And the Census Says…

Minnesota found out this week that it will keep all eight congressional seats. It has been hypothesized for decades that Minnesota was likely to lose a seat, but we have continued to hold on to it. However, this year was likely the closest margin yet. If New York had counted an additional 89 people, it would have retained the seat that it is losing, and Minnesota would have lost a seat.

Can it Function?

No, the Campaign Finance and Public Disclosure Board cannot currently function due to a lack of board members. A full board consists of six members, and while Governor Tim Walz recently appointed four new members to fill the board positions (two members were confirmed previously), only one of the four was approved by the legislature. Because of the inaction on the other three appointees, Gov. Walz must appoint new members and the board cannot meet until he does so.

Telehealth Moves Forward

This week the Senate passed a bill to modernize Minnesota’s telehealth laws. Even though the existing statutes were put into place only a handful of years ago, many experts believe the pandemic advanced the implementation and use of telehealth by many years. Negotiations are continuing on details of the legislation, with the primary areas of discussion being whether payment parity (which currently exists in law) will be fully maintained and whether or not a sunset should be included to force the legislature to address the issue again within a couple years.

Conference Committees Begin

Five members from each legislative body have been appointed to serve as conferees on the more than a dozen major appropriations bills that need to pass before the end of session. With the constitutionally-mandated end to the legislative session just a little more than two weeks away, much remains to be done. Conferees are beginning to hammer out policy details, but final decisions won’t happen until leadership agrees to final budget targets.

Anticipating Another Dial Turn

Governor Walz stated this week that he is likely to announce further loosening of restrictions sometime soon. As COVID-19 case numbers and resulting hospitalizations continue to decline, many Minnesotans are anxious to see a further return to life as it was prior to the pandemic.

In this edition of WIT AND WISDOM OF WINTHROP, our Employment Litigation Newsletter, look for information on our new mediation practice, the upcoming Paycheck Protection Program forgiveness application deadline, how to avoid litigation resulting from employees’ social media posts and more!

Click here to read the issue!

Welcome to the first issue of WIT AND WISDOM OF WINTHROP, a newsletter covering topics and issues in employment litigation. Within these newsletters, our team will share recent and upcoming deadlines, descriptions of developing case law that may be relevant to your business, lessons learned from real-life examples, all from the perspective of our employment litigation team with decades of experience.

If you have employees, supervise employees, are an employee or know employees, there will be something of interest to you!

Click here to read the issue!

In this edition of WIT AND WISDOM OF WINTHROP, our Employment Litigation Newsletter, look for answers to the top three questions we’re seeing from employers about the COVID-19 vaccine, and the status of Van Buren v. United States, in which the Supreme Court is considering the issue of employee misuse of access to information.

Click here to read the issue!

Guilty Verdict

Earlier this week, former Minneapolis police officer Derek Chauvin was found guilty of murdering George Floyd. While officials had feared massive demonstrations with the possibility of violence or property damage, the reality was more akin to celebratory gatherings. Operation Safety Net, the name given to a unified security task force that had been created prior to the trial, has been winding down operations, as barricades and plywood are being removed from buildings.

Omnibus Bills – and PPP Conformity

The House and Senate have been busy this week passing omnibus finance bills on the floor, and have begun appointing members to conference committees to work out the differences between the House and Senate positions. Of importance to many is that both the House and Senate tax bills include federal conformity for Paycheck Protection Program loans, though the House only does so for loans less than $350,000.

Cannabis Legalization

Aside from omnibus bills, very few bills have been moving. An exception is H.F. 600, authored by Rep. Ryan Winkler (DFL-Golden Valley), which would legalize adult-use recreational cannabis. This bill has had four hearings in the last two weeks, and has now been heard in a total of nine different committees. Though there is an expectation that this legislation is likely to pass the House this year, no action is expected in the Senate.

New Commerce Commissioner

Late last week, Governor Tim Walz appointed Grace Arnold as the Commissioner of the Department of Commerce. The Department of Commerce oversees financial, insurance and energy industries in the state. Commissioner Arnold had previously been serving as commissioner on a temporary basis.

Vaccines on the Move

For the first time, some areas of the state are seeing a lessened demand for COVID-19 vaccines. In spite of this, there are still few locations that are seeing appointments go unclaimed, as people remain willing to drive significant distances to secure the shot. Additionally, Minnesota announced earlier this week that they would create mobile vaccination units to try to make vaccination easier for underserved populations.

Minnesota’s Biggest Story

The trial of Derek Chauvin in the death of George Floyd has put Minnesota in the national spotlight for the last few weeks. That trial is wrapping up, with closing arguments scheduled for Monday. Unfortunately, the spotlight was intensified earlier this week when Daunte Wright was shot and killed by a Brooklyn Center police officer approximately ten miles from the location of the trial. Protests have occurred each night since Sunday, and some areas have instituted curfews. With these two events, the National Guard has been called up while Minneapolis and the surrounding areas have been focused on public safety.

The Next Chapter

With the passing of the final deadline last week, the legislature has moved into a new phase. The House has passed each of the omnibus finance and policy bills out of the Ways and Means committee, with only the Tax and Capital Investment bills remaining. The Senate has also been passing omnibus bills out of the Finance committee, but likely won’t finish until near the end of next week. Both the House and Senate have also begun passing the omnibus bills off their respective floors.

Federal Funds Could Throw a Wrench in the Process

While the House and Senate are both passing omnibus finance bills, the final agreements could look very different. Billions of federal dollars will be coming in to the state coffers, but many details, including final amounts, how funds will be broken down, and anticipated guidance on use of funds, are needed prior to finalizing decisions. These details are expected to come into greater focus in early May. Of particular note is that, if the legislature and Governor Tim Walz are unable to agree on how and where to use these federal funds, the Governor will be able to use them at his discretion.

Emergency Powers Continue

Governor Walz acted this week to extend the state’s peacetime emergency for another 30 days. This current emergency order will expire on Friday, May 14. Once the legislature adjourns from regular session, which will happen on or before May 17, the Governor will be required to call the legislature in for a special legislative session if he continues to extend the peacetime emergency.

Vaccine Passports

While the chair of the Senate Health and Human Services committee, Sen. Michelle Benson (R-Ham Lake), has been vocal about her opposition to COVID-19 vaccine passports for a long time, last week, Governor Walz also stated that he has “no intention of doing vaccine passports” in Minnesota. Additionally, this week separate bills were introduced in both the House and Senate regarding related issues. A bill introduced by Rep. Tony Albright (R-Prior Lake), H.F. 2511, would prohibit government-issued vaccine passports and further states that “no entity doing business in Minnesota shall require patrons or customers to provide documentation certifying vaccination or post-transmission recovery to gain access to, entry upon, or service from the business.” S.F. 2424, authored by Sen. Jim Abeler (R-Anoka), would prohibit employers from discriminating against employees in any way based on vaccination status.

Final Committee Deadline

Today marks the final committee deadline—the day when all omnibus finance bills must pass out of committee and advance to the House Ways and Means Committee or the Senate Finance Committee. The only committees exempt from this deadline are the Capital Investment and Tax committees, as well as the Senate Finance and House Ways and Means committees. Next week (and likely spilling over into the following week), omnibus bills will get a last look in these remaining committees.

Action Moves to the Floor

The Senate announced that members should expect to vote on bills every time the Senate meets for the foreseeable future. As committees wrap up their work and the focus shifts to floor action, the same is likely for the House. Expect to see the first floor votes on omnibus bills by the middle of next week. Typically, the bills with smaller budgets and fewer controversial issues make it to the floor first.

Tax Bills in Limbo

Don’t be surprised if the tax bills are the last of the omnibus bills to be passed. As previously mentioned, the tax committees don’t have to abide by the committee deadlines. The House did release its tax bill early in the week, and not surprisingly, it contains several controversial provisions, including a new fifth income tax tier, and limits on federal conformity for Paycheck Protection Program loans. The Senate has yet to release an omnibus tax bill.

New Leader for Republican Party?

This weekend, the state Republican Party will vote for a new party chair. Incumbent chair Jennifer Carnahan is seeking re-election, but is being challenged by state Senator Mark Koran (R-North Branch). Issues in the campaign have included the future strategy of the party, including the role of allies of former President Trump, fundraising and personalities.

Uncertain Future

Minnesota has been proud of its vaccination efforts in the fight against COVID, but in recent weeks the virus has continued to spread rapidly. The state was one of the first to identify the B117 variant spreading among its population, and has since seen a significant increase in cases and hospitalizations. In spite of roughly one-third of Minnesotans being vaccinated, cases have increased approximately 60% in the last two weeks, leaving some to fear more restrictions are on the way, just as the state has been able to open up more.

Gimme a Break!

Following a busy week and a handful of committee hearings today, the legislature will begin its ten-day break. The break officially begins on Saturday, March 27, and lasts until 8:30 a.m. on Tuesday, April 6. While some legislators will enjoy the break, others will be putting the final touches on their proposed committee budget recommendations. By the end of the day on Friday, April 9, nearly all committees are expected to have passed their omnibus budget bills out of committee.

Gimme a Break!

In spite of the legislative break, don’t be surprised if you continue hearing about legislative issues. Traditionally, the legislative break provides an excellent opportunity for elected officials to spend some time back in their districts to hear from their constituents. With omnibus bills on the horizon, advocacy groups often use this time to activate their members and fill local media with political messages.

The House Will Take a Piece

The DFL-led House of Representatives released committee budget targets earlier this week, with a total proposed budget of $52.5 billion. This proposed budget is approximately $300 million higher than the Governor’s revised proposal and $700 million more than the Senate’s target.

Grab Your Kit-Kat Bar

On Thursday, Governor Tim Walz announced that Minnesota would open up COVID-19 vaccine eligibility to all residents aged 16 and over, beginning March 30. For those that haven’t yet been eligible and are anxious to get the vaccine as quickly as possible, be aware that initially the demand is expected to far exceed supply. If you are able to get in to your Thrifty White or other community drugstore, grab a candy bar while you are there and celebrate!

In Other News

The Minnesota Supreme Court this week overturned a third-degree sexual assault conviction in which a man took home an intoxicated woman and allegedly assaulted her. The Court ruled that the statute’s definition of “mentally incapacitated” does not include a person who is voluntarily intoxicated. Anticipating this ruling was likely, the House has been advancing a bill, H.F. 707 (Moller), that would close this loophole.

Busy busy busy!

By the end of today, the Minnesota legislature’s second deadline will have come and gone. At this point, all bills are supposed to have cleared all policy committees. Thus, committees that have no financial jurisdiction have concluded their regular meetings, though they may be called back to hear a provision that missed a deadline or conduct an informational hearing. Finance committees will continue their work next week, before taking a break from March 27-April 5. By April 9^th, the third deadline, all omnibus finance bills will be public.

Who’s in charge?

In an unusual move early in the week, the minority House Republican caucus announced the floor session agenda for the week. They held a press conference to lament their belief that the majority caucus has been the least productive in modern history, and to provide notice that they intended to try to bring four different proposals—creation of the SAFE account, PPP tax conformity, unemployment insurance tax exemption, and in-person summer school program and funding—to the floor throughout the course of the week. Each of the procedural motions to bring up these issues failed.

Paid leave efforts continue in House

House Democrats have continued to advance two proposals through committees that they argue provide more family-friendly workplace environments. One proposal is to require a paid family and medical leave program for most workers in the state; another would require that workplaces provide earned safe and sick time to workers. While it seems these bills have traveled to nearly every committee in the House, the Senate hasn’t had any hearings on either issue.

Senate makes a statement

The Senate announced their budget targets on Tuesday, providing them with another opportunity to highlight their priorities. Included in their $51.9 billion budget proposal is a 40% allocation for education, 31% for healthcare, nearly $600 million for tax relief and a 5% reduction in administrative costs.

Governor revises his budget

As expected on Thursday, Governor Tim Walz released his revised budget proposal, based on the February budget forecast. While the updated forecast showed a dramatic swing from a deficit to a $1.6 billion projected surplus, the revised budget was comprised of tweaks to the original proposal, rather than full-scale changes. The biggest shifts occurred in the tax area, where increases were dramatically scaled back. For example, Walz dropped his proposed tax increase on cigarettes, but the proposal maintains a proposed fifth-tier tax bracket.

Minnesota’s new Assisted Living License goes into effect August 1, 2021. With less than five months remaining before the deadline, providers need to act immediately to make sure they are prepared for the new requirements, which are detailed and extensive. Follow our series highlighting some of the more important aspects to be prepared to address.

To discuss any of these questions or any others about the new Assisted Living Licensure, please don’t hesitate to contact us.

1. 1. 1. Have you created the new assisted living resident agreement?
      2. Have you budgeted for the increased licensing fees?
      3. Have you planned and budgeted for the new minimum staffing requirements?
      4. Are you prepared to offer meals and snacks meeting the new statutory requirements?
      5. Do you know when you can terminate an assisted living contract with a resident?
      6. Are you prepared to defend resident terminations through the termination appeal process?
      7. Have you hired your Assisted Living Director yet?
      8. How will you ensure compliance with Minnesota’s new assisted living facility standards?
      9. Is your recordkeeping ready for Minnesota’s new standards?
      10. Are you prepared to transition to the assisted living license?
      11. Are you ready to fill out the assisted living license application?
      12. We all know about the assisted living law change, but have you heard about the new assisted living rules?

1. Have you created the new assisted living resident agreement?
Even if you are already providing comprehensive home care services and have existing resident contracts in place, providers transitioning to the assisted living license will need to create compliant resident agreements to include all of the requirements set forth in the new statute. Sample agreements must be submitted with the assisted living license application. Each current resident will need to sign a new agreement. While many of the content requirements will be familiar, there are new content requirements for, among other things, the right to and process for terminating an assisted living contract.

Minn. Stat. 144G.50.

2. Have you budgeted for the increased licensing fees?
The licensing fee for an Assisted Living License is $2000 plus $75 per resident. The licensing fee for an Assisted Living License with Dementia Care is $3000 plus $100 per resident. While the Minnesota Department of Health has not stated whether the per resident charge will be based upon current census at the time of application or will be based upon licensed resident capacity, the increased fees could be substantial for facilities or campuses with a large number of residents. Likewise, for smaller, home-based facilities, the increased fees could also constitute a significant relative increase in the budget. The stated rationale for the increase in fees is because of the expanded required review and oversight that MDH must perform.

Minn. Stat 144.122

3. Have you planned and budgeted for the new minimum staffing requirements?
The new assisted living statute sets forth certain minimum staffing requirements. Of particular note is that an assisted living facility is now required to ensure that one or more awake staff persons are available 24 hours per day, seven days per week, who are responsible for responding to the requests of residents for assistance with health and safety needs and must be:

• capable of communicating with residents
• capable of providing or summoning the appropriate assistance
• capable of following directions

The awake staff person must be located in the same building, in an attached building or on a contiguous campus and able to respond within a reasonable amount of time.

Minn. Stat. 144G.41

4. Are you prepared to offer meals and snacks meeting the new statutory requirements?
Residents must be permitted access to food at any time. In addition, assisted living facilities must offer to provide or make at least three nutritious meals daily with snacks available, according to the recommended dietary allowances in the United States Department of Agriculture guidelines, including seasonal fresh fruit and vegetables. Menus must be prepared at least one week in advance and the facility must encourage residents’ involvement in meal planning. Food must be prepared and served according to Minnesota Food Code. The facility cannot require a resident to include and pay for meals in their contract.

Minn. Stat. 144G.41

5. Do you know when you can terminate an assisted living contract with a resident?
Terminating an assisted living contract is always a difficult decision. Minnesota’s new assisted living law creates new steps and considerations that must be completed before such a decision is made. Before issuing a notice of termination to a resident, you must schedule a meeting with the resident, the resident’s legal representative, and the resident’s designated representative to explain the reasons for the proposed termination and identify and offer reasonable accommodations or modifications, interventions, or alternatives to avoid the termination or enable the resident to remain in the facility.

Termination can only occur in limited situations, and some examples include nonpayment of rent or services, violation of the assisted living contract, conduct that threatens the health or safety of the resident or another individual in the facility, and illegal conduct. Notices of termination have strict requirements as well.

Minn. Stat. 144G.52.

6. Are you prepared to defend resident terminations through the termination appeal process?
Once you have fully complied with the resident termination process, including the required pre-termination meeting and inclusion of the required contents within a notice of termination, you must understand the resident’s appeal rights. Minnesota’s new assisted living law provides additional safeguards for residents, which allows them to appeal the termination of an assisted living contract.

An appeal may be initiated on very broad grounds, such as if there is a factual dispute as to whether the facility had a permissible basis to initiate the termination; the termination would result in great harm or the potential for great harm to the resident as determined by the totality of the circumstances, except in circumstances where there is a greater risk of harm to other residents or staff at the facility; the resident has cured or demonstrated the ability to cure the reasons for the termination, or has identified a reasonable accommodation or modification, intervention, or alternative to the termination; or the facility has terminated the contract in violation of state or federal law.

Appeals are heard by an Administrative Law Judge assigned by the Minnesota Office of Administrative Hearings, and the facility carries the burden of proof to establish that the termination was permissible in certain circumstances.

Minn. Stat. 144G.54

7. Have you hired your Assisted Living Director yet?
As you start preparing and applying for the new assisted living license, you need to consider who will (and has the required training and qualifications to) act as your facility’s Licensed Assisted Living Director. As part of the application process, you must submit the names, e-mail addresses, telephone numbers, and mailing addresses of all owners, controlling individuals, managerial officials, and the Assisted Living Director.

Licensed Assisted Living Director is defined as a person who administers, manages, supervises, or is in general administrative charge of an assisted living facility, whether or not the individual has an ownership interest in the facility, and whether or not the person’s functions or duties are shared with one or more individuals and who is licensed by the Board of Executives for Long Term Services and Supports.

Minnesota rules for Assisted Living Licensure are currently being finalized. Once the rules are published, the details regarding the education, training, and other requirements for Assisted Living Directors will be set forth in more detail.

Minn. Stat. 144G.08, subd. 6 and 144G.12

8. How will you ensure compliance with Minnesota’s new assisted living facility standards?
As you may have experienced from prior surveys by the Minnesota Department of Health, there were already strict requirements for ensuring resident safety through policies and procedures, record keeping, and overall resident treatment consistent with the applicable standard of care. As of August 1, 2021, these standards are changing, and you must be prepared from day 1 for a survey from the Department of Health.

The Department of Health may refuse to grant a provisional license, refuse to grant a license as a result of a change in ownership, refuse to renew a license, suspend or revoke a license, or impose a conditional license if the owner, controlling individual, or employee of an assisted living facility for various reasons. Your facility may also be subject to fines and other types of discipline based on the determined level and scope of the violations.

Minn. Stat. 144G.20, 144G.30, and 144G.31

9. Is your recordkeeping ready for Minnesota’s new standards?
Your facility should already have policies and procedures in place to prevent the illegal disclosure of a resident’s protected health information to comply with HIPAA, HITECH, and the Minnesota Health Records Act. With that being said, Minnesota’s new assisted living law requires that each facility establish and implement written procedures to control use, storage, and security of resident records, as well as establish criteria for release of resident information.

In addition, there are robust requirements to ensure a full and complete resident treatment record, and strict requirements for providing access to records.

Minn. Stat. 144G.43

10. Are you prepared to transition to the assisted living license?
If you currently hold a comprehensive home care license and a housing with services registration, there are big changes that you must consider. You need to act fast to determine whether you will provide “assisted living services,” as defined by Minnesota law, under an assisted living license, or whether you meet an exception to assisted living licensure.

Depending on your current ownership structure, you will need to determine how to transition not only your license, but also your service plans and assessments, employees, background studies, enrollment as a Minnesota Health Care Provider, and more. Based on your decisions, you may also be required to give your residents statutorily required notice of any such changes.

Minn. Stat. 144G.191

11. Are you ready to fill out the assisted living license application?
The assisted living license application is coming soon! The Minnesota Department of Health has stated that it expects to post the application on or around May 1, 2021. If you currently hold a housing with services registration and a comprehensive home care license and plan on providing assisted living services on or after August 1, 2021, you must apply for an assisted living facility license no later than June 1, 2021. Check your Improved Customer Service Delivery Portal for updates, and please reach out to our team with any questions.

12. We all know about the assisted living law change, but have you heard about the new assisted living rules?
The Minnesota Legislature delegated authority to the Minnesota Department of Health to adopt rules governing assisted living facilities. On January 19, and 20, 2021, the Minnesota Department of Health held a remote-access public hearing on the proposed rules for assisted living licensure. The hearing provided interested persons the opportunity to testify regarding the proposed rules.

These rules will impact how your facility operates just as much (if not more than) as the assisted living law itself. Minnesota Rules Chapter 4659 further details and sets forth standards for, among many other topics:

• staffing;
• training;
• discharge planning and resident appeal rights;
• initial assessments;
• checklist disclosure of services;
• emergency disaster and preparedness plans; and
• much, much more.

As the license transition date approaches, let us know how we can help you be prepared for the August 1, 2021, transition date.

Minn. Stat. 144G.09, subd. 3; Minn. R. C. 4659.