H.P. 1410 - L.D. 2015
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 22 MRSA §7912-A, sub-§§1 and 2, as amended by PL 1997, c. 728, §11, are further amended to read:
1. General requirements. The Department of Human Services may permit up to 2 beds in the facility for nonambulatory or mobile nonambulatory residents if the following conditions are met.
A. The facility conforms to the residential board and care occupancy section for small facilities of the National Fire Protection Association Life Safety Code, chapter 21, as adopted by the Commissioner of Public Safety. If there is Facilities with 5 or more beds must be provided with an interconnected smoke detection system and a direct exit from the bedroom, the requirement for construction type or a sprinkler system may be waived must be protected throughout by an approved automatic sprinkler system.
B. There are no more than 2 mobile nonambulatory or one nonambulatory and one mobile nonambulatory residents. Any facility housing more than one nonambulatory resident must meet the requirements of subsection 2.
C. All nonambulatory and mobile nonambulatory residents must be housed on the first floor of the facility with direct egress to a common corridor with 2 exits leading directly to the exterior of the facility.
D. Facilities with 7 or 8 beds must be ramped to grade at both exits referred to in paragraph C. Facilities with 6 or fewer beds must be ramped to grade at one exit. Facilities with 6 or fewer beds with a nonambulatory resident must be ramped to grade at both exits.
E. There must be at least one staff person available on the premises of the facility when any resident is present. Additional staff may be required at night at the direction of the Commissioner of Public Safety.
F. If a facility with 7 or 8 beds is of new construction, any doorway in the path of egress for a nonambulatory or mobile nonambulatory resident must be at least 36 inches in width. If the facility is of existing construction, any doorway in the path of egress for a nonambulatory or mobile nonambulatory resident must be at least 34 inches in width. For facilities with 6 or fewer beds, the requirement for manual alarm activation may be waived at the discretion of the Commissioner of Public Safety.
2. Requirements when number of nonambulatory or mobile nonambulatory residents exceeds limits. Residential care facilities may provide services to more residents who are nonambulatory or mobile nonambulatory than allowed under subsection 1 if, in addition to those requirements:
A. The structure meets all the requirements of the residential board and care occupancy section for small facilities of the National Fire Protection Association Life Safety Code, chapter 22 or 23 Residential Board and Care chapters. The structure must be of protected wood frame construction unless it is provided with either a National Fire Protection Association Standard No. 13 or a Life Safety protected throughout with an approved sprinkler system. Additional staff may be required at the direction of the Commissioner of Public Safety.
Sec. 2. 22 MRSA §7915, sub-§1, as enacted by PL 1995, c. 670, Pt. A, §12 and affected by Pt. D, §5, is amended to read:
1. Rules; operation of congregate housing services programs. Adopting rules governing the operation of services to be provided under congregate housing services programs paid for with state funds. Rules adopted pursuant to this section are major substantive routine technical rules as defined by Title 5, chapter 375, subchapter II-A;
Sec. 3. 22 MRSA §7923, sub-§2, ¶F, as enacted by PL 1981, c. 445, is amended to read:
F. To notify the Department of Human Services and the Maine Committee on Aging long-term care ombudsman when they are constituted.
Sec. 4. 22 MRSA §7924, sub-§5, as enacted by PL 1981, c. 445, is amended to read:
5. Construction. Nothing in this This section shall may not be construed to limit the powers or responsibilities of the nursing home and boarding home long-term care ombudsman.
Sec. 5. 22 MRSA §7931, as amended by PL 1995, c. 620, §4, is further amended to read:
It is the purpose of this chapter to develop a mechanism by which the concept of receivership can be utilized for the protection of residents in long-term care facilities and, clients of home health care providers, general and specialty hospitals, critical access hospitals, ambulatory surgical centers, hospice agencies and end-stage renal disease units. It is the intent of the Legislature that receivership be a remedy of last resort when all other methods of remedy have failed or when the implementation of other remedies would be futile.
Sec. 6. 22 MRSA §7932, sub-§1-A, as enacted by PL 1995, c. 620, §5, is amended to read:
1-A. Client. "Client" means a person who receives services from a home health agency, long-term care facility, general and specialty hospital, critical access hospital, ambulatory surgical facility, hospice agency or end-stage renal disease unit.
Sec. 7. 22 MRSA §7932, sub-§1-B is enacted to read:
1-B. End-stage renal disease unit. "End-stage renal disease unit" means a facility that provides specialized services to assist individuals who have been diagnosed as having an irreversible and permanent kidney disease that requires dialysis or kidney transplantation to maintain life.
Sec. 8. 22 MRSA §7932, sub-§2, as amended by PL 1999, c. 99, §1, is further amended to read:
2. Facility. "Facility" means any assisted living facility, residential care facility or congregate housing services program subject to licensure pursuant to chapters 1663 and 1665, any skilled nursing or intermediate care nursing facility or unit subject to licensure pursuant to chapter 405 and any private psychiatric hospital subject to licensure pursuant to chapter 405.
Sec. 9. 22 MRSA §7932, sub-§2-A is enacted to read:
2-A. General hospital. "General hospital" means an acute health care facility with permanent inpatient beds planned, organized, operated and maintained to offer on a continuous basis facilities and services for the diagnosis and treatment of illness, injury and deformity that has a governing board and an organized medical staff, offering a continuous 24-hour professional nursing care plan to provide continuous 24-hour emergency treatment and that includes the following services or organizational units:
A. Administration;
B. Nursing services;
C. Emergency services;
D. Dietary service;
E. Medical record service;
F. Radiology service;
G. Pathology or clinical laboratory service;
H. Pharmaceutical service;
I. Hospital safety program;
J. Disaster plan; and
K. Inservice education.
"General hospital" does not mean a federally controlled or state-controlled institution, a community health center, an independent outpatient diagnostic or treatment center, a doctor's office, a college infirmary or an industrial dispensary.
Sec. 10. 22 MRSA §7932, sub-§3-A, as enacted by PL 1995, c. 620, §5, is amended to read:
3-A. Home health care provider. "Home health care provider" means any business entity or subdivision of a business entity, whether public or private, proprietary or nonprofit, that is engaged in providing acute, restorative, rehabilitative, maintenance, preventive or health promotion services through professional nursing or another therapeutic service, such as physical therapy, home health aids aides, nurse assistants, medical social work, nutritionist services or personal care services, either directly or through contractual agreement, in a client's place of residence. This term does not apply to any sole practitioner providing private duty nursing services or other restorative, rehabilitative, maintenance, preventive or health promotion services in a client's place of residence or to municipal entities providing health promotion services in a client's place of residence. This term does not apply to a federally qualified health center or a rural health clinic as defined in 42 United States Code, Section 1395x, subsection (aa) (1993) that is delivering case management services or health education in a client's place of residence. Beginning October 1, 1991 "home health care provider" includes any business entity or subdivision of a business entity, whether public or private, proprietary or nonprofit, that is engaged in providing speech pathology services.
Sec. 11. 22 MRSA §7932, sub-§3-B is enacted to read:
3-B. Hospice agency. "Hospice agency" means a public agency or private organization that is primarily engaged in providing specified services to terminally ill individuals and their families. The services provided are nursing care, physicians services, physical and speech therapy, home health aid, homemaker services, pastoral counseling, social work services, occupational therapy and dietary services in addition to bereavement counseling. The care may be provided as services to patients in institutions, as respite care, as routine home care or as continuous home care.
Sec. 12. 22 MRSA §7932, sub-§7, as enacted by PL 1983, c. 454, is amended to read:
7. Substantial violation. "Substantial violation" means a violation of state or federal law which that presents a reasonable likelihood of serious physical or mental harm to residents or clients.
Sec. 13. 22 MRSA §7932, sub-§§9 and 10 are enacted to read:
9. Ambulatory surgical facility. "Ambulatory surgical facility" means a facility with the primary purpose of providing elective surgical care to a patient who is admitted to and discharged from the facility within the same day. In order to meet this primary purpose, a facility must at least administer anesthetic agents, maintain a sterile environment in a surgical suite and share a facility fee separate from the professional license. "Ambulatory surgical facility" does not include:
A. A facility that is licensed as part of a hospital;
B. A facility that provides services or accommodations for patients who stay overnight;
C. A facility existing for the primary purpose of performing terminations of pregnancies; or
D. The private office of a physician or dentist in individual or group practice, unless the office is certified as a Medicare ambulatory surgical center.
10. Critical access hospital. "Critical access hospital" means a hospital that must first be designated and approved by the State, as long as the State also has established an approved rural hospital flexibility program. In addition, it must also:
A. Be a rural public or nonprofit hospital located in a state that has established a rural hospital flexibility program;
B. Have a Medicare participation agreement as a hospital and be in compliance with the Medicare hospital conditions of participation;
C. Be located more than a 35-mile drive from any other hospital or critical access hospital. In mountainous terrain or in areas with only secondary roads, the mileage criterion is 15 miles;
D. Provide not more than 15 beds for acute hospital-level inpatient care:
(1) Except that a swing-bed facility is allowed to have up to 25 inpatient beds that can be used interchangeably for acute or skilled nursing facility care, as long as not more than 15 beds are used at any one time for acute care;
E. Agree to keep each inpatient for no longer than 96 hours, unless a longer period is required because of inclement weather or other emergency conditions or a Peer Reviser Organization, "PRO" or other equivalent entity, on request, waives the 96-hour restriction; and
F. Meet the requirements of the Conditions of Participation for Critical Access Hospitals found in 42 Code of Federal Regulations, Part 485, Subpart F.
Sec. 14. 22 MRSA §7933, sub-§1, as amended by PL 1995, c. 620, §6, is further amended to read:
1. Grounds for appointment. The following circumstances are grounds for the appointment of a receiver to operate a long-term care facility or, home health care provider, general and specialty hospitals, critical access hospitals, ambulatory surgical centers, hospice agencies and end-stage renal disease units.
A. A long-term care facility or, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit intends to close but has not arranged at least 30 days prior to closure for the orderly transfer of its residents or clients.
B. An emergency exists in a long-term care facility or, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit that threatens the health, security or welfare of residents or clients.
C. A long-term care facility or, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit is in substantial or habitual violation of the standards of health, safety or resident care established under state or federal regulations to the detriment of the welfare of the residents or clients.
This remedy is in addition to, and not in lieu of, the power of the department to revoke, suspend or refuse to renew a license under the Maine Administrative Procedure Act, Title 5, chapter 375.
Sec. 15. 22 MRSA §7934, as amended by PL 1995, c. 620, §7, is further amended to read:
§7934. Powers and duties of the receiver
1. Powers and duties. A receiver appointed pursuant to this chapter has such powers as the court may direct to operate the long-term care facility or, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit and to remedy the conditions that constituted grounds for the receivership, to protect the health, safety and welfare of the residents or clients and to preserve the assets and property of the residents or clients, the owner and the licensee. On notice and hearing, the court may issue a writ of possession in behalf of the receiver, for specified facility property.
The receiver shall make reasonable efforts to notify residents or clients and family that the long-term care facility or, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit is placed in receivership. The owner and licensee are divested of possession and control of the long-term care facility or, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit during the period of receivership under such conditions as the court specifies. With the court's approval, the receiver has specific authority to:
A. Remedy violations of federal and state regulations governing the operation of the long-term care facility or, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit;
B. Hire, direct, manage and discharge any employees, including the administrator of the long-term care facility or, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit;
C. Receive and expend in a reasonable and prudent manner the revenues of the long-term care facility or, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit due during the 30-day period preceding the date of appointment and becoming due thereafter;
D. Continue the business of the home or long-term care facility, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit and the care of residents or clients;
E. Correct or eliminate any deficiency of the long-term care facility or, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit that endangers the safety or health of the residents or clients, if the total cost of the correction does not exceed $3,000. The court may order expenditures for this purpose in excess of $3,000 on application from the receiver; and
F. Exercise such additional powers and perform such additional duties, including regular accountings, as the court considers appropriate.
2. Revenues of the facility. Revenues of the facility must be handled as follows.
A. The receiver shall apply the revenues of the long-term care facility or, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit to current operating expenses and, subject to the following provisions, to debts incurred by the licensee prior to the appointment of the receiver. The receiver shall ask the court for direction in the treatment of debts incurred prior to appointment where such debts appear extraordinary, of questionable validity, or unrelated to the normal and expected maintenance and operation of the long-term care facility or, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit, or where payment of the debts will interfere with the purposes of the receivership. Priority must be given by the receiver to expenditures for current direct resident or client care. Revenues held by or owing to the receiver in connection with the operation of the long-term care facility or, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit are exempt from attachment and trustee process, including process served prior to the institution of receivership proceedings.
B. The receiver may correct or eliminate any deficiency of the long-term care facility or, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit that endangers the safety or health of the resident or client, if the total cost of the correction does not exceed $3,000. On application by the receiver, the court may order expenditures for this purpose in excess of $3,000. The licensee or owner may apply to the court to determine the reasonableness of any expenditure over $3,000 by the receiver.
C. In the event that the receiver does not have sufficient funds to cover expenses needed to prevent or remove jeopardy to the residents or clients, the receiver may petition the court for permission to borrow for these purposes. Notice of the receiver's petition to the court for permission to borrow must be given to the owner, the licensee and the department. The court may, after hearing, authorize the receiver to borrow money upon specified terms of repayment and to pledge security, if necessary, if the court determines that the long-term care facility or, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit should not be closed and that the loan is reasonably necessary to prevent or remove jeopardy or if it determines that the long-term care facility or, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit should be closed and that the expenditure is necessary to prevent or remove jeopardy to residents or clients for the limited period of time that they are awaiting transfer. The purpose of this provision is to protect residents or clients and to prevent the closure of long-term care facilities or, home health care providers, general hospitals, specialty hospitals, critical access hospitals, ambulatory surgical centers, hospice agencies or end-stage renal disease units that, under proper management, are likely to be viable operations. This section may not be construed as a method of financing major repair or capital improvements to facilities that have been allowed to deteriorate because the owner or licensee has been unable or unwilling to secure financing by conventional means.
3. Avoidance of preexisting leases, mortgages and contracts. A receiver may not be required to honor a lease, mortgage, secured transaction or other contract entered into by the owner or licensee of the long-term care facility or, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit if the court finds that:
A. The person seeking payment under the agreement has an ownership interest in the long-term care facility or, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit or was related to the licensee, the long-term care facility or the, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit by a significant degree of common ownership or control at the time the agreement was made; or
B. The rental, price or rate of interest required to be paid under the agreement is in excess of a reasonable rental, price or rate of interest.
If the receiver is in possession of real estate or goods subject to a lease, mortgage or security interest that the receiver is permitted to avoid and if the real estate or goods are necessary for the continued operation of the long-term care facility or, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit, the receiver may apply to the court to set a reasonable rental, price or rate of interest to be paid by the receiver during the term of the receivership. The court shall hold a hearing on the application within 15 days, and the receiver shall send notice of the application to any known owners and mortgagees of the property at least 10 days before the hearing. Payment by the receiver of the amount determined by the court to be reasonable is a defense to an action against the receiver for payment or for the possession of the subject goods or real estate by a person who received such notice.
Notwithstanding this subsection, there may not be a foreclosure or eviction during the receivership by any person if the foreclosure or eviction would, in view of the court, serve to defeat the purpose of the receivership.
4. Closing of long-term care facility, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit. The receiver may not close the long-term care facility or, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit without leave of the court. In ruling on the issue of closure, the court shall consider:
A. The rights and best interests of the residents or clients;
B. The availability of suitable alternative placements;
C. The rights, interest and obligations of the owner and licensee;
D. The licensure status of the long-term care facility or, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit; and
E. Any other factors that the court considers relevant.
When a long-term care facility or, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit is closed, the receiver shall provide for the orderly transfer of residents or clients to mitigate transfer trauma.
Sec. 16. 22 MRSA §7937, as amended by PL 1995, c. 620, §8, is further amended to read:
§7937. Court order to have effect of license
An order appointing a receiver under section 7933 has the effect of a license for the duration of the receivership. The receiver is responsible to the court for the conduct of the long-term care facility or, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit during the receivership, and a violation of regulations governing the conduct of the long-term care facility or, home health care provider, general hospital, specialty hospital, critical access hospital, ambulatory surgical center, hospice agency or end-stage renal disease unit, if not promptly corrected, must be reported by the department to the court.
Sec. 17. 22 MRSA §7942, sub-§3, as amended by PL 1999, c. 99, §2, is further amended to read:
3. Long-term care facility. "Long-term care facility" means an assisted living facility or congregate housing services program subject to licensure pursuant to chapters 1663 and 1665 and a skilled nursing or intermediate care facility or unit subject to licensure pursuant to chapter 405.
Sec. 18. 22 MRSA §7942, sub-§7, as enacted by PL 1987, c. 774, §4, is amended to read:
7. State licensing rules. "State licensing rules" refers to the department's rules governing the licensing and functioning of skilled nursing and intermediate care facilities, intermediate care facilities for the mentally retarded persons with mental retardation and boarding care assisted living facilities.
Sec. 19. 25 MRSA §2453, as amended by PL 1973, c. 632, §11, is further amended to read:
Each story above the first story of a building used as a schoolhouse, orphan asylum, hospital for the mentally ill, reformatory, opera house, hall for public assemblies, hotel, boardinghouse or lodginghouse accommodating more than 6 persons, or tenement house occupied by more than 2 families, or store in which more than 10 persons are employed above the first story, shall must be provided with more than one way of egress, by stairways on the inside or fire escapes on the outside of such building. Such stairways and fire escapes shall must be so constructed, in such a number, or such size and in such location as to give reasonably safe, adequate and convenient means of exit, in view of the number of persons who may need to use such stairway or fire escape, shall must at all times be kept free from obstruction and shall must be accessible from each room in each story above the first story.
Any apartment building of 3 stories or less in its entirety is permitted to have a single exit under the condition that the building is protected throughout by an approved automatic sprinkler system, meets the requirements of the applicable chapter of the National Fire Protection Association Life Safety Code 101 and every sleeping room has a 2nd means of escape.
No An individual, partnership or corporation shall may not offer for sale in this State, any type of fire escape device or fire alarm systems unless first securing approval of the Commissioner of Public Safety.
Any person or corporation aggrieved by any order of the commissioner issued under this section may appeal to the Superior Court by filing within 30 days from the effective date of such order a complaint therefor and the court shall fix a time and place of hearing and cause notice thereof of the time and place to be given to the commissioner and, after the hearing, the court may affirm or reverse in full or in part any such order of the commissioner and the decision of the court shall be is final. If the commissioner in the interest of public safety, because he deems the commissioner determines there is immediate danger, forbids the use of such buildings for any public purpose until satisfactory compliance with his the commissioner's order, such order shall become immediately becomes effective immediately and the filing of the complaint shall may not operate as a stay thereof.
Effective September 18, 1999, unless otherwise indicated.
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