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HF 339

as introduced - 93rd Legislature (2023 - 2024) Posted on 02/08/2023 10:25am

KEY: stricken = removed, old language.
underscored = added, new language.

Current Version - as introduced

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A bill for an act
relating to human services; modifying licensure requirements for community
residential settings; amending Minnesota Statutes 2022, section 245A.11,
subdivisions 7, 7a; proposing coding for new law in Minnesota Statutes, chapter
245D.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2022, section 245A.11, subdivision 7, is amended to read:


Subd. 7.

Adult foster care; variance for alternate overnight supervision.

(a) The
commissioner may grant a variance under section 245A.04, subdivision 9, to rule parts
requiring a caregiver to be present in an adult foster care home during normal sleeping hours
to allow for alternative methods of overnight supervision. The commissioner may grant the
variance if the local county licensing agency recommends the variance and the county
recommendation includes documentation verifying that:

(1) the county has approved the license holder's plan for alternative methods of providing
overnight supervision and determined the plan protects the residents' health, safety, and
rights;

(2) the license holder has obtained written and signed informed consent from each
resident or each resident's legal representative documenting the resident's or legal
representative's agreement with the alternative method of overnight supervision; and

(3) the alternative method of providing overnight supervision, which may include the
use of technology, is specified for each resident in the resident's: (i) individualized plan of
care; (ii) individual service plan under section 256B.092, subdivision 1b, if required; or (iii)
individual resident placement agreement under Minnesota Rules, part 9555.5105, subpart
19, if required.

(b) To be eligible for a variance under paragraph (a), the adult foster care license holder
must not have had a conditional license issued under section 245A.06, or any other licensing
sanction issued under section 245A.07 during the prior 24 months based on failure to provide
adequate supervision, health care services, or resident safety in the adult foster care home.

(c) A license holder requesting a variance under this subdivision to utilize technology
as a component of a plan for alternative overnight supervision may request the commissioner's
review in the absence of a county recommendation. Upon receipt of such a request from a
license holder, the commissioner shall review the variance request with the county.

(d) deleted text begin A variance granted by the commissioner according to this subdivision before January
1, 2014, to a license holder for an adult foster care home must transfer with the license when
the license converts to a community residential setting license under chapter 245D. The
terms and conditions of the variance remain in effect as approved at the time the variance
was granted
deleted text end new text begin The variance requirements under this subdivision for alternative overnight
supervision do not apply to community residential settings licensed under chapter 245D
new text end .

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective January 1, 2024.
new text end

Sec. 2.

Minnesota Statutes 2022, section 245A.11, subdivision 7a, is amended to read:


Subd. 7a.

Alternate overnight supervision technology; adult foster care deleted text begin and
community residential setting
deleted text end licenses.

(a) The commissioner may grant an applicant or
license holder an adult foster care deleted text begin or community residential settingdeleted text end license for a residence
that does not have a caregiver in the residence during normal sleeping hours as required
under Minnesota Rules, part 9555.5105, subpart 37, item B, or section 245D.02, subdivision
33b
, but uses monitoring technology to alert the license holder when an incident occurs that
may jeopardize the health, safety, or rights of a foster care recipient. The applicant or license
holder must comply with all other requirements under Minnesota Rules, parts 9555.5105
to 9555.6265, or applicable requirements under chapter 245D, and the requirements under
this subdivision. The license printed by the commissioner must state in bold and large font:

(1) that the facility is under electronic monitoring; and

(2) the telephone number of the county's common entry point for making reports of
suspected maltreatment of vulnerable adults under section 626.557, subdivision 9.

(b) Applications for a license under this section must be submitted directly to the
Department of Human Services licensing division. The licensing division must immediately
notify the county licensing agency. The licensing division must collaborate with the county
licensing agency in the review of the application and the licensing of the program.

(c) Before a license is issued by the commissioner, and for the duration of the license,
the applicant or license holder must establish, maintain, and document the implementation
of written policies and procedures addressing the requirements in paragraphs (d) through
(f).

(d) The applicant or license holder must have policies and procedures that:

(1) establish characteristics of target populations that will be admitted into the home,
and characteristics of populations that will not be accepted into the home;

(2) explain the discharge process when a resident served by the program requires
overnight supervision or other services that cannot be provided by the license holder due
to the limited hours that the license holder is on site;

(3) describe the types of events to which the program will respond with a physical
presence when those events occur in the home during time when staff are not on site, and
how the license holder's response plan meets the requirements in paragraph (e), clause (1)
or (2);

(4) establish a process for documenting a review of the implementation and effectiveness
of the response protocol for the response required under paragraph (e), clause (1) or (2).
The documentation must include:

(i) a description of the triggering incident;

(ii) the date and time of the triggering incident;

(iii) the time of the response or responses under paragraph (e), clause (1) or (2);

(iv) whether the response met the resident's needs;

(v) whether the existing policies and response protocols were followed; and

(vi) whether the existing policies and protocols are adequate or need modification.

When no physical presence response is completed for a three-month period, the license
holder's written policies and procedures must require a physical presence response drill to
be conducted for which the effectiveness of the response protocol under paragraph (e),
clause (1) or (2), will be reviewed and documented as required under this clause; and

(5) establish that emergency and nonemergency phone numbers are posted in a prominent
location in a common area of the home where they can be easily observed by a person
responding to an incident who is not otherwise affiliated with the home.

(e) The license holder must document and include in the license application which
response alternative under clause (1) or (2) is in place for responding to situations that
present a serious risk to the health, safety, or rights of residents served by the program:

(1) response alternative (1) requires only the technology to provide an electronic
notification or alert to the license holder that an event is underway that requires a response.
Under this alternative, no more than ten minutes will pass before the license holder will be
physically present on site to respond to the situation; or

(2) response alternative (2) requires the electronic notification and alert system under
alternative (1), but more than ten minutes may pass before the license holder is present on
site to respond to the situation. Under alternative (2), all of the following conditions are
met:

(i) the license holder has a written description of the interactive technological applications
that will assist the license holder in communicating with and assessing the needs related to
the care, health, and safety of the foster care recipients. This interactive technology must
permit the license holder to remotely assess the well being of the resident served by the
program without requiring the initiation of the foster care recipient. Requiring the foster
care recipient to initiate a telephone call does not meet this requirement;

(ii) the license holder documents how the remote license holder is qualified and capable
of meeting the needs of the foster care recipients and assessing foster care recipients' needs
under item (i) during the absence of the license holder on site;

(iii) the license holder maintains written procedures to dispatch emergency response
personnel to the site in the event of an identified emergency; and

(iv) each resident's individualized plan of care, support plan under sections 256B.0913,
subdivision 8; 256B.092, subdivision 1b; 256B.49, subdivision 15; and 256S.10, if required,
or individual resident placement agreement under Minnesota Rules, part 9555.5105, subpart
19, if required, identifies the maximum response time, which may be greater than ten minutes,
for the license holder to be on site for that resident.

(f) Each resident's placement agreement, individual service agreement, and plan must
clearly state that the adult foster care deleted text begin or community residential settingdeleted text end license category is
a program without the presence of a caregiver in the residence during normal sleeping hours;
the protocols in place for responding to situations that present a serious risk to the health,
safety, or rights of residents served by the program under paragraph (e), clause (1) or (2);
and a signed informed consent from each resident served by the program or the person's
legal representative documenting the person's or legal representative's agreement with
placement in the program. If electronic monitoring technology is used in the home, the
informed consent form must also explain the following:

(1) how any electronic monitoring is incorporated into the alternative supervision system;

(2) the backup system for any electronic monitoring in times of electrical outages or
other equipment malfunctions;

(3) how the caregivers or direct support staff are trained on the use of the technology;

(4) the event types and license holder response times established under paragraph (e);

(5) how the license holder protects each resident's privacy related to electronic monitoring
and related to any electronically recorded data generated by the monitoring system. A
resident served by the program may not be removed from a program under this subdivision
for failure to consent to electronic monitoring. The consent form must explain where and
how the electronically recorded data is stored, with whom it will be shared, and how long
it is retained; and

(6) the risks and benefits of the alternative overnight supervision system.

The written explanations under clauses (1) to (6) may be accomplished through
cross-references to other policies and procedures as long as they are explained to the person
giving consent, and the person giving consent is offered a copy.

(g) Nothing in this section requires the applicant or license holder to develop or maintain
separate or duplicative policies, procedures, documentation, consent forms, or individual
plans that may be required for other licensing standards, if the requirements of this section
are incorporated into those documents.

(h) The commissioner may grant variances to the requirements of this section according
to section 245A.04, subdivision 9.

(i) For the purposes of paragraphs (d) through (h), "license holder" has the meaning
under section 245A.02, subdivision 9, and additionally includes all staff, volunteers, and
contractors affiliated with the license holder.

(j) For the purposes of paragraph (e), the terms "assess" and "assessing" mean to remotely
determine what action the license holder needs to take to protect the well-being of the foster
care recipient.

(k) The commissioner shall evaluate license applications using the requirements in
paragraphs (d) to (f). The commissioner shall provide detailed application forms, including
a checklist of criteria needed for approval.

(l) To be eligible for a license under paragraph (a), the adult foster care deleted text begin or community
residential setting
deleted text end license holder must not have had a conditional license issued under section
245A.06 or any licensing sanction under section 245A.07 during the prior 24 months based
on failure to provide adequate supervision, health care services, or resident safety in the
adult foster care home deleted text begin or community residential settingdeleted text end .

(m) The commissioner shall review an application for an alternative overnight supervision
license within 60 days of receipt of the application. When the commissioner receives an
application that is incomplete because the applicant failed to submit required documents or
that is substantially deficient because the documents submitted do not meet licensing
requirements, the commissioner shall provide the applicant written notice that the application
is incomplete or substantially deficient. In the written notice to the applicant, the
commissioner shall identify documents that are missing or deficient and give the applicant
45 days to resubmit a second application that is substantially complete. An applicant's failure
to submit a substantially complete application after receiving notice from the commissioner
is a basis for license denial under section 245A.05. The commissioner shall complete
subsequent review within 30 days.

(n) Once the application is considered complete under paragraph (m), the commissioner
will approve or deny an application for an alternative overnight supervision license within
60 days.

(o) For the purposes of this subdivision, "supervision" means:

(1) oversight by a caregiver or direct support staff as specified in the individual resident's
place agreement or support plan and awareness of the resident's needs and activities; and

(2) the presence of a caregiver or direct support staff in a residence during normal sleeping
hours, unless a determination has been made and documented in the individual's support
plan that the individual does not require the presence of a caregiver or direct support staff
during normal sleeping hours.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective January 1, 2024.
new text end

Sec. 3.

new text begin [245D.261] COMMUNITY RESIDENTIAL SETTINGS; REMOTE
OVERNIGHT SUPERVISION.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin (a) For purposes of this section, the following terms have
the meanings given them, unless otherwise specified.
new text end

new text begin (b) "Enabling technology" means a device capable of live, two-way communication or
engagement between a resident and direct support staff at a remote location.
new text end

new text begin (c) "Monitoring technology" means the use of equipment to oversee, monitor, and
supervise someone who receives medical assistance waiver or alternative care services
under chapter 256B or 256S.
new text end

new text begin (d) "Resident" means an adult residing in a community residential setting.
new text end

new text begin Subd. 2. new text end

new text begin Documentation of permissible remote overnight supervision. new text end

new text begin A license
holder providing remote overnight supervision in a community residential setting in lieu of
on-site direct support staff must comply with the requirements of this chapter, including
the requirement under section 245D.02, subdivision 33b, paragraph (a), clause (3), that the
absence of direct support staff from the community residential setting while services are
being delivered must be documented in the resident's support plan or support plan addendum.
new text end

new text begin Subd. 3. new text end

new text begin Provider requirements for remote overnight supervision. new text end

new text begin (a) A license
holder providing remote overnight supervision in a community residential setting must:
new text end

new text begin (1) use enabling technology;
new text end

new text begin (2) clearly state in each person's support plan addendum that the community residential
setting is a program without the in-person presence of overnight direct support;
new text end

new text begin (3) include with each person's support plan addendum the license holder's protocols for
responding to situations that present a serious risk to the health, safety, or rights of residents
served by the program; and
new text end

new text begin (4) include in each person's support plan addendum the person's maximum permissible
response time as determined by the person's support team.
new text end

new text begin (b) Upon being notified via technology that an incident has occurred that may jeopardize
the health, safety, or rights of a resident, the license holder must conduct an evaluation of
the need for the physical presence of a staff member. If a physical presence is needed, a
staff person, volunteer, or contractor must be on site to respond to the situation within the
resident's maximum permissible response time.
new text end

new text begin Subd. 4. new text end

new text begin Required policies and procedures for remote overnight supervision. new text end

new text begin (a) A
license holder providing remote overnight supervision must have policies and procedures
that:
new text end

new text begin (1) protect the residents' health, safety, and rights;
new text end

new text begin (2) explain the discharge process if a person served by the program requires in-person
supervision or other services that cannot be provided by the license holder due to the limited
hours that direct support staff are on site;
new text end

new text begin (3) explain the backup system for technology in times of electrical outages or other
equipment malfunctions;
new text end

new text begin (4) explain how the license holder trains the direct support staff on the use of the
technology; and
new text end

new text begin (5) establish a plan for dispatching emergency response personnel to the site in the event
of an identified emergency.
new text end

new text begin (b) Nothing in this section requires the license holder to develop or maintain separate
or duplicative policies, procedures, documentation, consent forms, or individual plans that
may be required for other licensing standards if the requirements of this section are
incorporated into those documents.
new text end

new text begin Subd. 5. new text end

new text begin Consent to use of monitoring technology. new text end

new text begin If a license holder uses monitoring
technology in a community residential setting, the license holder must obtain a signed
informed consent form from each resident served by the program or the resident's legal
representative documenting the resident's or legal representative's agreement to use of the
specific monitoring technology used in the setting. The informed consent form documenting
this agreement must also explain:
new text end

new text begin (1) how the license holder uses monitoring technology to provide remote supervision;
new text end

new text begin (2) the risks and benefits of using monitoring technology;
new text end

new text begin (3) how the license holder protects each resident's privacy while monitoring technology
is being used in the setting; and
new text end

new text begin (4) how the license holder protects each resident's privacy when the monitoring
technology system electronically records personally identifying data.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective January 1, 2024.
new text end