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SENATE FLOOR VERSION
April 1, 2024
ENGROSSED HOUSE
BILL NO. 3919 By: West (Tammy), Caldwell
(Chad), and Pittman of the
House
and
Garvin of the Senate
An Act relating to assisted living centers or
continuum of care facilities; defining terms;
mandating disclosure from referral agencies;
providing for prohibited conduct; providing duties
for referral agencies; regulating compensation;
providing for civil penalty; amending 63 O.S. 2021,
Section 1-742, which relates to prohibited acts and
penalties; adding exception; providing for
codification; and providing an effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1 -866.1 of Title 63, unless
there is created a duplication in numbering, reads as follows:
As used in this section:
1. "Assisted living center" means any home or establishment
offering, coordinating, or providing services to two or more persons
who:
a. are domiciled therein,
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b. are unrelated to the operator,
c. by choice or functional impairments, need assistance
with personal care or nursing supervision,
d. may need intermittent or unscheduled nursing care,
e. may need medication assistance, and
f. may need assistance with transfer and/or ambulation;
2. "Consumer" means an individual seeking a referral to an
assisted living center or continuum of care facility on behalf of
themselves or someone else as a representative;
3. "Continuum of care facility" mea ns a home, establishment, or
institution providing nursing facility services as defined in
Section 1-1902 of Title 63 of the Oklahoma Statutes and one or both
of the following:
a. assisted living center services as defined in the
Continuum of Care Assisted Living Act, and
b. adult day care center services as defined in Section
1-872 of Title 63 of the Oklahoma Statutes;
4. "Fee" means a commission paid to an individual or entity in
exchange for referring a consumer to an assisted living center or
continuum of care facility which results in a resident move -in;
5. "Referral" means iden tifying and referring a consumer to an
assisted living center or continuum of care facility to facilitate
an evaluation, in consultation with the community, of whether the
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assisted living center or continuum of care facility is a suitable
option for the consumer;
6. "Referral agency" means an entity that provides referrals to
assisted living centers or continuum of care facilities for a fee
collected from a consumer or an assis ted living center or continuum
of care facility. The term does not include:
a. an assisted living center or continuum of care
facility, its owners, or any of its employees or
contractors in their individual capacity, or
b. a resident or resident's family member who refers a
consumer to the assisted living center or continuum of
care facility regardless of whether that individual
receives a discount or other remuneration from the
assisted living center or continuum of care facility.
SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1-866.2 of Title 63, unless
there is created a duplication in numbering, reads as follows:
A. At the time of the referral, a referral agency shall
disclose the following to the consumer:
1. A description of the referral agency's service;
2. A statement on whether the consumer or the assisted living
center or continuum of care facility to which the consumer is
referred is responsible for paying the referral fee; and
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3. A statement that the consumer may, without cause or penalty,
stop using the referral agency. The referral agency shall
communicate this decision by the consumer to all assisted living
centers or continuum of care facilities to which the consumer has
been referred upon being notified by the consumer that they plan to
stop using the referral agency. Notification by a consumer shall
not affect the contractual agreement between the referral agency and
the assisted living center or continuum of care facil ities.
B. The referral agency shall make the disclosure statement
available to a consumer in a clear and conspicuous written physical
or electronic document.
C. The referral agency shall take into account the consumers'
preferences in selecting the assis ted living center or continuum of
care facility to which it refers the consumer and cost shall not be
used as the sole factor in that selection.
D. An assisted living center or continuum of care facility
shall not be required to contract with or do busine ss with a
referral agency.
SECTION 3. NEW LAW A new sect ion of law to be codified
in the Oklahoma Statutes as Section 1 -866.3 of Title 63, unless
there is created a duplication in numbering, reads as follows:
A referral agency shall not:
1. Refer a consumer to an assisted living center or continuum
of care facility in which the referral agency has an ownership,
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management, or financial interest excluding a de minimis interest,
such as a direct or indirect ownership of less than one percent (1%)
of an assisted living center or continuum of care facility;
2. Hold a power of attorney or hold property in any capacity
for a consumer or for whom a referral is made;
3. Refer a consumer to an assisted living center or continuum
of care facility that, to the referral agency's knowledge, is
unlicensed and is not exempt from licensing under applicable law;
4. Collect a fee for a consumer transferring from one location
of an assisted living center or continuum of care facility to
another location of the same assisted living center or continuum of
care facility unless the consumer has engaged the referral agency to
help facilitate the transfer to a new location and the consumer has
been provided with more than one referral; or
5. Collect a fee for a referral after the expiration of the
referral according to the contract between the referral agency and
the assisted living center or continuum of care facility.
SECTION 4. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1 -866.4 of Title 63, unless
there is created a dupli cation in numbering, reads as follows:
A referral agency shall:
1. Use a nationally accredited service provider to obtain
criminal history record information upon hire, on a r eferral agency
employee who has direct contact with a consumer; provided, however,
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that a referral agency employee who physically enters an assisted
living center or continuum of care facility with the purpose of
making a referral on behalf of a consumer, shall obtain a criminal
background check, in accordance with paragraph 1 of subs ection I of
Section 1-1947 of Title 63 of the Oklahoma Statutes;
2. Maintain liability insurance coverage for negligent acts or
omissions by the referral agency or its employe es;
3. Audit each assisted living center or continuum of care
facility to which the referral agency provides referrals to ensure
that any applicable license is in good standing and maintain a
record of that audit;
4. Provide all referral agency employees whose job
responsibilities require direct contact with a consumer with
introductory training, including training on the referral agency's
code of conduct, before the employee begins performing those
responsibilities;
5. Provide an assisted living center or continuum of care
facility with the time and date on which any referral has been made
to the assisted living center or continuum of care facility in a
clear and conspicuous written physical or electronic document on or
before the date the consumer is ad mitted; and
6. After November 1, 2024, provide any new written contract
with an assisted living center or continuum of care facility for
which it is making referrals the length of time that a referral
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agency shall be paid from the date that the referral w as made to the
assisted living center or continuum of care facility not to exceed
thirty-six (36) months.
SECTION 5. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1 -866.5 of Title 63, unless
there is created a duplication in numbering, reads as follows:
A. A written contract e ntered into between a referral agency
and an assisted living center or continuum of care facility may
provide for the compensation of a referral agency for all referrals
made to an assisted living center or continuum of care facility;
such compensation may include, without limitation, amounts based on
volume or value of referrals or business otherwise generated between
the parties.
B. Compensation paid to a referral agency that complies with
the requirements set forth in this section will not be grounds fo r
disciplinary action against a long -term care administrator pursuant
to OAC 310:679-10-20 or any other rule or statute regulating long -
term care administrators.
SECTION 6. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1 -866.6 of Title 63, unless
there is created a duplication in numbering, reads as follows:
A. A referral agency that violates this act is subject to a
civil penalty in an amount equal to Five Hundred Dollars ($500.00)
for each violation.
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B. The Attorney General or a district attorney may bring an
action to recover a civil penalty imposed under subsection A of this
section and to restrain and enjoin a viola tion of this act. The
Attorney General or a district attorney may recover attorney fees
and litigation costs incurred in bringing the action.
SECTION 7. AMENDATORY 63 O.S. 2021, Section 1 -742, is
amended to read as follows:
Section 1-742. A. 1. Any person who intentionally or
knowingly pays to or accepts anything of value from any person,
firm, association of persons, partnership or corporation for
securing or soliciting patients for any health care professional,
health care provider, or other entity providing health care services
in this state, upon conviction, shall be guilty of a misdemeanor and
shall be punished by a fine of not less than Five Hundred Dollars
($500.00) and not more than Two Thousand Dollars ($2,000.00).
2. In addition to any other penalties or remedies provided by
law:
a. a violation of this section by a health care
professional or health care provider shall be grounds
for disciplinary action by the state agency licensing,
certifying or registering such prof essional or
provider, and
b. the state agency licensing, certifying , or registering
such professional or provider may institute an action
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to enjoin violation or potential violation of this
section.
B. This section shall not be construed to prohibit:
1. Advertising, except that advertising which:
a. is false, misleading or deceptive,
b. advertises professional superiority or the performance
of a professional service in a superior manner, and
c. is not readily subject to verification;
2. Remuneration for a dvertising, marketing , or other services
that are provided for the purpose of securing or soliciting
patients, provided the remuneration is:
a. set in advance,
b. consistent with the fair market value of the services,
and
c. not based on the volume or valu e of any patient
referrals or business otherwise generated between the
parties; and
3. Any payment, business arrangements , or payments practice not
prohibited by 42 U.S.C., Section 1320a -7b(b), or any regulations
promulgated pursuant thereto.
C. This section shall not apply to licensed insurers, including
but not limited to, group hospital service corporations or health
maintenance organizations which reimburse, provide, offer to
provide, or administer hospital, medical, dental , or other health-
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related benefits under a health benefits plan for which it is the
payor when it is providi ng those services under a health benefits
plan, or referral agency as defined in paragraph 4 of Section 1 of
this act.
D. For purposes of this section:
1. "Health care profes sional" means any person who offers or
provides counseling or health or mental health care under a license,
certification or registration issued pursuant to Title 59 of the
Oklahoma Statutes; and
2. "Health care provider" means any hospital or related
institution offering or providing health care services licensed
pursuant to Section 1-702 of this title.
SECTION 8. This act shall become effective November 1, 2024.
COMMITTEE REPORT BY: COMMITTEE ON BUSINESS AND COMMERCE
April 1, 2024 - DO PASS