the long term care system. The workgroup shall issue recommendations to the authority and to the director.
6) The departments responsible for licensing of long-term care settings shall, within twelve months of the date of enactment of this statute, promulgate rules to establish a process for identifying all licensed long-term care settings which, absent intervention by the state, are likely to either close or in which care is likely to diminish or remain below acceptable standards. In promulgating these rules, the departments shall consider, but not be limited to, the facility's financial stability, administrative capability, physical plant, and regulatory history.
7) If a department has a reasonable suspicion that a licensed facility lacks administrative capability, financial stability, financial capability, or is not structurally sound, it shall have the right to request any and all relevant documentation including, but not limited to, independent audits of the facility, credit reports, physical plant inspections by appropriate professionals, and other relevant information. It may also investigate and consider factors such as whether the facility has filed for bankruptcy or whether foreclosure has been filed, consistently declining occupancy rates, chronic noncompliance, or other relevant information.
8) In the event a department identifies a facility to be nonviable, it shall take appropriate measures to protect the health and safety of the residents, which may include the following:
(a) The prompt appointment of a temporary manager or receiver with authority to take all actions necessary for the purpose of stabilizing the facility and protecting the residents, including:
1. Making all improvements necessary to ensure residents receive services that meet or exceed minimum regulatory standards; or
2. If necessary and appropriate, arranging for the safe and orderly transfer of residents out of the facility consistent with their person-centered plan and choices.
(b) Redistributing beds within the community to other facilities or making funding available in other long-term care settings, including home and community based care.
9)The State shall ensure that relevant state agencies have sufficient staff to meet all statutory or regulatory time frames for the completion of their responsibilities; effectively and expediently monitor services, supports, and facilities; respond to complaints; and enforce existing state laws and regulations regarding minimum standards for long-term care services, supports, and facilities.
Sec. 8 Consumer advocate
1) No later than six months after the enactment of this act, the governor shall designate an agency with the independence and capacity to serve as an advocate for long-term care consumers, as set forth in this section. This designation shall continue indefinitely unless, for good cause shown, the agency is unwilling or incapable of performing its duties as set forth in this section.
2) The designated agency shall have the responsibility to identify, investigate, and resolve complaints concerning services provided pursuant to this act; shall assist applicants for long-term care who have been denied services and supports; and shall pursue legal, administrative and other remedies at the individual and systemic level to ensure the protection of and advocacy for the rights of long-term care consumers.
3) The designated agency shall have access at reasonable times to any consumer in a location in which services and supports are provided.
4) The designated agency shall have access to the medical and mental health records of long-term care consumers or applicants for long-term care under any of the following conditions:
(a) With consent of the consumer or applicant or his or her legal representative;
(b) Without consent, if the consumer is unable to give consent and there is no legal representative or the state is the individual’s representative and the designated agency has received a complaint or has probable cause to believe that abuse or neglect has occurred; or
(c) Without consent, if the consumer is unable to give consent and the legal representative has refused or failed to act on behalf of the individual and the designated agency has received a complaint or has probable cause to believe that abuse or neglect has occurred.
5) Records requested by the designated agency shall be made available for review and copying within three business days or, in the event of death or a request made pursuant to 4(b) or (c), within 24 hours.
6) The designated agency shall maintain an office in each of the service areas of the single points of entry.
7) The designated agency shall coordinate its activities with those of the state long-term care ombudsman and the designated protection and advocacy system.
8) The designated agency shall prepare an annual report and provide information to the public and to policymakers regarding the problems of long-term care consumers.
9) The legislature shall appropriate sufficient funds to enable the designated agency to perform its duties.
[A]Decision needs to be made on whether to name specific State officials, such as the Director of the Office of Services to the Aging and/or “up to three additional representatives of relevant State agencies.”
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