Indiana § 16-28-2-12 - Visitation of a resident during a declared emergency; public health emergency, or crisis; burden of proof in denial of visitation

§ 16-28-2-12. Visitation of a resident during a declared emergency; public health emergency, or crisis; burden of proof in denial of visitation

Sec. 12. (a) As used in this section, "facility" includes the following:

(1) A health facility licensed under this article.

(2) A residential care facility.

(b) During a declared emergency, public health emergency, or similar crisis, a facility shall allow, in accordance with guidelines from the Centers for Medicare and Medicaid Services, visitation of a resident by the resident's family member, legal representative, clergy, or essential family caregiver (as determined in IC 16-28-6.5), or an individual who can meet the resident's needs, regardless of visitation restrictions implemented by the facility, in compassionate care situations, including the following:

(1) End of life situations.

(2) A recently admitted resident who is struggling to adapt to the facility and the lack of family support.

(3) A resident who is grieving the recent death of a family member or friend.

(4) A resident who is experiencing weight loss or dehydration and is in need of cuing and encouragement for eating or drinking that was previously provided to the resident by a family member or caregiver.

(5) A resident who is experiencing emotional distress and is not talking or interacting with others as the resident previously had.

(6) A resident who is diagnosed with Alzheimer's disease, dementia, or a related cognitive disorder, and is experiencing distress due to a lack of visitation.

(7) A resident who is failing to thrive.

(c) A facility has the burden of proof in justifying the facility's decision to deny visitation for a resident's family member, legal representative, or essential family caregiver in a compassionate care situation under this section.

As added by P.L.142-2021, SEC.4.

IC 16-28-2.5Chapter 2.5. Licensure and Certification Limitations

16-28-2.5-1Application 16-28-2.5-2"Comprehensive care bed" 16-28-2.5-3"Comprehensive care health facility" 16-28-2.5-4"Replacement facility" 16-28-2.5-5"Under development" 16-28-2.5-6Approval by the state department; application 16-28-2.5-6.5Exemptions from moratorium on new Medicaid certifications for comprehensive care health facilities 16-28-2.5-7Small house health facilities; application; approval 16-28-2.5-8Expiration

IC 16-28-2.5-1Application Sec. 1. This chapter does not apply to the conversion of acute care beds to comprehensive care beds under IC 16-29-3.

As added by P.L.257-2015, SEC.4.

IC 16-28-2.5-2"Comprehensive care bed" Sec. 2. (a) As used in this chapter, "comprehensive care bed" means a bed that:

(1) is within a comprehensive care health facility licensed under IC 16-28-2;

(2) functions as a bed within a comprehensive care health facility licensed under IC 16-28-2; or

(3) is otherwise subject to this article.

(b) The term does not include a comprehensive care bed that will be used solely to provide specialized services.

As added by P.L.257-2015, SEC.4.

IC 16-28-2.5-3"Comprehensive care health facility" Sec. 3. As used in this chapter, "comprehensive care health facility" means a health facility that provides:

(1) nursing care;

(2) room;

(3) food;

(4) laundry;

(5) administration of medications;

(6) special diets; and

(7) treatments;

and that may provide rehabilitative and restorative therapies under the order of an attending physician.

As added by P.L.257-2015, SEC.4.

IC 16-28-2.5-4"Replacement facility" Sec. 4. As used in this chapter, "replacement facility" means a new comprehensive care health facility licensed under or subject to this article after July 1, 2015, that:

(1) is constructed to take the place of an existing comprehensive care health facility that is licensed before July 1, 2017;

(2) is constructed within the same county as the existing comprehensive care health facility licensed before July 1, 2017; and

(3) contains no more comprehensive care beds than the existing comprehensive care health facility licensed before July 1, 2017.

As added by P.L.257-2015, SEC.4. Amended by P.L.217-2017, SEC.86.

IC 16-28-2.5-5"Under development" Sec. 5. As used in this chapter, "under development" refers to a health facility license application:

(1) to add, construct, or convert comprehensive care beds in a comprehensive care health facility that:

(A) is licensed under;

(B) is to be licensed under;

(C) is subject to; or

(D) will be subject to;

this article; and

(2) that meets all the following:

(A) Funding to construct the comprehensive care health facility has been secured and is actively being drawn upon or otherwise used to further and complete construction.

(B) Zoning requirements have been met.

(C) Complete construction design plans for the comprehensive care health facility have been submitted to the state department and the division of fire and building safety not later than March 1, 2015. The construction design plans must be an accurate and true depiction of the comprehensive care health facility that the applicant intends to construct. However, the construction design plans may be modified to make technical changes, correct errors and omissions, or comply with zoning or other requirements from a governmental entity.

(D) Active and ongoing construction activities progressing to completion of the project are occurring at the project site.

As added by P.L.257-2015, SEC.4.

IC 16-28-2.5-6Approval by the state department; application Sec. 6. (a) Except as provided in subsection (b), the state department may not approve the following:

(1) The licensure of:

(A) comprehensive care health facilities; or

(B) new or converted comprehensive care beds.

(2) The certification of new or converted comprehensive care beds for participation in the state Medicaid program unless the statewide comprehensive care bed occupancy rate is more than ninety-five percent (95%), as calculated annually on January 1 by the state department.

(3) Transfer between any comprehensive care facilities of licensed comprehensive care beds or comprehensive care bed certifications for participation in the state Medicaid program.

Beds in a health facility that provides residential nursing care under IC 16-28 may not be converted to comprehensive care beds.

(b) This section does not apply to the following:

(1) A comprehensive care health facility that:

(A) is licensed under;

(B) is to be licensed under;

(C) is subject to; or

(D) will be subject to;

this article and that is under development as of July 1, 2015.

(2) A small house health facility approved under section 7 of this chapter.

(3) A comprehensive care health facility that meets the conditions set forth in section 6.5 of this chapter.

(4) A continuing care retirement community that was registered under IC 23-2 before July 2, 2015, and that continuously maintains its registration under IC 23-2. If a continuing care retirement community fails to maintain registration under IC 23-2 after July 1, 2015, the comprehensive care beds, including beds certified for use in the state Medicaid program or the Medicare program, that the continuing care retirement community previously operated are not forfeited as long as the continuing care retirement community continues to comply with the licensure and certification requirements of this article.

(5) A comprehensive care health facility or a comprehensive care bed that is to be added or certified in the state Medicaid program in a county where the county's comprehensive care bed occupancy rate exceeds ninety percent (90%), as calculated by the state department on January 1 and July 1 of each year. The number of comprehensive care beds allowed under this subdivision may not exceed either:

(A) the number of beds that would cause the county occupancy rate to fall below the statewide average; or

(B) seventy (70) comprehensive care beds per applicant.

(6) A comprehensive care health facility that undergoes a change of ownership for purposes of:

(A) the granting of a license by the state department to operate the comprehensive care health facility; and

(B) the maintenance for any of the beds in the comprehensive care health facility, including Medicaid certified beds, by the entity granted a license by the state department.

However, after the change of ownership, the comprehensive care health facility is subject to subsection (a) unless the comprehensive care health facility meets the requirements under another subdivision under this subsection.

(c) The state department shall make the final determination concerning whether an entity has met or is meeting the requirements of this chapter concerning being under development.

As added by P.L.257-2015, SEC.4. Amended by P.L.217-2017, SEC.87.

IC 16-28-2.5-6.5Exemptions from moratorium on new Medicaid certifications for comprehensive care health facilities Sec. 6.5. A person may qualify for an exemption under section 6(b)(3) of this chapter, and the state department may approve a construction permit, a new or amended license to operate, or Medicaid certification for a comprehensive care health facility, if any of the following are met:

(1) The applicant is a replacement facility, and the comprehensive care health facility that is being replaced by the replacement facility:

(A) will no longer be licensed as a comprehensive care health facility sixty (60) days after the replacement facility obtains a license from the state department; and

(B) transfers any of the comprehensive care beds, including the certification status of the beds, to the replacement facility.

(2) The applicant is currently licensed to operate at least one (1) existing comprehensive care health facility, and the applicant has identified at least one (1) comprehensive care health facility that has agreed to transfer any of the comprehensive care health facility's comprehensive care beds, including the certification status of the beds to the applicant. A comprehensive care health facility transferring the licensure and certification of any comprehensive care beds to the applicant under this subdivision will no longer be licensed as a comprehensive care health facility sixty (60) days after the applicant obtains a license from the state department for additional comprehensive care beds.

(3) The applicant will be constructing at least one (1) comprehensive care health facility and meets the following criteria:

(A) The applicant has identified at least two (2) comprehensive care health facilities that have agreed to transfer any of the comprehensive care health facilities' beds, including the certification status of the comprehensive care beds, to the applicant's new comprehensive care health facility.

(B) The number of comprehensive care health facilities seeking to transfer comprehensive care beds to an applicant exceeds the number of new comprehensive care health facilities being constructed by the applicant.

(C) Unless granted an exception by both the state department and the office of Medicaid policy and planning, if a comprehensive care health facility seeking to transfer comprehensive care beds is located in a medically underserved area, as designated by the federal Health Resources & Services Administration, at least one (1) of the new comprehensive care health facilities must be constructed within five (5) minutes drive time or five (5) miles of the comprehensive care health facility that is located in the medically underserved area.

(D) The comprehensive care health facility transferring a comprehensive care bed, including the certified status of the comprehensive care bed, is no longer licensed as a comprehensive care health facility sixty (60) days after the applicant obtains a license from the state department.

As added by P.L.217-2017, SEC.88.

IC 16-28-2.5-7Small house health facilities; application; approval Sec. 7. (a) A small house health facility that is applying for licensure under this article, including an entity related to the small house health facility through common ownership or control, may apply to the state department for licensure or Medicaid certification of not more than fifty (50) comprehensive care beds for small house health facilities per year.

(b) The state department may not approve licensure or Medicaid certification of more than one hundred (100) new comprehensive care beds per year that are designated for small house health facilities.

(c) The state department shall approve an application for licensure or Medicaid certification for a small house health facility:

(1) in the order of the completed application date; and

(2) if the small house health facility applicant meets the definition of a small house health facility and the requirements of this section.

(d) A person that fails to complete construction and begin operation of a small house health facility within twelve (12) months after the state department's approval of a license under this article forfeits the person's right to any licensed or Medicaid certified comprehensive care bed that was previously approved by the state department if:

(1) another person has applied to the state department for approval of licensed or Medicaid certified comprehensive care beds for a small house health facility; and

(2) the person's application was denied for the sole reason that the maximum number of Medicaid licensed or certified comprehensive care beds specified in this section has been approved by the state department.

As added by P.L.257-2015, SEC.4.

IC 16-28-2.5-8Expiration Sec. 8. This chapter expires on the date on which all rules required by the following have taken effect:

(1) IC 16-29-7-13(f).

(2) IC 16-29-7-14(d).

(3) IC 16-29-7-19(a).

As added by P.L.257-2015, SEC.4. Amended by P.L.217-2017, SEC.89; P.L.202-2018, SEC.7.

IC 16-28-3Chapter 3. Probationary Licenses; Revocation of Licenses

16-28-3-1Initiation of proceedings; procedure 16-28-3-2Issuance of probationary licenses 16-28-3-3Facilities restricted to probationary licenses 16-28-3-4Duration of probationary licenses; reissuance; expiration of other licenses 16-28-3-5License fees