A landmark new law aims to protect Minnesota's elderly, but who writes the rules?

State lawmakers have approved a far-reaching overhaul of Minnesota's system for protecting senior citizens from abuse, capping a long and emotional battle, but the most difficult work may still lie ahead.

The 168-page bill, hailed as a landmark achievement by legislators from both parties on how to regulate the fast-growing assisted-living industry, was signed into law last week by Gov. Tim Walz.

Now comes the next challenge: drawing up dozens of rules that actually implement the law, governing how hundreds of newly licensed facilities will operate and how regulators will enforce the new regulations. The myriad rules will confront a host of regulatory issues that were considered too complex and divisive to resolve during the legislative session — and may determine how effectively it protects Minnesota's elderly.

The ink was barely dry on the Elder Care and Vulnerable Adult Protection Act of 2019 early last week when elder care advocates began raising concerns that the bill might be weakened in a long and grinding rule-making process. Representatives of the senior care industry have indicated that they are likely to push back on certain measures, such as minimum staffing levels and licensing fees, that could place economic strains on smaller facilities grappling with a severe shortage of workers.

"Getting across the finish line was urgent, but in many ways, our work is just beginning," said Gayle Kvenvold, president and CEO of LeadingAge Minnesota, a long-term care industry group.

The legislation represents the broadest expansion of the state's oversight of the long-term care industry in generations. The bill mandates for the first time that Minnesota's roughly 1,200 assisted-living facilities be licensed, starting in August 2021, much as nursing homes are today. Without licensing, senior care advocates have argued, the state has been hamstrung in enforcing basic standards of care and holding facilities accountable for maltreatment.

"This legislation absolutely will save lives," declared Republican Sen. Karin Housley, the chairwoman of the Senate Family Care and Aging Committee, who gave emotional testimony on the Senate floor in support of the changes. "There are now consumer protections in place that will prevent abuse and neglect for generations to come."

For years, elder care advocates have raised alarms about the rapid growth of less-institutional settings known as assisted-living facilities, which offered greater independence but operated with little government scrutiny. Calls for reform reached a crescendo after a five-part Star Tribune investigation in 2017 that chronicled hundreds of cases in which assisted-living residents were beaten, sexually assaulted or robbed. The series also found that elderly victims and their families were often kept in the dark for months, if not years, as state investigations dragged on indefinitely.

Currently, Minnesota is the only state that does not license assisted-living facilities, even as the industry has mushroomed in size and accepted more residents with complex medical needs. The number of Minnesotans living in assisted-living facilities has doubled over the past decade, to about 55,000 residents, while the nursing home population has shrunk to less than 30,000.

To craft new protections, senior-care advocates and industry representatives this spring spent hundreds of hours at the negotiating table, sometimes toiling late into the night. In the final days of the 2019 session, talks almost broke down several times over such issues as whether senior care facilities should be notified when people place cameras in rooms to monitor care.

"We scrutinized every single word and every comma," said Ron Elwood, a supervising attorney with the Legal Services Advocacy Project, the advocacy arm of Legal Aid, one in a coalition of consumer groups at the table.

'Bees on honey'

Despite that effort, the two sides failed to reach agreement on a number of key issues. For instance, the law calls for the creation of basic standards for admission, staffing and training, as well as new procedures for discharging and transferring residents. Many of the specifics, however, are not spelled out in the final bill and must be worked out through a rule-making process that is likely to be long and arduous. Several enforcement provisions also remain unresolved.

Lawmakers directed the state health commissioner to draft these new rules with input from members of the public and interest groups. The rule-making process tends to be highly technical and, some political scholars argue, tends to favor industry groups that have teams of lobbyists and attorneys who are familiar with the laws, and also have resources to stick with the deliberations over the long haul.

"Once rule-making begins, the industry and their lobbyists are going to be like bees on honey," said Larry Jacobs, a University of Minnesota political science professor who studies health care policy. "After the legislative session is over, most citizen activists and reformers go home and get a good night's sleep. Not so the lobbyists, who just shift their workplace and not their work."

Staffing is likely to be among the most contentious issues. Senior advocacy groups, such as AARP Minnesota and Elder Voice Family Advocates, have insisted that inadequate staffing and insufficient training have contributed to the state's rising number of maltreatment cases. They have pointed to dozens of recent cases, revealed in state health investigations, in which residents of assisted-living facilities died unnecessarily because of dangerously low staffing levels or poor training.

Advocates have pressed for the state to impose minimum staffing levels. Nursing homes, for example, are required to have certain numbers and types of nursing personnel working at all times, in addition to a registered nurse on site seven days a week.

"We all know the elephant in the room is staffing," said Kristine Sundberg, president of Elder Voice, which represents victims of elder abuse and their families.

Language in the new law simply requires that staffing in assisted-living homes be "appropriate" to "best protect the health and safety of residents." Similarly, the law mandates that all staff "must be trained and competent," but the specific qualifications have not been defined.

"Staffing will be a difficult conversation, because we all recognize the workforce shortages," Kvenvold said.

Surveillance cameras

Other provisions are equally vague. For instance, assisted-living providers will be required for the first time to have a registered nurse evaluate the physical and cognitive needs of every new resident, a way to ensure that seniors with acute medical needs don't wind up in facilities where they are underserved or quickly discharged. Yet the content of these evaluations is still unresolved.

In many other areas, however, the law leaves nothing to chance, and significant consumer protections are clearly spelled out. One such area is the use of small monitoring cameras, which have become increasingly important tools for families to monitor the care of their loved ones, but in some cases have led to threats of eviction or retaliation by facility managers.

The right to use such devices, an open question in the past, is clearly enshrined in the new law. Under a deal that balances privacy rights with patient safety, residents can install a camera in their room 14 days before being required to notify the facility of its presence.

The bill also has clearly defined rules governing discharges and a blanket prohibition against retaliating against residents and staff who report maltreatment or poor care.

"This will level the playing field for consumers," said Amanda Vickstrom, executive director of the Minnesota Elder Justice Center, which helped write the provisions governing electronic monitoring. "The consensus is remarkable when you consider where we were two years ago."

As for the rule-making process, both industry and consumer groups have vowed to remain engaged. The Department of Health will begin the rule-making process under the new law in July, followed by rounds of public comment; and the final rules will be published by the end of 2020.

"The process favors people who are paying attention," said Sean Burke of the Minnesota Elder Justice Center.

Chris Serres • 612-673-4308 Twitter: @chrisserres