HF 8

as introduced - 91st Legislature, 2020 5th Special Session (2020 - 2020) Posted on 10/12/2020 11:45am

A bill for an act
relating to human services; modifying personal care assistant and support worker
requirements; allowing compensation for personal care assistance services provided
by a parent or spouse; establishing a temporary personal care assistance rate
increase; appropriating money; amending Minnesota Statutes 2019 Supplement,
sections 256B.0659, subdivision 11, as amended; 256B.85, subdivision 16.

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

Section 1.

Minnesota Statutes 2019 Supplement, section 256B.0659, subdivision 11, as
amended by Laws 2020, chapter 115, article 4, section 128, is amended to read:

Subd. 11.

Personal care assistant; requirements.

(a) A personal care assistant must
meet the following requirements:

(1) be at least 18 years of age with the exception of persons who are 16 or 17 years of
age with these additional requirements:

(i) supervision by a qualified professional every 60 days; and

(ii) employment by only one personal care assistance provider agency responsible for
compliance with current labor laws;

(2) be employed by a personal care assistance provider agency;

(3) enroll with the department as a personal care assistant after clearing a background
study. Except as provided in subdivision 11a, before a personal care assistant provides
services, the personal care assistance provider agency must initiate a background study on
the personal care assistant under chapter 245C, and the personal care assistance provider
agency must have received a notice from the commissioner that the personal care assistant
is:

(i) not disqualified under section 245C.14; or

(ii) disqualified, but the personal care assistant has received a set aside of the
disqualification under section 245C.22;

(4) be able to effectively communicate with the recipient and personal care assistance
provider agency;

(5) be able to provide covered personal care assistance services according to the recipient's
personal care assistance care plan, respond appropriately to recipient needs, and report
changes in the recipient's condition to the supervising qualified professional, physician, or
advanced practice registered nurse;

(6) not be a consumer of personal care assistance services;

(7) maintain daily written records including, but not limited to, time sheets under
subdivision 12;

(8) effective January 1, 2010, complete standardized training as determined by the
commissioner before completing enrollment. The training must be available in languages
other than English and to those who need accommodations due to disabilities. Personal care
assistant training must include successful completion of the following training components:
basic first aid, vulnerable adult, child maltreatment, OSHA universal precautions, basic
roles and responsibilities of personal care assistants including information about assistance
with lifting and transfers for recipients, emergency preparedness, orientation to positive
behavioral practices, fraud issues, and completion of time sheets. Upon completion of the
training components, the personal care assistant must demonstrate the competency to provide
assistance to recipients;

(9) complete training and orientation on the needs of the recipient; and

(10) be limited to providing and being paid for up to deleted text begin 275 deleted text end new text begin 310 new text end hours per month of personal
care assistance services regardless of the number of recipients being served or the number
of personal care assistance provider agencies enrolled with. The number of hours worked
per day shall not be disallowed by the department unless in violation of the law.

(b) A legal guardian may be a personal care assistant if the guardian is not being paid
for the guardian services and meets the criteria for personal care assistants in paragraph (a).

(c) Persons who do not qualify as a personal care assistant include parents, stepparents,
and legal guardians of minors; spouses; paid legal guardians of adults; family foster care
providers, except as otherwise allowed in section 256B.0625, subdivision 19a; and staff of
a residential setting.

(d) Personal care assistance services qualify for the enhanced rate described in subdivision
17a if the personal care assistant providing the services:

(1) provides covered services to a recipient who qualifies for 12 or more hours per day
of personal care assistance services; and

(2) satisfies the current requirements of Medicare for training and competency or
competency evaluation of home health aides or nursing assistants, as provided in the Code
of Federal Regulations, title 42, section 483.151 or 484.36, or alternative state-approved
training or competency requirements.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 2.

Minnesota Statutes 2019 Supplement, section 256B.85, subdivision 16, is amended
to read:

Subd. 16.

Support workers requirements.

(a) Support workers shall:

(1) enroll with the department as a support worker after a background study under chapter
245C has been completed and the support worker has received a notice from the
commissioner that the support worker:

(i) is not disqualified under section 245C.14; or

(ii) is disqualified, but has received a set-aside of the disqualification under section
245C.22;

(2) have the ability to effectively communicate with the participant or the participant's
representative;

(3) have the skills and ability to provide the services and supports according to the
participant's CFSS service delivery plan and respond appropriately to the participant's needs;

(4) complete the basic standardized CFSS training as determined by the commissioner
before completing enrollment. The training must be available in languages other than English
and to those who need accommodations due to disabilities. CFSS support worker training
must include successful completion of the following training components: basic first aid,
vulnerable adult, child maltreatment, OSHA universal precautions, basic roles and
responsibilities of support workers including information about basic body mechanics,
emergency preparedness, orientation to positive behavioral practices, orientation to
responding to a mental health crisis, fraud issues, time cards and documentation, and an
overview of person-centered planning and self-direction. Upon completion of the training
components, the support worker must pass the certification test to provide assistance to
participants;

(5) complete employer-directed training and orientation on the participant's individual
needs;

(6) maintain the privacy and confidentiality of the participant; and

(7) not independently determine the medication dose or time for medications for the
participant.

(b) The commissioner may deny or terminate a support worker's provider enrollment
and provider number if the support worker:

(1) does not meet the requirements in paragraph (a);

(2) fails to provide the authorized services required by the employer;

(3) has been intoxicated by alcohol or drugs while providing authorized services to the
participant or while in the participant's home;

(4) has manufactured or distributed drugs while providing authorized services to the
participant or while in the participant's home; or

(5) has been excluded as a provider by the commissioner of human services, or by the
United States Department of Health and Human Services, Office of Inspector General, from
participation in Medicaid, Medicare, or any other federal health care program.

(c) A support worker may appeal in writing to the commissioner to contest the decision
to terminate the support worker's provider enrollment and provider number.

(d) A support worker must not provide or be paid for more than deleted text begin 275 deleted text end new text begin 310 new text end hours of CFSS
per month, regardless of the number of participants the support worker serves or the number
of agency-providers or participant employers by which the support worker is employed.
The department shall not disallow the number of hours per day a support worker works
unless it violates other law.

(e) CFSS qualify for an enhanced rate if the support worker providing the services:

(1) provides services, within the scope of CFSS described in subdivision 7, to a participant
who qualifies for 12 or more hours per day of CFSS; and

(2) satisfies the current requirements of Medicare for training and competency or
competency evaluation of home health aides or nursing assistants, as provided in the Code
of Federal Regulations, title 42, section 483.151 or 484.36, or alternative state-approved
training or competency requirements.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 3. new text begin TEMPORARY PERSONAL CARE ASSISTANCE COMPENSATION FOR
SERVICES PROVIDED BY A PARENT OR SPOUSE.
new text end

new text begin (a) Notwithstanding Minnesota Statutes, section 256B.0659, subdivisions 3, paragraph
(a), clause (1); 11, paragraph (c); and 19, paragraph (b), clause (3), during a peacetime
emergency declared by the governor under Minnesota Statutes, section 12.31, subdivision
2, for an outbreak of COVID-19, a parent, stepparent, or legal guardian of a minor who is
a personal care assistance recipient or a spouse of a personal care assistance recipient may
provide and be paid for providing personal care assistance services.
new text end

new text begin (b) This section expires January 31, 2021, or 60 days after the peacetime emergency
declared by the governor under Minnesota Statutes, section 12.31, subdivision 2, for an
outbreak of COVID-19, is terminated or rescinded by proper authority, whichever is earlier.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment or
upon federal approval, whichever is later. The commissioner of human services shall notify
the revisor of statutes when federal approval is obtained.
new text end

Sec. 4. new text begin DIRECT SUPPORT PROFESSIONALS TEMPORARY RATE INCREASE.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

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

new text begin (b) "Commissioner" means the commissioner of human services.
new text end

new text begin (c) "Covered program" has the meaning given in Minnesota Statutes, section 256B.0711,
subdivision 1, paragraph (b).
new text end

new text begin (d) "Direct support professional" means an individual employed to personally provide
personal care assistance services covered by medical assistance under Minnesota Statutes,
section 256B.0625, subdivisions 19a and 19c; or to personally provide medical assistance
services covered under Minnesota Statutes, section 256B.0913, 256B.092, or 256B.49, or
chapter 256S. Direct support professional does not include managerial or administrative
staff who do not personally provide the services described in this paragraph.
new text end

new text begin (e) "Direct support services" has the meaning given in Minnesota Statutes, section
256B.0711, subdivision 1, paragraph (c).
new text end

new text begin Subd. 2. new text end

new text begin Temporary rates for direct support services. new text end

new text begin (a) To respond to the infectious
disease known as COVID-19, the commissioner must temporarily increase rates and enhanced
rates by 13.75 percent for direct support services provided under a covered program or
under Minnesota Statutes, section 256B.0659, while this section is effective.
new text end

new text begin (b) Providers that receive a rate increase under this section must:
new text end

new text begin (1) use at least 80 percent of the additional revenue to increase wages, salaries, and
benefits for direct support professionals and any corresponding increase in the employer's
share of FICA taxes, Medicare taxes, state and federal unemployment taxes, and workers'
compensation premiums; and
new text end

new text begin (2) use any remainder of the additional revenue for activities and items necessary to
support compliance with Centers for Disease Control and Prevention guidance on sanitation
and personal protective equipment.
new text end

new text begin Subd. 3. new text end

new text begin Capitation rates and directed payments. new text end

new text begin (a) To implement the temporary
rate increase under this section, managed care plans and county-based purchasing plans
shall pay at least the fee-for-service rate inclusive of the 13.75 percent increase for the direct
support services.
new text end

new text begin (b) The commissioner shall adjust capitation rates paid to managed care plans and
county-based purchasing plans as needed to maintain managed care plans' required medical
loss ratios.
new text end

new text begin (c) If federal approval is not received due to the provisions of this subdivision, the
commissioner must adjust the capitation rates paid to managed care plans and county-based
purchasing plans for that contract year to reflect the removal of this provision. Contracts
between managed care plans and providers and between county-based purchasing plans and
providers must allow recovery of payments from providers if federal approval for the
provisions of this subdivision is not received and the commissioner reduces capitation
payments as a result. Payment recoveries must not exceed the amount equal to any decrease
in rates that results from this paragraph.
new text end

new text begin Subd. 4. new text end

new text begin Consumer-directed community supports budgets. new text end

new text begin The commissioner shall
temporarily adjust consumer-directed community supports budgets to account for the rate
increase required in subdivision 2.
new text end

new text begin Subd. 5. new text end

new text begin Consumer support grants; increased maximum allowable grant. new text end

new text begin The
commissioner shall temporarily increase the maximum allowable monthly grant level for
each recipient of consumer support grants to account for the rate increase required in
subdivision 2.
new text end

new text begin Subd. 6. new text end

new text begin Distribution plans. new text end

new text begin (a) A provider agency or individual provider that receives
a rate increase under subdivision 2 shall prepare and, upon request, submit to the
commissioner a distribution plan that specifies the anticipated amount and proposed uses
of the additional revenue the provider will receive under subdivision 2.
new text end

new text begin (b) Within 60 days of final enactment of this section, the provider must post the
distribution plan and leave it posted for a period of at least six weeks in an area of the
provider's operation to which all direct support professionals have access. The provider
must post with the distribution plan instructions on how to contact the commissioner if
direct support professionals do not believe they have received the wage increase or benefits
specified in the distribution plan. The instructions must include a mailing address, e-mail
address, and telephone number that the direct support professional may use to contact the
commissioner or the commissioner's representative.
new text end

new text begin Subd. 7. new text end

new text begin Expiration. new text end

new text begin This section expires January 31, 2021; 60 days after the peacetime
emergency declared by the governor under Minnesota Statutes, section 12.31, subdivision
2, for an outbreak of COVID-19, is terminated or rescinded by proper authority; or when
federal approval ends, whichever is earlier.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment or
upon federal approval, whichever is later. The commissioner shall notify the revisor of
statutes when federal approval is obtained.
new text end

Sec. 5. new text begin APPROPRIATION; HOME AND COMMUNITY-BASED DIRECT
SUPPORT PROFESSIONALS.
new text end

new text begin $13,390,000 in fiscal year 2021 is appropriated from the general fund to the commissioner
of human services to implement the direct support professional provisions in this act. The
general fund base for operations is increased by $1,000 in fiscal year 2022 and by $1,000
in fiscal year 2023.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end