Missouri Revised Statutes

198.003. Sections 198.003 to 198.186 shall be known and may be cited as the "Omnibus Nursing Home Act".

(L. 1979 S.B. 328, et al. § 2)

198.005. The term "residential care facility I" shall be referred to as a "residential care facility", and the term "residential care facility II" shall be referred to as "assisted living facility". The revisor of statutes shall make the appropriate changes to all such references in the revised statutes, except that references to residential care facilities as defined in section 210.481, RSMo, or residential facilities licensed by the department of mental health shall not be changed.

(L. 2006 S.B. 616)

*Revisor's note: The following sections containing references to "residential care facility", "residential care facilities", "residential facility", or "residential facilities" were not changed:

115.287, 135.600, 167.020, 167.183, 191.656, 197.318, 199.033, 199.041, 199.043, 208.152, 210.150, 210.211, 210.481, 210.484, 210.485, 210.486, 210.491, 210.496, 210.501, 210.506, 210.511, 210.516, 210.900, 211.063, 219.021, 355.066, 355.626, 404.830, 404.835, 631.050, 632.005, 633.025, 633.110, 633.115, 660.050, 660.115, 660.317, and all references in chapter 630.

198.006. As used in sections 198.003 to 198.186, unless the context clearly indicates otherwise, the following terms mean:

(1) "Abuse", the infliction of physical, sexual, or emotional injury or harm;

(2) "Activities of daily living" or "ADL", one or more of the following activities of daily living:

(a) Eating;

(b) Dressing;

(c) Bathing;

(d) Toileting;

(e) Transferring; and

(f) Walking;

(3) "Administrator", the person who is in general administrative charge of a facility;

(4) "Affiliate":

(a) With respect to a partnership, each partner thereof;

(b) With respect to a limited partnership, the general partner and each limited partner with an interest of five percent or more in the limited partnership;

(c) With respect to a corporation, each person who owns, holds or has the power to vote five percent or more of any class of securities issued by the corporation, and each officer and director;

(d) With respect to a natural person, any parent, child, sibling, or spouse of that person;

(5) "Appropriately trained and qualified individual", an individual who is licensed or registered with the state of Missouri in a health care-related field or an individual with a degree in a health care-related field or an individual with a degree in a health care, social services, or human services field or an individual licensed under chapter 344, RSMo, and who has received facility orientation training under 19 CSR 30-86042(18), and dementia training under section 660.050, RSMo, and twenty-four hours of additional training, approved by the department, consisting of definition and assessment of activities of daily living, assessment of cognitive ability, service planning, and interview skills;

(6) "Assisted living facility", any premises, other than a residential care facility, intermediate care facility, or skilled nursing facility, that is utilized by its owner, operator, or manager to provide twenty-four-hour care and services and protective oversight to three or more residents who are provided with shelter, board, and who may need and are provided with the following:

(a) Assistance with any activities of daily living and any instrumental activities of daily living;

(b) Storage, distribution, or administration of medications; and

(c) Supervision of health care under the direction of a licensed physician, provided that such services are consistent with a social model of care;

Such term shall not include a facility where all of the residents are related within the fourth degree of consanguinity or affinity to the owner, operator, or manager of the facility;

(7) "Community-based assessment", documented basic information and analysis provided by appropriately trained and qualified individuals describing an individual's abilities and needs in activities of daily living, instrumental activities of daily living, vision/hearing, nutrition, social participation and support, and cognitive functioning using an assessment tool approved by the department of health and senior services that is designed for community-based services and that is not the nursing home minimum data set;

(8) "Dementia", a general term for the loss of thinking, remembering, and reasoning so severe that it interferes with an individual's daily functioning, and may cause symptoms that include changes in personality, mood, and behavior;

(9) "Department", the Missouri department of health and senior services;

(10) "Emergency", a situation, physical condition or one or more practices, methods or operations which presents imminent danger of death or serious physical or mental harm to residents of a facility;

(11) "Facility", any residential care facility, assisted living facility, intermediate care facility, or skilled nursing facility;

(12) "Health care provider", any person providing health care services or goods to residents and who receives funds in payment for such goods or services under Medicaid;

(13) "Instrumental activities of daily living", or "IADL", one or more of the following activities:

(a) Preparing meals;

(b) Shopping for personal items;

(c) Medication management;

(d) Managing money;

(e) Using the telephone;

(f) Housework; and

(g) Transportation ability;

(14) "Intermediate care facility", any premises, other than a residential care facility, assisted living facility, or skilled nursing facility, which is utilized by its owner, operator, or manager to provide twenty-four-hour accommodation, board, personal care, and basic health and nursing care services under the daily supervision of a licensed nurse and under the direction of a licensed physician to three or more residents dependent for care and supervision and who are not related within the fourth degree of consanguinity or affinity to the owner, operator or manager of the facility;

(15) "Manager", any person other than the administrator of a facility who contracts or otherwise agrees with an owner or operator to supervise the general operation of a facility, providing such services as hiring and training personnel, purchasing supplies, keeping financial records, and making reports;

(16) "Medicaid", medical assistance under section 208.151, RSMo, et seq., in compliance with Title XIX, Public Law 89-97, 1965 amendments to the Social Security Act (42 U.S.C. 301, et seq.), as amended;

(17) "Neglect", the failure to provide, by those responsible for the care, custody, and control of a resident in a facility, the services which are reasonable and necessary to maintain the physical and mental health of the resident, when such failure presents either an imminent danger to the health, safety or welfare of the resident or a substantial probability that death or serious physical harm would result;

(18) "Operator", any person licensed or required to be licensed under the provisions of sections 198.003 to 198.096 in order to establish, conduct or maintain a facility;

(19) "Owner", any person who owns an interest of five percent or more in:

(a) The land on which any facility is located;

(b) The structure or structures in which any facility is located;

(c) Any mortgage, contract for deed, or other obligation secured in whole or in part by the land or structure in or on which a facility is located; or

(d) Any lease or sublease of the land or structure in or on which a facility is located.

"Owner" does not include a holder of a debenture or bond purchased at public issue nor does it include any regulated lender unless the entity or person directly or through a subsidiary operates a facility;

(20) "Protective oversight", an awareness twenty-four hours a day of the location of a resident, the ability to intervene on behalf of the resident, the supervision of nutrition, medication, or actual provisions of care, and the responsibility for the welfare of the resident, except where the resident is on voluntary leave;

(21) "Resident", a person who by reason of aging, illness, disease, or physical or mental infirmity receives or requires care and services furnished by a facility and who resides or boards in or is otherwise kept, cared for, treated or accommodated in such facility for a period exceeding twenty-four consecutive hours;

(22) "Residential care facility", any premises, other than an assisted living facility, intermediate care facility, or skilled nursing facility, which is utilized by its owner, operator or manager to provide twenty-four-hour care to three or more residents, who are not related within the fourth degree of consanguinity or affinity to the owner, operator, or manager of the facility and who need or are provided with shelter, board, and with protective oversight, which may include storage and distribution or administration of medications and care during short-term illness or recuperation, except that, for purposes of receiving supplemental welfare assistance payments under section 208.030, RSMo, only any residential care facility licensed as a residential care facility II immediately prior to August 28, 2006, and that continues to meet such licensure requirements for a residential care facility II licensed immediately prior to August 28, 2006, shall continue to receive after August 28, 2006, the payment amount allocated immediately prior to August 28, 2006, for a residential care facility II under section 208.030;

(23) "Skilled nursing facility", any premises, other than a residential care facility, an assisted living facility, or an intermediate care facility, which is utilized by its owner, operator or manager to provide for twenty-four-hour accommodation, board and skilled nursing care and treatment services to at least three residents who are not related within the fourth degree of consanguinity or affinity to the owner, operator or manager of the facility. Skilled nursing care and treatment services are those services commonly performed by or under the supervision of a registered professional nurse for individuals requiring twenty-four-hours-a-day care by licensed nursing personnel including acts of observation, care and counsel of the aged, ill, injured or infirm, the administration of medications and treatments as prescribed by a licensed physician or dentist, and other nursing functions requiring substantial specialized judgment and skill;

(24) "Social model of care", long-term care services based on the abilities, desires, and functional needs of the individual delivered in a setting that is more home-like than institutional and promotes the dignity, individuality, privacy, independence, and autonomy of the individual. Any facility licensed as a residential care facility II prior to August 28, 2006, shall qualify as being more home-like than institutional with respect to construction and physical plant standards;

(25) "Vendor", any person selling goods or services to a health care provider;

(26) "Voluntary leave", an off-premise leave initiated by:

(a) A resident that has not been declared mentally incompetent or incapacitated by a court; or

(b) A legal guardian of a resident that has been declared mentally incompetent or incapacitated by a court.

(L. 1979 S.B. 328, et al. § 3, A.L. 1984 S.B. 451, A.L. 1987 S.B. 277, A.L. 2003 S.B. 534 merged with S.B. 556 & 311, A.L. 2006 S.B. 616)

198.009. 1. The provisions of sections 198.003 to 198.186 shall be administered by the department. The department shall have authority to promulgate rules and regulations for the purposes of administering sections 198.003 to 198.186. All such rules and regulations shall be promulgated in accordance with this section and chapter 536, RSMo. No rule or portion of a rule promulgated under the authority of this chapter shall become effective unless it has been promulgated pursuant to the provisions of section 536.024, RSMo.

2. All agencies of the state or any of its political subdivisions shall assist and cooperate with the department whenever necessary to carry out the department's responsibility under sections 198.003 to 198.186.

(L. 1979 S.B. 328, et al. § 4, A.L. 1993 S.B. 52, A.L. 1995 S.B. 3)

198.012. 1. The provisions of sections 198.003 to 198.136 shall not apply to any of the following entities:

(1) Any hospital, facility or other entity operated by the state or the United States;

(2) Any facility or other entity otherwise licensed by the state and operating exclusively under such license and within the limits of such license, unless the activities and services are or are held out as being activities or services normally provided by a licensed facility under sections 198.003 to 198.186, 198.200, 208.030, and 208.159, RSMo, except hospitals licensed under the provisions of chapter 197, RSMo;

(3) Any hospital licensed under the provisions of chapter 197, RSMo, provided that the assisted living facility, intermediate care facility or skilled nursing facility are physically attached to the acute care hospital; and provided further that the department of health and senior services in promulgating rules, regulations and standards pursuant to section 197.080, RSMo, with respect to such facilities, shall establish requirements and standards for such hospitals consistent with the intent of this chapter, and sections 198.067, 198.070, 198.090, 198.093 and 198.139 to 198.180 shall apply to every assisted living facility, intermediate care facility or skilled nursing facility regardless of physical proximity to any other health care facility;

(4) Any facility licensed pursuant to sections 630.705 to 630.760, RSMo, which provides care, treatment, habilitation and rehabilitation exclusively to persons who have a primary diagnosis of mental disorder, mental illness, mental retardation or developmental disabilities, as defined in section 630.005, RSMo;

(5) Any provider of care under a life care contract, except to any portion of the provider's premises on which the provider offers services provided by an intermediate care facility or skilled nursing facility as defined in section 198.006. For the purposes of this section, "provider of care under a life care contract" means any person contracting with any individual to furnish specified care and treatment to the individual for the life of the individual, with significant prepayment for such care and treatment.

2. Nothing in this section shall prohibit any of these entities from applying for a license under sections 198.003 to 198.136.

(L. 1979 S.B. 328, et al. § 5, A.L. 1980 H.B. 1724, A.L. 1982 S.B. 698, A.L. 1984 S.B. 451, A.L. 1988 S.B. 602, A.L. 1989 H.B. 210)

*Reprinted due to editorial change required by § 198.005.

CROSS REFERENCE:

Missouri veterans homes, nursing home license not required, RSMo 42.130

198.015. 1. No person shall establish, conduct or maintain a residential care facility, assisted living facility, intermediate care facility, or skilled nursing facility in this state without a valid license issued by the department. Any person violating this subsection is guilty of a class A misdemeanor. Any person violating this subsection wherein abuse or neglect of a resident of the facility has occurred is guilty of a class D felony. The department of health and senior services shall investigate any complaint concerning operating unlicensed facilities. For complaints alleging abuse or neglect, the department shall initiate an investigation within twenty-four hours. All other complaints regarding unlicensed facilities shall be investigated within forty-five days.

2. If the department determines the unlicensed facility is in violation of sections 198.006 to 198.186, the department shall immediately notify the local prosecuting attorney or attorney general's office.

3. Each license shall be issued only for the premises and persons named in the application. A license, unless sooner revoked, shall be issued for a period of up to two years, in order to coordinate licensure with certification in accordance with section 198.045.

4. If during the period in which a license is in effect, a licensed operator which is a partnership, limited partnership, or corporation undergoes any of the following changes, or a new corporation, partnership, limited partnership or other entity assumes operation of a facility whether by one or by more than one action, the current operator shall notify the department of the intent to change operators and the succeeding operator shall within ten working days of such change apply for a new license:

(1) With respect to a partnership, a change in the majority interest of general partners;

(2) With respect to a limited partnership, a change in the general partner or in the majority interest of limited partners;

(3) With respect to a corporation, a change in the persons who own, hold or have the power to vote the majority of any class of securities issued by the corporation.

5. Licenses shall be posted in a conspicuous place on the licensed premises.

6. Any license granted shall state the maximum resident capacity for which granted, the person or persons to whom granted, the date, the expiration date, and such additional information and special limitations as the department by rule may require.

7. The department shall notify the operator at least sixty days prior to the expiration of an existing license of the date that the license application is due. Application for a license shall be made to the department at least thirty days prior to the expiration of any existing license.

8. The department shall grant an operator a temporary operating permit in order to allow for state review of the application and inspection for the purposes of relicensure if the application review and inspection process has not been completed prior to the expiration of a license and the operator is not at fault for the failure to complete the application review and inspection process.

9. The department shall grant an operator a temporary operating permit of sufficient duration to allow the department to evaluate any application for a license submitted as a result of any change of operator.

(L. 1979 S.B. 328, et al. § 6, A.L. 1984 S.B. 451, A.L. 1987 S.B. 277, A.L. 1988 S.B. 602, A.L. 1994 H.B. 1335 & 1381, A.L. 1999 S.B. 326, A.L. 2003 S.B. 556 & 311)

*Editorial change required by § 198.005.

CROSS REFERENCES:

License for administrator of assisted living facilities required, limitations, RSMo 344.020

Skilled nursing care facilities, a license for assisted living facilities insufficient, RSMo 344.020

198.018. 1. Applications for a license shall be made to the department by the operator upon such forms and including such information and documents as the department may reasonably require by rule or regulation for the purposes of administering sections 198.003 to 198.186, section 198.200, and sections 208.030 and 208.159, RSMo.

2. The applicant shall submit all documents required by the department under this section attesting by signature that the statements contained in the application are true and correct to the best of the applicant's knowledge and belief, and that all required documents are either included with the application or are currently on file with the department.

3. The application shall be accompanied by a license fee in an amount established by the department. The fee established by the department shall not exceed six hundred dollars, and shall be a graduated fee based on the licensed capacity of the applicant and the duration of the license. A fee of not more than fifty dollars shall be charged for any amendments to a license initiated by an applicant. In addition, facilities certified to participate in the Medicaid or Medicare programs shall pay a certification fee of up to one thousand dollars annually, payable on or before October first of each year. The amount remitted for the license fee, fee for amendments to a license, or certification fee shall be deposited in the state treasury to the credit of the "Nursing Facility Quality of Care Fund", which is hereby created. All investment earnings of the nursing facility quality of care fund shall be credited to such fund. All moneys in the nursing facility quality of care fund shall, upon appropriation, be used by the division of aging for conducting inspections and surveys, and providing training and technical assistance to facilities licensed under the provisions of this chapter. The unexpended balance in the nursing facility quality of care fund at the end of the biennium is exempt from the provisions of sections 33.080, RSMo. The unexpended balance in the nursing facility quality of care fund shall not revert to the general revenue fund, but shall accumulate in the nursing facility quality of care fund from year to year.

4. Within ten working days of the effective date of any document that replaces, succeeds, or amends any of the documents required by the department to be filed pursuant to this section, an operator shall file with the department a copy of such document. The operator shall attest by signature that the document is true and correct. If the operator knowingly fails to file a required document or provide any information amending any document within the time provided for in this section, a circuit court may, upon application of the department or the attorney general, assess a penalty of up to fifty dollars per document for each day past the required date of filing.

5. If an operator fails to file documents or amendments to documents as required pursuant to this section and such failure is part of a pattern or practice of concealment, such failure shall be sufficient grounds for revocation of a license or disapproval of an application for a license.

6. Any facility defined in subdivision (8), (15), (16) or (17) of section 198.006 that is licensed by the state of Missouri pursuant to the provisions of section 198.015 may not be licensed, certified or registered by any other political subdivision of the state of Missouri whether or not it has taxing power, provided, however, that nothing in this subsection shall prohibit a county or city, otherwise empowered under law, to inspect such facility for compliance with local ordinances of food service or fire safety.

(L. 1979 S.B. 328, et al. § 7, A.L. 1984 S.B. 451, A.L. 1987 S.B. 277, A.L. 1988 S.B. 602, A.L. 1994 H.B. 1335 & 1381, A.L. 2007 S.B. 397)

198.022. 1. Upon receipt of an application for a license to operate a facility, the department shall review the application, investigate the applicant and the statements sworn to in the application for license and conduct any necessary inspections. A license shall be issued if the following requirements are met:

(1) The statements in the application are true and correct;

(2) The facility and the operator are in substantial compliance with the provisions of sections 198.003 to 198.096 and the standards established thereunder;

(3) The applicant has the financial capacity to operate the facility;

(4) The administrator of an assisted living facility, a skilled nursing facility, or an intermediate care facility is currently licensed under the provisions of chapter 344, RSMo;

(5) Neither the operator nor any principals in the operation of the facility have ever been convicted of a felony offense concerning the operation of a long-term health care facility or other health care facility or ever knowingly acted or knowingly failed to perform any duty which materially and adversely affected the health, safety, welfare or property of a resident, while acting in a management capacity. The operator of the facility or any principal in the operation of the facility shall not be under exclusion from participation in the Title XVIII (Medicare) or Title XIX (Medicaid) program of any state or territory;

(6) Neither the operator nor any principals involved in the operation of the facility have ever been convicted of a felony in any state or federal court arising out of conduct involving either management of a long-term care facility or the provision or receipt of health care;

(7) All fees due to the state have been paid.

2. Upon denial of any application for a license, the department shall so notify the applicant in writing, setting forth therein the reasons and grounds for denial.

3. The department may inspect any facility and any records and may make copies of records, at the facility, at the department's own expense, required to be maintained by sections 198.003 to 198.096 or by the rules and regulations promulgated thereunder at any time if a license has been issued to or an application for a license has been filed by the operator of such facility. Copies of any records requested by the department shall be prepared by the staff of such facility within two business days or as determined by the department. The department shall not remove or disassemble any medical record during any inspection of the facility, but may observe the photocopying or may make its own copies if the facility does not have the technology to make the copies. In accordance with the provisions of section 198.525, the department shall make at least two inspections per year, at least one of which shall be unannounced to the operator. The department may make such other inspections, announced or unannounced, as it deems necessary to carry out the provisions of sections 198.003 to 198.136.

4. Whenever the department has reasonable grounds to believe that a facility required to be licensed under sections 198.003 to 198.096 is operating without a license, and the department is not permitted access to inspect the facility, or when a licensed operator refuses to permit access to the department to inspect the facility, the department shall apply to the circuit court of the county in which the premises is located for an order authorizing entry for such inspection, and the court shall issue the order if it finds reasonable grounds for inspection or if it finds that a licensed operator has refused to permit the department access to inspect the facility.

5. Whenever the department is inspecting a facility in response to an application from an operator located outside of Missouri not previously licensed by the department, the department may request from the applicant the past five years compliance history of all facilities owned by the applicant located outside of this state.

(L. 1979 S.B. 328, et al. § 8, A.L. 1984 S.B. 451, A.L. 1988 S.B. 602, A.L. 1994 H.B. 1335 & 1381, A.L. 2003 S.B. 556 & 311)

*Editorial change required by § 198.005.

198.026. 1. Whenever a duly authorized representative of the department finds upon an inspection of a facility that it is not in compliance with the provisions of sections 198.003 to 198.096 and the standards established thereunder, the operator or administrator shall be informed of the deficiencies in an exit interview conducted with the operator or administrator or his designee. The department shall inform the operator or administrator, in writing, of any violation of a class I standard at the time the determination is made. A written report shall be prepared of any deficiency for which there has not been prompt remedial action, and a copy of such report and a written correction order shall be sent to the operator or administrator by certified mail or other delivery service that provides a dated receipt of delivery at the facility address within ten working days after the inspection, stating separately each deficiency and the specific statute or regulation violated.

2. The operator or administrator shall have five working days following receipt of a written report and correction order regarding a violation of a class I standard and ten working days following receipt of the report and correction order regarding violations of class II or class III standards to request any conference and to submit a plan of correction for the department's approval which contains specific dates for achieving compliance. Within five working days after receiving a plan of correction regarding a violation of a class I standard and within ten working days after receiving a plan of correction regarding a violation of a class II or III standard, the department shall give its written approval or rejection of the plan. If there was a violation of any class I standard, immediate corrective action shall be taken by the operator or administrator and a written plan of correction shall be submitted to the department. The department shall give its written approval or rejection of the plan and if the plan is acceptable, a reinspection shall be conducted within twenty calendar days of the exit interview to determine if deficiencies have been corrected. If there was a violation of any class II standard and the plan of correction is acceptable, an unannounced reinspection shall be conducted between forty and ninety calendar days from the date of the exit conference to determine the status of all previously cited deficiencies. If there was a violation of class III standards sufficient to establish that the facility was not in substantial compliance, an unannounced reinspection shall be conducted within one hundred twenty days of the exit interview to determine the status of previously identified deficiencies.

3. If, following the reinspection, the facility is found not in substantial compliance with sections 198.003 to 198.096 and the standards established thereunder or the operator is not correcting the noncompliance in accordance with the approved plan of correction, the department shall issue a notice of noncompliance, which shall be sent by certified mail or other delivery service that provides a dated receipt of delivery to each person disclosed to be an owner or operator of the facility, according to the most recent information or documents on file with the department.

4. The notice of noncompliance shall inform the operator or administrator that the department may seek the imposition of any of the sanctions and remedies provided for in section 198.067, or any other action authorized by law.

5. At any time after an inspection is conducted, the operator may choose to enter into a consent agreement with the department to obtain a probationary license. The consent agreement shall include a provision that the operator will voluntarily surrender the license if substantial compliance is not reached in accordance with the terms and deadlines established under the agreement. The agreement shall specify the stages, actions and time span to achieve substantial compliance.

6. Whenever a notice of noncompliance has been issued, the operator shall post a copy of the notice of noncompliance and a copy of the most recent inspection report in a conspicuous location in the facility, and the department shall send a copy of the notice of noncompliance to the division of family services of the department of social services, the department of mental health, and any other concerned federal, state or local governmental agencies.

(L. 1979 S.B. 328, et al. § 9, A.L. 1984 S.B. 451, A.L. 1988 S.B. 602, A.L. 1994 H.B. 1335 & 1381)

198.027. If a facility submits satisfactory documentation that establishes correction of any deficiency contained within the written report of deficiency required by section 198.026, an on-site revisit of such deficiency may not be required.

(L. 2003 S.B. 556 & 311)

198.029. The provisions of section 198.026 notwithstanding, whenever a duly authorized representative of the department finds upon inspection of a licensed facility, and the director of the department finds upon review, that the facility or the operator is not in substantial compliance with a standard or standards the violations of which would present either an imminent danger to the health, safety or welfare of any resident or a substantial probability that death or serious physical harm would result and which is not immediately corrected, the department shall:

(1) Give immediate written notice of the noncompliance to the operator, administrator or person managing or supervising the conduct of the facility at the time the noncompliance is found;

(2) Make public the fact that a notice of noncompliance has been issued to the facility. Copies of the notice shall be sent to appropriate hospitals and social service agencies;

(3) Send a copy of the notice of noncompliance to the division of family services of the department of social services, the department of mental health, and any other concerned federal, state or local government agencies. The facility shall post in a conspicuous location in the facility a copy of the notice of noncompliance and a copy of the most recent inspection report.

(L. 1979 S.B. 328, et al. § 10)

198.030. Every residential care facility, assisted living facility, intermediate care facility, and skilled nursing facility shall post the most recent inspection report of the facility in a conspicuous place. If the operator determines that the inspection report of the facility contains individually identifiable health information, the operator may redact such information prior to posting the inspection report.

(L. 2003 S.B. 556 & 311)

*Editorial change required by § 198.005.

198.032. 1. Nothing contained in sections 198.003 to 198.186 shall permit the public disclosure by the department of confidential medical, social, personal or financial records of any resident in any facility, except when disclosed in a manner which does not identify any resident, or when ordered to do so by a court of competent jurisdiction. Such records shall be accessible without court order for examination and copying only to the following persons or offices, or to their designees:

(1) The department or any person or agency designated by the department;

(2) The attorney general;

(3) The department of mental health for residents placed through that department;

(4) Any appropriate law enforcement agency;

(5) The resident, the resident's guardian, or any other person designated by the resident; and

(6) Appropriate committees of the general assembly and the state auditor, but only to the extent of financial records which the operator is required to maintain pursuant to sections 198.088 and 198.090.

2. Inspection reports and written reports of investigations of complaints, of substantiated reports of abuse and neglect received in accordance with section 198.070, and complaints received by the department relating to the quality of care of facility residents, shall be accessible to the public for examination and copying, provided that such reports are disclosed in a manner which does not identify the complainant or any particular resident. Records and reports shall clearly show what steps the department and the institution are taking to resolve problems indicated in said inspections, reports and complaints.

3. The department shall maintain a central registry capable of receiving and maintaining reports received in a manner that facilitates rapid access and recall of the information reported, and of subsequent investigations and other relevant information. The department shall electronically record and maintain a hotline caller log for the reporting of suspected abuse and neglect in long-term care facilities. Any telephone report of suspected abuse and neglect received by the department and such recorded reports shall be retained by the department for a period of one year after recording. The department shall in all cases attempt to obtain the name of any person making a report after obtaining relevant information regarding the alleged abuse or neglect. The department shall also attempt to obtain the address of any person making a report. The identity of the person making the report shall remain confidential.

(L. 1979 S.B. 328, et al. § 11, A.L. 1987 S.B. 277, A.L. 2003 S.B. 556 & 311)

198.036. 1. The department may revoke a license in any case in which it finds that:

(1) The operator failed or refused to comply with class I or II standards, as established by the department pursuant to section 198.085; or failed or refused to comply with class III standards as established by the department pursuant to section 198.085, where the aggregate effect of such noncompliances presents either an imminent danger to the health, safety or welfare of any resident or a substantial probability that death or serious physical harm would result;

(2) The operator refused to allow representatives of the department to inspect the facility for compliance with standards or denied representatives of the department access to residents and employees necessary to carry out the duties set forth in this chapter and rules promulgated thereunder, except where employees of the facility are in the process of rendering immediate care to a resident of such facility;

(3) The operator knowingly acted or knowingly omitted any duty in a manner which would materially and adversely affect the health, safety, welfare or property of a resident;

(4) The operator demonstrated financial incapacity to operate and conduct the facility in accordance with the provisions of sections 198.003 to 198.096;

(5) The operator or any principals in the operation of the facility have ever been convicted of, or pled guilty or nolo contendere to a felony offense concerning the operation of a long-term health care facility or other health care facility, or ever knowingly acted or knowingly failed to perform any duty which materially and adversely affected the health, safety, welfare, or property of a resident while acting in a management capacity. The operator of the facility or any principal in the operation of the facility shall not be under exclusion from participation in the Title XVIII (Medicare) or Title XIX (Medicaid) program of any state or territory; or

(6) The operator or any principals involved in the operation of the facility have ever been convicted of or pled guilty or nolo contendere to a felony in any state or federal court arising out of conduct involving either management of a long-term care facility or the provision or receipt of health care.

2. Nothing in subdivision (2) of subsection 1 of this section shall be construed as allowing the department access to information not necessary to carry out the duties set forth in sections 198.006 to 198.186.

3. Upon revocation of a license, the director of the department shall so notify the operator in writing, setting forth the reason and grounds for the revocation. Notice of such revocation shall be sent either by certified mail, return receipt requested, to the operator at the address of the facility, or served personally upon the operator. The department shall provide the operator notice of such revocation at least ten days prior to its effective date.

(L. 1979 S.B. 328, et al. § 12, A.L. 2003 S.B. 556 & 311)

(1987) It has been held that the legislature did not intend that a single non-life-threatening incident would be sufficient to justify a license revocation under this section. Villines v. Division of Aging, 722 S.W.2d 939 (Mo. banc).

198.039. 1. Any person aggrieved by an official action of the department either refusing to issue a license or revoking a license may seek a determination thereon by the administrative hearing commission pursuant to the provisions of section 621.045, RSMo, et seq., except that the petition must be filed with the administrative hearing commission within fifteen days after the mailing or delivery of notice to the operator. It shall not be a condition to such determination that the person aggrieved seek a reconsideration, a rehearing or exhaust any other procedure within the department.

2. The administrative hearing commission may stay the revocation of such license, pending the commission's findings and determination in the cause, upon such conditions as the commission deems necessary and appropriate including the posting of bond or other security except that the commission shall not grant a stay or if a stay has already been entered shall set aside its stay, if upon application of the department the commission finds reason to believe that continued operation of a facility pending the commission's final determination would present an imminent danger to the health, safety or welfare of any resident or a substantial probability that death or serious physical harm would result. In any case in which the department has refused to issue a license, the commission shall have no authority to stay or to require the issuance of a license pending final determination by the commission.

3. The administrative hearing commission shall make the final decision as to the issuance or revocation of a license. Any person aggrieved by a final decision of the administrative hearing commission, including the department, may seek judicial review of such decision by filing a petition for review in the court of appeals for the district in which the facility is located. Review shall be had, except as modified herein, in accordance with the provisions of sections 621.189 and 621.193, RSMo.

(L. 1979 S.B. 328, et al. § 13)

198.042. Nothing in sections 198.003 to 198.096, or the rules and regulations adopted pursuant thereto, shall be construed as authorizing the medical supervision, regulation or control of the remedial care or treatment of those residents who rely solely upon treatment by prayer or spiritual means in accordance with creed or tenets of any well-recognized church or religious denomination. All remaining rules and regulations and minimum standards not in conflict with this section shall apply.

(L. 1979 S.B. 328, et al. § 14)

198.045. Participation in reimbursement programs under either Medicare or Medicaid, Title XVIII and Title XIX of the Social Security Act, (Title 42, United States Code, Sec. 1395x or 1396d), or other federal laws, shall be at the option of the individual facility. A skilled nursing facility or an intermediate care facility which chooses to participate in such programs shall be surveyed for certification for reimbursement and inspected for state licensure at the same time.

(L. 1979 S.B. 328, et al. § 15)

198.048. A skilled nursing, intermediate care, assisted living facility, or residential care facility may exist on the same premises under the following circumstances:

(1) The skilled nursing, intermediate care, assisted living facility or residential care facility is an identifiable unit thereof, such as an entire ward or contiguous wards, wing or floor of a building or a separate contiguous building and such identifiable unit is approved in writing by the department;

(2) The identifiable unit meets all the reasonable standards for such facility;

(3) Central services and facilities such as management services, nursing and other patient-care services, building maintenance and laundry which are shared with other units are determined to be sufficient to meet the reasonable standards for such a facility.

(L. 1979 S.B. 328, et al. § 16, A.L. 1984 S.B. 451)

*Reprinted due to editorial change required by § 198.005.

198.052. 1. The state auditor, at the request of the department or on his own initiative, may examine and audit any records relating to the operation of any facility.

2. The director of the department may examine and audit, or cause to be examined and audited, any records relating to the operation of any facility.

3. Each facility shall retain all financial information, data and records relating to the operation and reimbursement of the facility for a period of not less than seven years.

4. Notwithstanding anything to the contrary in sections 198.003 to 198.186, 198.200, 202.905, 208.030, or 208.159, RSMo, the state auditor shall have the right to examine the records of any facility which he deems necessary in connection with any examination conducted pursuant to his statutory authority, and to disclose the results of any such examination including the identity of any facility examined, provided that the identity of any resident of any such facility shall not be divulged or made known by the state auditor.

5. All financial information, data and records of facilities under the provisions of sections 198.003 to 198.186, 198.200, 202.905, 208.030, or 208.159, RSMo, shall be open upon request for inspection, examination and audit by the director of the department, the state auditor, appropriate committees of the general assembly, and their designees, at all reasonable times.

6. Each facility shall retain medical records of each resident for five years after he leaves the facility. In the event the resident is less than twenty-one years of age, the records shall be retained for five years after the age of twenty-one years is reached. The time limitations of this subsection shall not apply when longer time limitations are specified in standards for facilities certified under Medicare or Medicaid, Title XVIII and Title XIX of the Social Security Act, (Title 42, United States Code, Sec. 1395x or 1396d).

7. In the event a new operator takes over a facility's operation, the original medical records of the residents of such facility shall be retained in the facility by the new operator.

8. In the event a resident is transferred from the facility, the resident shall be accompanied by a copy of his medical records.

(L. 1979 S.B. 328, et al. § 17)

198.055. A facility may provide accommodations, board, health care or treatment, or personal services for residents placed through the department of mental health. Inspections made pursuant to provisions of sections 198.003 to 198.096 shall also serve as the inspections required under the provisions of chapter 630, RSMo, except for inspections and visits to determine appropriateness of resident placement, to develop and review treatment plans, and to monitor the conditions and status of residents.

(L. 1979 S.B. 328, et al. § 18, A.L. 1984 S.B. 451)

198.058. Any facility licensed under chapter 197, RSMo, or chapter 198, which is in operation before September 28, 1979, or whose application is on file, or whose construction plans have been approved by the department before September 28, 1979, shall be exempt from construction standards developed by the department subsequent to the date such facility became first licensed and including those construction standards developed after September 28, 1979, for buildings or other physical units which were in existence or under construction on September 28, 1979. Such facilities shall be licensed in accordance with all other standards and regulations promulgated under sections 198.003 to 198.096. The department shall survey all such facilities and shall prepare a report for submission to the general assembly on actions and standards necessary to bring such facilities into full compliance. The report shall be filed with the speaker of the house and the president pro tem of the senate by January 1, 1982.

(L. 1979 S.B. 328, et al. § 19)

198.061. 1. No person shall, jointly or severally, offer, advertise or hold out to the public, services subject to section 198.015 without a currently valid appropriate license issued by the department to render the particular services.

2. No person, jointly or severally, shall interfere with or prevent any duly authorized representative of the department or the attorney general from lawful enforcement of sections 198.003 to 198.186, 198.200, 202.905, 208.030, or 208.159, RSMo.

3. Any person violating any provision of this section shall be guilty of a class C misdemeanor.

(L. 1979 S.B. 328, et al. § 20)

198.064. 1. No operator shall retain any duplicate payment for the care of a resident received from any state agency or agencies. For the purposes of this section a duplicate payment is one which results in a total payment to the operator in excess of the per diem or monthly rate authorized by the agency or agencies. The operator shall report all such duplicate payments to the paying agency or agencies within five business days after such duplicate payment is discovered or reasonably should have been discovered.

2. The operator shall repay the excess amount in accordance with such procedures as the paying agency or agencies shall reasonably require, together with interest at the rate of one and five-tenths percent per month from the date the duplicate payment was discovered or reasonably should have been discovered.

(L. 1979 S.B. 328, et al. § 21)

198.066. To encourage compliance with the provisions of this chapter and any rules promulgated thereto, the department of health and senior services shall impose sanctions commensurate with the seriousness of the violation which occurred. For class I, II, or III violations, the following remedies may be imposed:

(1) A plan of correction;

(2) Additional directed staff training;

(3) State monitoring;

(4) A directed plan of correction;

(5) Denial of payment for new Medicaid admissions;

(6) A probationary license and consent agreement as described in section 198.026;

(7) Recovery of civil monetary penalties pursuant to section 198.067;

(8) Denial of payment for all new admissions;

(9) Receivership pursuant to section 198.105; or

(10) License revocation.

(L. 2003 S.B. 556 & 311)

198.067. 1. An action may be brought by the department, or by the attorney general on his or her own volition or at the request of the department or any other appropriate state agency, to temporarily or permanently enjoin or restrain any violation of sections 198.003 to 198.096, to enjoin the acceptance of new residents until substantial compliance with sections 198.003 to 198.096 is achieved, or to enjoin any specific action or practice of the facility. Any action brought pursuant to the provisions of this section shall be placed at the head of the docket by the court, and the court shall hold a hearing on any action brought pursuant to the provisions of this section no less than fifteen days after the filing of the action.

2. The department may bring an action in circuit court to recover a civil penalty against the licensed operator of the facility as provided by this section. Such action shall be brought in the circuit court for the county in which the facility is located. The circuit court shall determine the amount of penalty to be assessed within the limits set out in this section. Appeals may be taken from the judgment of the circuit court as in other civil cases.

3. The operator of any facility which has been cited with a violation of sections 198.003 to 198.096 or the regulations established pursuant thereto, or of subsection (b), (c), or (d) of Section 1396r of Title 42 of the United States Code or the regulations established pursuant thereto, is liable to the state for civil penalties of up to twenty-five thousand dollars for each day that the violations existed or continue to exist. Violations shall be presumed to continue to exist from the time they are found until the time the department of health and senior services finds them to have been corrected. When applicable, the amount of the penalty shall be determined as follows:

(1) For each violation of a class I standard when applicable pursuant to subdivision (6) of this subsection, not less than one thousand dollars nor more than ten thousand dollars;

(2) For each violation of a class II standard, not less than two hundred fifty dollars nor more than one thousand dollars;

(3) For each violation of a class III standard, not less than fifty dollars nor more than two hundred fifty dollars;

(4) For each violation of a federal standard which does not also constitute a violation of a state law or regulation, not less than two hundred fifty dollars nor more than five hundred dollars;

(5) For each specific class I violation by the same operator at a particular facility which has been previously cited within the past twenty-four months and for each specific class II or III violation by the same operator at a particular facility which has been previously cited within the past twelve months, double the amount last imposed;

(6) In accordance with the provisions of this section, if the department imposes a civil monetary penalty for a class I violation, the liability for such penalty shall be incurred immediately upon the imposition of the penalty for the violation regardless of any subsequent correction of the violation by the facility. For class II or III violations, if the department imposes a civil monetary penalty, the liability for such penalty shall be incurred if a breach of a specific state or federal standard or statute remains uncorrected and not in accord with the accepted plan of correction at the time of the reinspection conducted pursuant to subsection 3 of section 198.026 or the regulations established pursuant to Title 42 of the United States Code.

A judgment rendered against the operator of a facility pursuant to this subsection shall bear interest as provided in subsection 1 of section 408.040, RSMo.

4. Any individual who willfully and knowingly certifies pursuant to subsection (b)(3)(B)(i) of Section 1396r of Title 42 of the United States Code a material and false statement in a resident assessment is subject to a civil penalty of not more than one thousand dollars with respect to each assessment. Any individual who willfully and knowingly causes another individual to certify pursuant to subsection (b)(3)(B)(i) of Section 1396r of Title 42 of the United States Code a material and false statement in a resident assessment is subject to a civil penalty of not more than five thousand dollars with respect to each assessment.

5. The imposition of any remedy provided for in sections 198.003 to 198.186 shall not bar the imposition of any other remedy.

6. Twenty-five percent of the penalties collected pursuant to this section shall be deposited in the elderly home-delivered meals trust fund as established in section 143.1002, RSMo. Twenty-five percent of the penalties collected pursuant to this section shall be deposited in the nursing facility quality of care fund established in section 198.418 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, established pursuant to section 660.603, RSMo. The remaining fifty percent of the penalties collected pursuant to this section shall be deposited into the nursing facility quality of care fund to be used by the department for the sole purpose of developing a program to assist qualified nursing facilities to improve the quality of service to their residents. The director of the department shall, by rule, develop a definition of qualified facilities and shall establish procedures for the selection of qualified facilities. Any rule or portion of a rule, as that term is defined in section 536.010, RSMo, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536, RSMo, and, if applicable, section 536.028, RSMo. This section and chapter 536, RSMo, are nonseverable and if any* of the powers vested with the general assembly pursuant to chapter 536, RSMo, to review, to delay the effective date, or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2003, shall be invalid and void. Such penalties shall not be considered a charitable contribution for tax purposes.

7. To recover any civil penalty, the moving party shall prove by clear and convincing evidence that the violation occurred.

8. The licensed operator of a facility against whom an action to recover a civil penalty is brought pursuant to this section may confess judgment as provided in section 511.070, RSMo, at any time prior to hearing. If such licensed operator agrees to confess judgment, the amount of the civil penalty recommended by the moving party in its petition shall be reduced by twenty-five percent and the confessed judgment shall be entered by the circuit court at the reduced amount.

9. The amount of any civil penalty assessed by the circuit court pursuant to this section shall be reduced by the amount of any civil monetary penalty which the licensed operator of the facility may establish it has paid pursuant to the laws of the United States for the breach of the same federal standards for which the state action is brought.

10. In addition to the civil penalties specified in subdivision (1) of subsection 3 of this section, any facility which is cited with a violation of a class I standard pursuant to subsection 1 of section 198.085, when such violation results in serious physical injury or abuse of a sexual nature pursuant to subdivision (1) of section 198.006, to any resident of that facility shall be liable to the state for a civil penalty of one hundred dollars multiplied by the number of beds licensed to the facility, up to a maximum of ten thousand dollars pursuant to subsections 1 and 2 of this section. The liability of the facility for civil penalties pursuant to this section shall be incurred immediately upon the citation of the violation and shall not be affected by any subsequent correction of the violation. For the purposes of this section, "serious physical injury" means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.

11. The department shall not impose a fine for self-reporting class II and class III violations so long as each violation is corrected within a specified period of time as determined by the department and there is no reoccurrence of the particular violation for twelve months following the date of the first self-reporting.

12. If a facility is sold or changes its operator, any civil penalty assessed shall not be sold, transferred, or otherwise assigned to the successor operator but shall remain the sole liability of the operator at the time of the violation.

(L. 1979 S.B. 328, et al. § 22, A.L. 1989 S.B. 203 & 270, A.L. 1996 H.B. 781, A.L. 1999 H.B. 316, et al. merged with S.B. 326, A.L. 2003 S.B. 556 & 311)

*Word "an" appears in original rolls.

198.069. For any resident of an assisted living facility who is released from a hospital or skilled nursing facility and returns to an assisted living facility as a resident, such resident's assisted living facility shall immediately, upon return, implement physician orders in the hospital or discharge summary, and within twenty-four hours of the patient's return to the facility, review and document such review of any physician orders related to the resident's hospital discharge care plan or the skilled nursing facility discharge care plan and modify the individual service plan for the resident accordingly. The department of health and senior services may adjust personal care units authorized as described in subsection 14 of section 208.152, RSMo, upon the effective date of the physicians orders to reflect the services required by such orders.

(L. 2007 S.B. 577)

198.070. 1. When any adult day care worker; chiropractor; Christian Science practitioner; coroner; dentist; embalmer; employee of the departments of social services, mental health, or health and senior services; employee of a local area agency on aging or an organized area agency on aging program; funeral director; home health agency or home health agency employee; hospital and clinic personnel engaged in examination, care, or treatment of persons; in-home services owner, provider, operator, or employee; law enforcement officer; long-term care facility administrator or employee; medical examiner; medical resident or intern; mental health professional; minister; nurse; nurse practitioner; optometrist; other health practitioner; peace officer; pharmacist; physical therapist; physician; physician's assistant; podiatrist; probation or parole officer; psychologist; social worker; or other person with the care of a person sixty years of age or older or an eligible adult has reasonable cause to believe that a resident of a facility has been abused or neglected, he or she shall immediately report or cause a report to be made to the department.

2. The report shall contain the name and address of the facility, the name of the resident, information regarding the nature of the abuse or neglect, the name of the complainant, and any other information which might be helpful in an investigation.

3. Any person required in subsection 1 of this section to report or cause a report to be made to the department who knowingly fails to make a report within a reasonable time after the act of abuse or neglect as required in this subsection is guilty of a class A misdemeanor.

4. In addition to the penalties imposed by this section, any administrator who knowingly conceals any act of abuse or neglect resulting in death or serious physical injury, as defined in section 565.002, RSMo, is guilty of a class D felony.

5. In addition to those persons required to report pursuant to subsection 1 of this section, any other person having reasonable cause to believe that a resident has been abused or neglected may report such information to the department.

6. Upon receipt of a report, the department shall initiate an investigation within twenty-four hours and, as soon as possible during the course of the investigation, shall notify the resident's next of kin or responsible party of the report and the investigation and further notify them whether the report was substantiated or unsubstantiated unless such person is the alleged perpetrator of the abuse or neglect. As provided in section 565.186, RSMo, substantiated reports of elder abuse shall be promptly reported by the department to the appropriate law enforcement agency and prosecutor.

7. If the investigation indicates possible abuse or neglect of a resident, the investigator shall refer the complaint together with the investigator's report to the department director or the director's designee for appropriate action. If, during the investigation or at its completion, the department has reasonable cause to believe that immediate removal is necessary to protect the resident from abuse or neglect, the department or the local prosecuting attorney may, or the attorney general upon request of the department shall, file a petition for temporary care and protection of the resident in a circuit court of competent jurisdiction. The circuit court in which the petition is filed shall have equitable jurisdiction to issue an ex parte order granting the department authority for the temporary care and protection of the resident, for a period not to exceed thirty days.

8. Reports shall be confidential, as provided pursuant to section 660.320, RSMo.

9. Anyone, except any person who has abused or neglected a resident in a facility, who makes a report pursuant to this section or who testifies in any administrative or judicial proceeding arising from the report shall be immune from any civil or criminal liability for making such a report or for testifying except for liability for perjury, unless such person acted negligently, recklessly, in bad faith or with malicious purpose. It is a crime pursuant to section 565.186 and 565.188, RSMo, for any person to purposely file a false report of elder abuse or neglect.

10. Within five working days after a report required to be made pursuant to this section is received, the person making the report shall be notified in writing of its receipt and of the initiation of the investigation.

11. No person who directs or exercises any authority in a facility shall evict, harass, dismiss or retaliate against a resident or employee because such resident or employee or any member of such resident's or employee's family has made a report of any violation or suspected violation of laws, ordinances or regulations applying to the facility which the resident, the resident's family or an employee has reasonable cause to believe has been committed or has occurred. Through the existing department information and referral telephone contact line, residents, their families and employees of a facility shall be able to obtain information about their rights, protections and options in cases of eviction, harassment, dismissal or retaliation due to a report being made pursuant to this section.

12. Any person who abuses or neglects a resident of a facility is subject to criminal prosecution under section 565.180, 565.182, or 565.184, RSMo.

13. The department shall maintain the employee disqualification list and place on the employee disqualification list the names of any persons who are or have been employed in any facility and who have been finally determined by the department pursuant to section 660.315, RSMo, to have knowingly or recklessly abused or neglected a resident. For purposes of this section only, "knowingly" and "recklessly" shall have the meanings that are ascribed to them in this section. A person acts "knowingly" with respect to the person's conduct when a reasonable person should be aware of the result caused by his or her conduct. A person acts "recklessly" when the person consciously disregards a substantial and unjustifiable risk that the person's conduct will result in serious physical injury and such disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation.

14. The timely self-reporting of incidents to the central registry by a facility shall continue to be investigated in accordance with department policy, and shall not be counted or reported by the department as a hot-line call but rather a self-reported incident. If the self-reported incident results in a regulatory violation, such incident shall be reported as a substantiated report.

(L. 1979 S.B. 328, et al. § 23, A.L. 1984 S.B. 451, A.L. 1987 S.B. 277, A.L. 1988 S.B. 602, A.L. 1990 H.B. 1370, et al., A.L. 1992 S.B. 573 & 634, A.L. 1994 H.B. 1335 & 1381, A.L. 1999 H.B. 316, et al. merged with S.B. 326, A.L. 2003 S.B. 556 & 311)

(1989) Owners and operators of nursing home were convicted of knowing neglect where they had knowledge of neglect in administration of required care; but persons may not be convicted of knowing neglect simply because of ownership or supervisory authority over a facility. (Mo. banc) State v. Dale, 775 S.W.2d 126.

(1989) Statute making it a Class D felony to knowingly abuse or neglect resident of nursing care facility, held not unconstitutionally vague. Owners or managers responsible for known abuse or neglect. State v. Dale 775 S.W.2d 126 (Mo. banc).

(1989) Where statute requires a finding of knowing neglect and "neglect" is specifically defined in § 198.006, RSMo, statutes are not unconstitutionally vague. (Mo. banc) State v. Dale, 775 S.W.2d 126.

(2003) Subsection 10 of section implicitly creates a private cause of action for nursing home district employees terminated in violation of the statute. Bachtel v. Miller County Nursing Home District, 110 S.W.3d 799 (Mo.banc).

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

(L. 2003 S.B. 556 & 311)

*Editorial change required by § 198.005.

198.073. 1. A residential care facility shall admit or retain only those persons who are capable mentally and physically of negotiating a normal path to safety using assistive devices or aids when necessary, and who may need assisted personal care within the limitations of such facilities, and who do not require hospitalization or skilled nursing care.

2. Notwithstanding the provisions of subsection 1 of this section, those persons previously qualified for residence who may have a temporary period of incapacity due to illness, surgery, or injury, which period does not exceed forty-five days, may be allowed to remain in a residential care facility or assisted living facility if approved by a physician.

3. Any facility licensed as a residential care facility II on August 27, 2006, shall be granted a license as an assisted living facility, as defined in section 198.006, on August 28, 2006, regardless of the laws, rules, and regulations for licensure as an assisted living facility as long as such facility continues to meet all laws, rules, and regulations that were in place on August 27, 2006, for a residential care facility II. At such time that the average total reimbursement, not including residents' cost-of-living increases in their benefits from the Social Security Administration after August 28, 2006, for the care of persons eligible for Medicaid in an assisted living facility is equal to or exceeds forty-one dollars per day, all facilities with a license as an assisted living facility shall meet all laws, rules, and regulations for licensure as an assisted living facility. Nothing in this section shall be construed to allow any facility that has not met the requirements of subsections 4 and 6 of this section to care for any individual with a physical, cognitive, or other impairment that prevents the individual from safely evacuating the facility.

4. Any facility licensed as an assisted living facility, as defined in section 198.006, except for facilities licensed under subsection 3 of this section, may admit or retain an individual for residency in an assisted living facility only if the individual does not require hospitalization or skilled nursing placement, and only if the facility:

(1) Provides for or coordinates oversight and services to meet the needs of the resident as documented in a written contract signed by the resident, or legal representative of the resident;

(2) Has twenty-four-hour staff appropriate in numbers and with appropriate skills to provide such services;

(3) Has a written plan for the protection of all residents in the event of a disaster, including keeping residents in place, evacuating residents to areas of refuge, evacuating residents from the building if necessary, or other methods of protection based on the disaster and the individual building design;

(4) Completes a pre-move-in screening with participation of the prospective resident;

(5) Completes for each resident a community-based assessment, as defined in subdivision (7) of section 198.006:

(a) Upon admission;

(b) At least semiannually; and

(c) Whenever a significant change has occurred in the resident's condition which may require a change in services;

(6) Based on the assessment in subsection 7 of this section and subdivision (5) of this subsection, develops an individualized service plan in partnership with the resident, or legal representative of the resident, that outlines the needs and preferences of the resident. The individualized service plan will be reviewed with the resident, or legal representative of the resident, at least annually, or when there is a significant change in the resident's condition which may require a change in services. The signatures of an authorized representative of the facility and the resident, or the resident's legal representative, shall be contained on the individualized service plan to acknowledge that the service plan has been reviewed and understood by the resident or legal representative;

(7) Makes available and implements self-care, productive and leisure activity programs which maximize and encourage the resident's optimal functional ability;

(8) Ensures that the residence does not accept or retain a resident who:

(a) Has exhibited behaviors that present a reasonable likelihood of serious harm to himself or herself or others;

(b) Requires physical restraint;

(c) Requires chemical restraint. As used in this paragraph, the following terms mean:

a. "Chemical restraint", a psychopharmacologic drug that is used for discipline or convenience and not required to treat medical symptoms;

b. "Convenience", any action taken by the facility to control resident behavior or maintain residents with a lesser amount of effort by the facility and not in the resident's best interest;

c. "Discipline", any action taken by the facility for the purpose of punishing or penalizing residents;

(d) Requires skilled nursing services as defined in subdivision (23) of section 198.006 for which the facility is not licensed or able to provide;

(e) Requires more than one person to simultaneously physically assist the resident with any activity of daily living, with the exception of bathing and transferring;

(f) Is bed-bound or similarly immobilized due to a debilitating or chronic condition; and

(9) Develops and implements a plan to protect the rights, privacy, and safety of all residents and to protect against the financial exploitation of all residents;

(10) Complies with the training requirements of subsection 8 of section 660.050, RSMo.

5. Exceptions to paragraphs (d) to (f) of subdivision (8) of subsection 4 of this section shall be made for residents on hospice, provided the resident, designated representative, or both, and the assisted living provider, physician, and licensed hospice provider all agree that such program of care is appropriate for the resident.

6. If an assisted living facility accepts or retains any individual with a physical, cognitive, or other impairment that prevents the individual from safely evacuating the facility with minimal assistance, the facility shall:

(1) Have sufficient staff present and awake twenty-four hours a day to assist in the evacuation;

(2) Include an individualized evacuation plan in the service plan of the resident; and

(3) Take necessary measures to provide residents with the opportunity to explore the facility and, if appropriate, its grounds; and

(4) Use a personal electronic monitoring device for any resident whose physician recommends the use of such device.

7. An individual admitted or readmitted to the facility shall have an admission physical examination by a licensed physician. Documentation should be obtained prior to admission but shall be on file not later than ten days after admission and shall contain information regarding the individual's current medical status and any special orders or procedures that should be followed. If the individual is admitted directly from a hospital or another long-term care facility and is accompanied on admission by a report that reflects his or her current medical status, an admission physical shall not be required.

8. Facilities licensed as an assisted living facility shall disclose to a prospective resident, or legal representative of the resident, information regarding the services the facility is able to provide or coordinate, the costs of such services to the resident, and the resident conditions that will require discharge or transfer, including the provisions of subdivision (8) of subsection 4 of this section.

9. After January 1, 2008, no entity shall hold itself out as an assisted living facility or advertise itself as an assisted living facility without obtaining a license from the department to operate as an assisted living facility. Any residential care facility II licensed under this chapter that does not use the term assisted living in the name of its licensed facility on or before May 1, 2006, shall be prohibited from using such term after August 28, 2006, unless such facility meets the requirements for an assisted living facility in subsection 4 of this section. Any facility licensed as an intermediate care facility prior to August 28, 2006, that provides the services of an assisted living facility, as described in paragraphs (a), (b), and (c) of subdivision (6) of section 198.006, utilizing the social model of care, may advertise itself as an assisted living facility without obtaining a license from the department to operate as an assisted living facility.

10. The department of health and senior services shall promulgate rules to ensure compliance with this section. Any rule or portion of a rule, as that term is defined in section 536.010, RSMo, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536, RSMo, and, if applicable, section 536.028, RSMo. This section and chapter 536, RSMo, are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536, RSMo, to review, to delay the effective date, or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2006, shall be invalid and void.

(L. 1979 S.B. 328, et al. § 24, A.L. 1984 S.B. 451, A.L. 1992 H.B. 899 merged with S.B. 573 & 634 merged with S.B. 721, A.L. 1999 S.B. 326, A.L. 2006 S.B. 616, A.L. 2007 H.B. 952 & 674)

198.074. 1. Effective August 28, 2007, all new facilities licensed on or after August 28, 2007, or any facilities completing a major renovation to the facility on or after August 28, 2007, as defined and approved by the department, and which are licensed under this chapter shall install and maintain an approved sprinkler system in accordance with National Fire Protection Association (NFPA) 13.

2. Facilities that were initially licensed and had an approved sprinkler system prior to August 28, 2007, shall continue to meet all laws, rules, and regulations for testing, inspection and maintenance of the sprinkler system that were in effect for such facilities on August 27, 2007.

3. Multi-level assisted living facilities that accept or retain any individual with a physical, cognitive, or other impairment that prevents the individual from safely evacuating the facility with minimal assistance shall install and maintain an approved sprinkler system in accordance with NFPA 13. Single-story assisted living facilities that accept or retain any individual with a physical, cognitive, or other impairment that prevents the individual from safely evacuating the facility with minimal assistance shall install and maintain an approved sprinkler system in accordance with NFPA 13R.

4. All residential care and assisted living facilities with more than twenty residents not included in subsection 3 of this section, which are initially licensed under this chapter prior to August 28, 2007, and that do not have installed an approved sprinkler system in accordance with NFPA 13R prior to August 28, 2007, shall install and maintain an approved sprinkler system in accordance with NFPA 13R by December 31, 2012, unless the facility meets the safety requirements of Chapter 33 of existing residential board and care occupancies of NFPA 101 life safety code.

5. All skilled nursing and intermediate care facilities not required prior to August 28, 2007, to install and maintain an approved sprinkler system shall install and maintain an approved sprinkler system in accordance with NFPA 13 by December 31, 2012, unless the facility receives an exemption from the department and presents evidence in writing from a certified sprinkler system representative or licensed engineer that the facility is unable to install an approved National Fire Protection Association 13 system due to the unavailability of water supply requirements associated with this system or the facility meets the safety requirements of Chapter 33 of existing residential board and care occupancies of NFPA 101 life safety code.

6. Facilities that take a substantial step, as specified in subsection 7 of this section, to install an approved NFPA 13R system prior to December 31, 2012, may apply to the department for a loan in accordance with section 198.075 to install such system. However, such loan shall not be available if by December 31, 2009, the average total reimbursement for the care of persons eligible for Medicaid public assistance in an assisted living facility and residential care facility is equal to or exceeds fifty-two dollars per day. The average total reimbursement includes room, board, and care delivered by the facility, but shall not include payments to the facility for care or services not provided by the facility. If a facility under this subsection does not have an approved sprinkler system installed by December 31, 2012, such facility shall be required to install and maintain an approved sprinkler system in accordance with NFPA 13 by December 31, 2013. Such loans received under this subsection and in accordance with section 198.075, shall be paid in full as follows:

(1) Ten years for those facilities approved for the loan and whose average total reimbursement rate for the care of persons eligible for Medicaid public assistance is equal to forty-eight and no more than forty-nine dollars per day;

(2) Eight years for those facilities approved for the loan and whose average total reimbursement rate for the care of persons eligible for Medicaid public assistance is greater than forty-nine and no more than fifty-two dollars per day; or

(3) Five years for those facilities approved for the loan and whose average total reimbursement rate for the care of persons eligible for Medicaid public assistance is greater than fifty-two dollars per day.

(4) No payments or interest shall be due until the average total reimbursement rate for the care of persons eligible for Medicaid public assistance is equal to or greater than forty-eight dollars.

7. (1) All facilities licensed under this chapter shall be equipped with a complete fire alarm system in compliance with NFPA 101, Life Safety Code for Detection, Alarm, and Communication Systems as referenced in NFPA 72, or shall maintain a system that was approved by the department when such facility was constructed so long as such system is a complete fire alarm system. A complete fire alarm system shall include, but not be limited to, interconnected smoke detectors throughout the facility, automatic transmission to the fire department, dispatching agency, or central monitoring company, manual pull stations at each required exit and attendant's station, heat detectors, and audible and visual alarm indicators.

(2) In addition, each floor accessed by residents shall be divided into at least two smoke sections by one-hour rated smoke partitions. No smoke section shall exceed one hundred fifty feet in length. If neither the length nor the width of the floor exceeds seventy-five feet, no smoke-stop partition shall be required. Facilities with a complete fire alarm system and smoke sections meeting the requirements of this subsection prior to August 28, 2007, shall continue to meet such requirements. Facilities initially licensed on or after August 28, 2007, shall comply with such requirements beginning August 28, 2007, or on the effective date of licensure.

(3) Except as otherwise provided in this subsection, the requirements for complete fire alarm systems and smoke sections shall be enforceable on December 31, 2008.

8. The requirements of this section shall be construed to supersede the provisions of section 198.058 relating to the exemption of facilities from construction standards.

9. Fire safety inspections of facilities licensed under this chapter for compliance with this section shall be conducted annually by the state fire marshal if such inspections are not available to be conducted by local fire protection districts or fire departments. The provisions of this section shall be enforced by the state fire marshal or by the local fire protection district or fire department, depending on which entity conducted the inspection.

10. By July 1, 2008, all facilities licensed under this chapter shall submit a plan for compliance with the provisions of this section to the state fire marshal.

(L. 2007 H.B. 952 & 674)

198.075. 1. There is hereby created in the state treasury the "Fire Safety Standards Loan Fund", for implementing the provisions of subsection 3 of section 198.074. Moneys deposited in the fund shall be considered state funds under article IV, section 15 of the Missouri Constitution. The state treasurer shall be custodian of the fund and may disburse moneys from the fund in accordance with sections 30.170 and 30.180, RSMo. Any moneys remaining in the fund at the end of the biennium shall revert to the credit of the general revenue fund. The state treasurer shall invest moneys in the fund in the same manner as other funds are invested. Any interest and moneys earned on such investments shall be credited to the fund.

2. Qualifying facilities shall make an application to the department of health and senior services upon forms provided by the department. Upon receipt of an application for a loan, the department shall review the application and advise the governor before state funds are allocated for a loan. For purposes of this section, a "qualifying facility" shall mean a facility licensed under this chapter that is in substantial compliance. "Substantial compliance" shall mean a facility that has no uncorrected deficiencies and is in compliance with department of health and senior services rules and regulations governing such facility.

3. The fund shall be a loan of which the interest rate shall not exceed two and one-half percent.

4. The fund shall be administered by the department of health and senior services.

(L. 2007 H.B. 952 & 674)

198.076. The department shall promulgate reasonable standards and regulations for all residential care facilities and all assisted living facilities. The standards and regulations shall take into account the level of care provided and the number and type of residents served by the facility to insure maximum flexibility. These standards and regulations shall relate to:

(1) The number and qualifications of employed and contract personnel having responsibility for any of the services provided for residents;

(2) The equipment, facilities, services and supplies essential to the health and welfare of the residents;

(3) Fire safety, including resident smoking in designated areas only, unannounced fire drills, fire safety training, and notification to the department of fires and fire watches;

(4) Sanitation in the facility;

(5) Diet, which shall be based on good nutritional practice;

(6) Personal funds and property of residents;

(7) Resident rights and resident grievance procedures appropriate to the levels of care, size and type of facility;

(8) Record keeping appropriate to the levels of care, size and type of facility;

(9) Construction of the facility;

(10) Care of residents.

(L. 1979 S.B. 328, et al. § 25, A.L. 1984 S.B. 451, A.L. 2007 H.B. 952 & 674)

198.077. For any residential care facility, assisted living facility, intermediate care facility or skilled nursing facility, if the department of social services maintains records of site inspections and violations of statutes, rules, or the terms or conditions of any license issued to such facility, the department shall also maintain records of compliance with such statutes, rules, or terms or conditions of any license, and shall specifically record in such records any actions taken by the facility that are above and beyond what is minimally required for compliance.

(L. 1999 H.B. 316, et al. § 4 merged with S.B. 326 § 15)

*Reprinted due to editorial change required by § 198.005.

198.079. The department shall promulgate reasonable standards and regulations for all intermediate care facilities and all skilled nursing facilities. The standards and regulations shall take into account the level of care provided and the type of residents served by the facility. These standards and regulations shall relate to:

(1) The number and qualifications of employed and contract personnel having responsibility for any of the services provided for residents;

(2) The equipment, facilities, services and supplies essential to the health and welfare of the residents;

(3) Fire safety, including resident smoking in designated areas only, unannounced fire drills, fire safety training, and notification to the department of fires and fire watches;

(4) Sanitation in the facility;

(5) Diet, which shall be related to the needs of each resident and based on good nutritional practice and on recommendations which may be made by the physician attending the resident;

(6) Personal funds and property of residents;

(7) Resident rights and resident grievance procedures;

(8) Record keeping, including clinical and personnel records;

(9) The construction of the facility, including plumbing, heating, ventilation and other housing conditions which shall insure the health, safety and comfort of residents and protection from fire hazards;

(10) Care of residents;

(11) Social and rehabilitative service;

(12) Staff training and continuing education.

(L. 1979 S.B. 328, et al. § 26, A.L. 2007 H.B. 952 & 674)

198.080. The division of aging shall develop flexible assessment procedures for individuals in long-term care and those considering long- term care services which follow* the individual through the continuum of care, including periodic reassessment. By January 1, 2002, the division of aging shall promulgate rules and regulations to implement the new assessment system and shall make a report to the appropriate house and senate committees of the general assembly regarding the new assessment system. Any rule or portion of a rule, as that term is defined in section 536.010, RSMo, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536, RSMo, and, if applicable, section 536.028, RSMo. This section and chapter 536, RSMo, are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536, RSMo, to review, to delay the effective date or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 1999, shall be invalid and void.

(L. 1999 S.B. 326 § 3)

*Word "follows" appears in original rolls.

CROSS REFERENCE:

Rulemaking authority, RSMo 198.534

198.082. 1. Each nursing assistant hired to work in a skilled nursing or intermediate care facility after January 1, 1980, shall have successfully completed a nursing assistant training program approved by the department or shall enroll in and begin the first available approved training program which is scheduled to commence within ninety days of the date of the nursing assistant's employment and which shall be completed within four months of employment. Training programs shall be offered at any facility licensed or approved by the department of health and senior services which is most reasonably accessible to the enrollees in each class. The program may be established by the skilled nursing or intermediate care facility, by a professional organization, or by the department, and training shall be given by the personnel of the facility, by a professional organization, by the department, by any junior college or by the vocational education department of any high school.

2. As used in this section the term "nursing assistant" means an employee, including a nurse's aide or an orderly, who is assigned by a skilled nursing or intermediate care facility to provide or assist in the provision of direct resident health care services under the supervision of a nurse licensed under the nursing practice law, chapter 335, RSMo. This section shall not apply to any person otherwise licensed to perform health care services under the laws of this state. It shall not apply to volunteers or to members of religious or fraternal orders which operate and administer the facility, if such volunteers or members work without compensation.

3. The training program after January 1, 1989, shall consist of at least the following:

(1) A training program consisting of at least seventy-five classroom hours of training on basic nursing skills, clinical practice, resident safety and rights, the social and psychological problems of residents, and the methods of handling and caring for mentally confused residents such as those with Alzheimer's disease and related disorders, and one hundred hours supervised and on-the-job training. The one hundred hours shall be completed within four months of employment and may consist of normal employment as nurse assistants under the supervision of a licensed nurse; and

(2) Continuing in-service training to assure continuing competency in existing and new nursing skills. All nursing assistants trained prior to January 1, 1989, shall attend, by August 31, 1989, an entire special retraining program established by rule or regulation of the department which shall contain information on methods of handling mentally confused residents and which may be offered on premises by the employing facility.

4. Nursing assistants who have not successfully completed the nursing assistant training program prior to employment may begin duties as a nursing assistant only after completing an initial twelve hours of basic orientation approved by the department and may provide direct resident care only if under the general supervision of a licensed nurse prior to completion of the seventy-five classroom hours of the training program.

(L. 1979 S.B. 328, et al. § 27, A.L. 1988 S.B. 602, A.L. 2003 S.B. 556 & 311)

198.085. In establishing standards for each type of facility, the department shall classify the standards into three categories for each type of licensed facility as follows:

(1) Class I standards are standards the violation of which would present either an imminent danger to the health, safety or welfare of any resident or a substantial probability that death or serious physical harm would result;

(2) Class II standards are standards which have a direct or immediate relationship to the health, safety or welfare of any resident, but which do not create imminent danger;

(3) Class III standards are standards which have an indirect or a potential impact on the health, safety or welfare of any resident.

(L. 1979 S.B. 328, et al. § 28, A.L. 1984 S.B. 451, A.L. 1995 H.B. 574)

198.086. 1. The department of health and senior services shall develop and implement a demonstration project designed to establish a licensure category for health care facilities that wish to provide treatment to persons with Alzheimer's disease or Alzheimer's-related dementia. The division shall also:

(1) Inform potential providers of the demonstration project and seek letters of intent;

(2) Review letters of intent and select provider organizations to participate in the demonstration project. Ten such organizations may develop such projects using an existing license and additional organizations shall be newly licensed facilities with no more than thirty beds per project. One demonstration project shall be at a stand-alone facility of no more than one hundred twenty beds designed and operated exclusively for the care of residents with Alzheimer's disease or dementia within a county of the first classification with a charter form of government with a population over nine hundred thousand. A total of not more than three hundred beds may be newly licensed through the demonstration projects. All projects shall maintain their pilot status until a complete evaluation is completed by the division of aging, in conjunction with a qualified Missouri school or university, and a written determination is made from such evaluation that the pilot project is successful;

(3) Monitor the participants' compliance with the criteria established in this section;

(4) Recommend legislation regarding the licensure of dementia-specific residential care based on the results of the demonstration project; and

(5) Submit a report regarding the division's activities and recommendations for administrative or legislative action on or before November fifteenth of each year to the governor, the president pro tem of the senate and the speaker of the house of representatives.

2. The director of the division shall:

(1) Develop a reimbursement methodology to reasonably and adequately compensate the pilot projects for the costs of operation of the project, and require the filing of annual cost reports by each participating facility which shall include, but not be limited to, the cost equivalent of unpaid volunteer or donated labor;

(2) Process the license applications of project participants;

(3) Monitor each participant to assure its compliance with the requirements and that the life, health and safety of residents are assured;

(4) Require each participating facility to complete a minimum data set form for each resident occupying a pilot bed;

(5) Require the division of aging to assign a single team of the same surveyors to inspect and survey all participating facilities at least twice a year for the entire period of the project; and

(6) Submit to the president pro tem of the senate and speaker of the house of representatives copies of any statements of deficiencies, plans of correction and complaint investigation reports applying to project participants.

3. Project participants shall:

(1) Be licensed by the division;

(2) Provide care only to persons who have been diagnosed with Alzheimer's disease or Alzheimer's-related dementia;

(3) Have buildings and furnishings that are designed to provide for the resident's safety. Facilities shall have indoor and outdoor activity areas, and electronically controlled exits from the buildings and grounds to allow residents the ability to explore while preventing them from exiting the facility's grounds unattended;

(4) Be staffed twenty-four hours a day by the appropriate number and type of personnel necessary for the proper care of residents and upkeep of the facility;

(5) Conduct special staff training relating to the needs, care and safety of persons with Alzheimer's disease or Alzheimer's-related dementia within the first thirty days of employment;

(6) Utilize personal electronic monitoring devices for any resident whose physician recommends use of such device;

(7) Permit the resident's physician, in consultation with the family members or health care advocates of the resident, to determine whether the facility meets the needs of the resident; and

(8) Implement a social model for the residential environment rather than an institutional medical model.

4. For purposes of this section, "health care facilities for persons with Alzheimer's disease or Alzheimer's-related dementia" means facilities that are specifically designed and operated to provide elderly individuals who have chronic confusion or dementia illness, or both, with a safe, structured but flexible environment that encourages physical activity through a well-developed recreational and aging-in-place and activity program. Such program shall continually strive to promote the highest practicable physical and mental abilities and functioning of each resident.

5. Nothing in this section shall be construed to prohibit project participants from accommodating a family member or other caregiver from residing with the resident in accordance with all life, health, and safety standards of the facility.

(L. 1999 S.B. 326 § 5, A.L. 2003 S.B. 556 & 311, A.L. 2007 H.B. 952 & 674)

CROSS REFERENCE:

Rulemaking authority, RSMo 198.534

198.087. To ensure uniformity of application of regulation standards in long-term care facilities throughout the state, the department of social services shall:

(1) Evaluate the requirements for inspectors or surveyors of facilities, including the eligibility, training and testing requirements for the position.

Based on the evaluation, the department shall develop and implement additional training and knowledge standards for inspectors and surveyors;

(2) Periodically evaluate the performance of the inspectors or surveyors regionally and statewide to identify any deviations or inconsistencies in regulation application. At a minimum, the Missouri on-site surveyor evaluation process, and the number and type of actions overturned by the informal dispute resolution process and formal appeal shall be used in the evaluation. Based on such evaluation, the department shall develop standards and a retraining process for the region, state, or individual inspector or surveyor, as needed;

(3) In addition to the provisions of subdivisions (1) and (2) of this section, the department shall develop a single uniform comprehensive and mandatory course of instruction for inspectors/surveyors on the practical application of enforcement of statutes, rules and regulations. Such course shall also be open to attendance by administrators and staff of facilities licensed pursuant to this chapter;

(4) With the full cooperation of and in conjunction with the department of health and senior services, evaluate the implementation and compliance of the provisions of subdivision (3) of subsection 1 of section 198.012 in which rules, requirements, regulations and standards pursuant to section 197.080, RSMo, for assisted living facilities, intermediate care facilities and skilled nursing facilities attached to an acute care hospital are consistent with the intent of this chapter. A report of the differences found in the evaluation conducted pursuant to this subdivision shall be made jointly by the departments of social services and health and senior services to the governor and members of the general assembly by January 1, 2008; and

(5) With the full cooperation and in conjunction with the department of health and senior services, develop rules and regulations requiring the exchange of information, including regulatory violations, between the departments to ensure the protection of individuals who are served by health care providers regulated by either the department of health and senior services or the department of social services.

(L. 1999 S.B. 326 § 11, A.L. 2006 S.B. 616)

198.088. 1. Every facility, in accordance with the rules applying to each particular type of facility, shall ensure that:

(1) There are written policies and procedures available to staff, residents, their families or legal representative and the public which govern all areas of service provided by the facility. The facility shall also retain and make available for public inspection at the facility to staff, residents, their families or legal representative and the public a complete copy of each official notification from the department of violations, deficiencies, licensure approvals, disapprovals, and responses, a description of services, basic rate and charges for any services not covered by the basic rate, if any, and a list of names, addresses and occupation of all individuals who have a proprietary interest in the facility;

(2) Policies relating to admission, transfer, and discharge of residents shall assure that:

(a) Only those persons are accepted whose needs can be met by the facility directly or in cooperation with community resources or other providers of care with which it is affiliated or has contracts;

(b) As changes occur in their physical or mental condition, necessitating service or care which cannot be adequately provided by the facility, residents are transferred promptly to hospitals, skilled nursing facilities, or other appropriate facilities; and

(c) Except in the case of an emergency, the resident, his next of kin, attending physician, and the responsible agency, if any, are consulted at least thirty days in advance of the transfer or discharge of any resident, and casework services or other means are utilized to assure that adequate arrangements exist for meeting his needs through other resources;

(3) Policies define the uses of chemical and physical restraints, identify the professional personnel who may authorize the application of restraints in emergencies and describe the mechanism for monitoring and controlling their use;

(4) Policies define procedures for submittal of complaints and recommendations by residents and for assuring response and disposition;

(5) There are written policies governing access to, duplication of, and dissemination of information from the resident's records;

(6) Each resident admitted to the facility:

(a) Is fully informed of his rights and responsibilities as a resident. Prior to or at the time of admission, a list of resident rights shall be provided to each resident, or his designee, next of kin, or legal guardian. A list of resident rights shall be posted in a conspicuous location in the facility and copies shall be available to anyone upon request;

(b) Is fully informed in writing, prior to or at the time of admission and during stay, of services available in the facility, and of related charges including any charges for services not covered under the federal or state programs or not covered by the facility's basic per diem rate;

(c) Is fully informed by a physician of his health and medical condition unless medically contraindicated, as documented by a physician in his resident record, and is afforded the opportunity to participate in the planning of his total care and medical treatment and to refuse treatment, and participates in experimental research only upon his informed written consent;

(d) Is transferred or discharged only for medical reasons or for his welfare or that of other residents, or for nonpayment for his stay. No resident may be discharged without notice of his right to a hearing and an opportunity to be heard on the issue of whether his immediate discharge is necessary. Such notice shall be given in writing no less than thirty days in advance of the discharge except in the case of an emergency discharge. In emergency discharges a written notice of discharge and right to a hearing shall be given as soon as practicable and an expedited hearing shall be held upon request of the resident, next of kin, legal guardian, or nursing facility;

(e) Is encouraged and assisted, throughout his period of stay, to exercise his rights as a resident and as a citizen, and to this end may voice grievances and recommend changes in policies and services to facility staff or to outside representatives of his choice, free from restraint, interference, coercion, discrimination, or reprisal;

(f) May manage his personal financial affairs, and, to the extent that the facility assists in such management, has his personal financial affairs managed in accordance with section 198.090;

(g) Is free from mental and physical abuse, and free from chemical and physical restraints except as follows:

a. When used as a part of a total program of care to assist the resident to attain or maintain the highest practicable level of physical, mental or psychosocial well-being;

b. When authorized in writing by a physician for a specified period of time; and

c. When necessary in an emergency to protect the resident from injury to himself or to others, in which case restraints may be authorized by designated professional personnel who promptly report the action taken to the physician. When restraints are indicated, devices that are least restrictive, consistent with the resident's total treatment program, shall be used;

(h) Is ensured confidential treatment of all information contained in his records, including information contained in an automatic data bank, and his written consent shall be required for the release of information to persons not otherwise authorized under law to receive it;

(i) Is treated with consideration, respect, and full recognition of his dignity and individuality, including privacy in treatment and in care for his personal needs;

(j) Is not required to perform services for the facility;

(k) May communicate, associate and meet privately with persons of his choice, unless to do so would infringe upon the rights of other residents, and send and receive his personal mail unopened;

(l) May participate in activities of social, religious and community groups at his discretion, unless contraindicated for reasons documented by a physician in the resident's medical record;

(m) May retain and use his personal clothing and possessions as space permits;

(n) If married, is ensured privacy for visits by his or her spouse; if both are residents in the facility, they are permitted to share a room; and

(o) Is allowed the option of purchasing or renting goods or services not included in the per diem or monthly rate from a supplier of his own choice;

(7) The resident or his designee, next of kin or legal guardian receives an itemized bill for all goods and services actually rendered;

(8) A written account, available to residents and their families, is maintained on a current basis for each resident with written receipts for all personal possessions and funds received by or deposited with the facility and for all disbursements made to or on behalf of the resident.

2. Each facility and the department shall encourage and assist residents in the free exercise of the resident's rights to civil and religious liberties, including knowledge of available choices and the right to independent personal decision. Each resident shall be given a copy of a statement of his rights and responsibilities, including a copy of the facility's rules and regulations. Each facility shall prepare a written plan to ensure the respect of each resident's rights and privacy and shall provide appropriate staff training to implement the plan.

3. (1) Each facility shall establish written procedures approved by the department by which complaints and grievances of residents may be heard and considered. The procedures shall provide for referral to the department of any complaints or grievances not resolved by the facility's grievance procedure.

(2) Each facility shall designate one staff member, employed full time, referred to in this subsection as the "designee", to receive all grievances when they are first made.

(3) If anyone wishes to complain about treatment, conditions, or violations of rights, he shall write or cause to be written his grievance or shall state it orally to the designee no later than fourteen days after the occurrence giving rise to the grievance. When the department receives a complaint that does not contain allegations of abuse or neglect or allegations which would, if substantiated, constitute violation of a class I or class II standard as defined in section 198.085, and the complainant indicates that the complaint was not filed with the facility prior to the reporting of it to the department, the department may in such instances refer the complaint to the staff person who is designated by the facility to receive all grievances when they are first made. In such instances the department shall assure appropriate response from the facility, assure resolution at a subsequent on-site visit and provide a report to the complainant. The designee shall confer with persons involved in the occurrence and with any other witnesses and, no later than three days after the grievance, give a written explanation of findings and proposed remedies, if any, to the complainant and to the aggrieved party, if someone other than the complainant. Where appropriate because of the mental or physical condition of the complainant or the aggrieved party, the written explanation shall be accompanied by an oral explanation.

(4) The department shall establish and implement procedures for the making and transmission of complaints to the department by any person alleging violation of the provisions of sections 198.003 to 198.186, 198.200, 208.030, and 208.159, RSMo, and the standards established thereunder. The department shall promptly review each complaint. In the case of a refusal to investigate, the department shall promptly notify the complainant of its refusal and the reasons therefor; and in every other case, the department shall, following investigation, notify the complainant of its investigation and any proposed action.

4. Whenever the department finds upon investigation that there have been violations of the provisions of sections 198.003 to 198.186, 198.200, 208.030, and 208.159, RSMo, or the standards established thereunder by any person licensed under the provisions of chapter 330, 331, 332, 334, 335, 336, 337, 338, or 344, RSMo, the department shall forward a report of its findings to the appropriate licensing or examining board for further investigation.

5. Each facility shall maintain a complete record of complaints and grievances made against such facility and a record of the final disposition of the complaints and grievances. Such record shall be open to inspection by representatives of the department during normal business hours.

6. Nothing in this section shall be construed as requiring a resident to exhaust grievance procedures established by the facility or by the department prior to filing a complaint pursuant to section 198.090.

(L. 1979 S.B. 328, et al. § 29, A.L. 1988 S.B. 602, A.L. 1989 S.B. 203 & 270, A.L. 1994 H.B. 1335 & 1381)

198.090. 1. An operator may make available to any resident the service of holding in trust personal possessions