Nursing Home Variance and Waiver Rules in Minnesota

According to Minnesota Administrative Rules 4658.0040 VARIANCE AND WAIVER, Subpart 1., request for variance or waiver. A nursing home may request that the department grant a waiver from the provisions of this chapter. A request for a variance or waiver must be submitted to the department in writing. Each request must contain:

A. the specific part or parts for which the variance or waiver is requested;

B. the reasons for the request;

C. the alternative measures that will be taken if a variance or waiver is granted;

D. the length of time for which the variance or waiver is requested; and

E. other relevant information necessary to properly evaluate the request for the variance or waiver.

Subp. 2. Criteria for evaluation. The decision to grant or deny a waiver must be based on the department’s evaluation of the following criteria:

A. whether the variance or waiver adversely affects the health, treatment, comfort, safety, or well-being of a resident;

B. whether the alternative measures to be taken, if any, are equivalent to or superior to those prescribed in this chapter; and

C. whether compliance with the part or parts would impose an undue burden upon the applicant.

Notice of Variance and Waiver Requirements

Subp. 3. Notification of variance. The department must notify the applicant in writing of its decision. If a variance or waiver is granted, the notification must specify the period of time for which the variance or waiver is effective and the alternative measures or conditions, if any, to be met by the applicant.

Subp. 4. Effect of alternative measures or conditions. Alternative measures or conditions attached to a variance or waiver have the force and effect of this chapter and are subject to the issuance of correction orders and penalty assessments in accordance with Minnesota Statutes, section 144A.10. The amount of fines for a violation of this part is that specified for the particular rule for which the variance or waiver was requested.

Subp. 5. Renewal. A request for the renewal of a variance or waiver must be submitted in writing at least 45 days before its expiration date. Renewal requests must contain the information specified in subpart 1. A variance or waiver must be renewed by the department if the applicant continues to satisfy the criteria in subparts 2 and 3, and demonstrates compliance with the alternative measures or conditions imposed at the time the original variance or waiver was granted.

Subp. 6. Denial, revocation, or refusal to renew. The department must deny, revoke, or refuse to renew a variance or waiver if it is determined that the criteria in subparts 2 and 3 are not met. The applicant must be notified in writing of the reasons for the decision and informed of the right to appeal the decision.

Subp. 7. Appeal procedure. An applicant may contest the denial, revocation, or refusal to renew a variance or waiver by requesting a contested case hearing under Minnesota Statutes, chapter 14. The applicant must submit, within 15 days of the receipt of the department’s decision, a written request for a hearing. The request for hearing must set forth in detail the reasons why the applicant contends the decision of the department should be reversed or modified. At the hearing, the applicant has the burden of proving that it satisfied the criteria specified in subparts 2 and 3, except in a proceeding challenging the revocation of a variance or waiver.

According to Minnesota Administrative Rule 4658.0015, COMPLIANCE WITH REGULATIONS AND STANDARDS, a nursing home must operate and provide services in compliance with all applicable federal, state, and local laws, regulations, and codes, and with accepted professional standards and principles that apply to professionals providing services in a nursing home.

According to 4658.0020 LICENSING IN GENERAL, Subpart 1., a state license is required for a facility where nursing home care is provided for five or more aged or infirm persons who are not acutely ill.

Subp. 2. License fees. Each application for either an initial or renewal license to operate a nursing home must be accompanied by a fee based upon the formula as provided by Minnesota Statutes, section 144.122. A bed must be licensed if it is available for use by residents. If the number of licensed beds is increased during the term of the license, a full year’s fee for each additional bed must be paid. There is no refund for a decrease in licensed beds.

Subp. 3. License expiration date. Initial and renewal licenses are issued for one year and expire on the anniversary date of issuance. A license renewal must be applied for on an annual basis.

Subp. 4. License to be posted. The license must be posted at the main entrance of a nursing home.

Subp. 5. Separate licenses. Separate licenses are required for institutions maintained on separate, noncontiguous premises even though operated under the same management. A separate license is not required for separate buildings maintained by the same owner on the same premises.

Common areas of cases I see include:  Falls from Beds, Hoyer Lifts and in the Bathroom; Sexual Abuse; Medication Errors and Other Injuries.  STOP ELDER ABUSE AND NEGLECT!

For more information about nursing home licensing requirements or other questions about elder abuse and neglect contact Nursing Home Neglect Attorney Kenneth LaBore for a free consultation at 612-743-9048 or by email at KLaBore@MNnursinghomeneglect.com.