1.1 	A bill for an act
1.2 	relating to human services; changing capacity requirements for certain residential 
1.3 	programs; requiring the commissioner to request federal waivers;amending 
1.4 	Minnesota Statutes 2008, sections 245A.11, subdivision 2a; 256B.092, by adding 
1.5 	a subdivision; 256B.49, subdivision 17; repealing Minnesota Statutes 2008, 
1.6 	section 256B.092, subdivision 5a.
1.7 	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

1.8 	Section 1. Minnesota Statutes 2008, section 245A.11, subdivision 2a, is amended to 
1.9 	read:
1.10 		Subd. 2a.Adult foster care license capacity. The commissioner shall issue adult 
1.11 	foster care licenses with a maximum licensed capacity of four beds, including nonstaff 
1.12 	roomers and boarders, except that the commissioner may issue a license with a capacity of 
1.13 	five beds, including roomers and boarders, according to paragraphs (a) to (e).
1.14 	(a) An adult foster care license holder may have a maximum license capacity of five 
1.15 	if all persons in care are age 55 or over and do not have a serious and persistent mental 
1.16 	illness or a developmental disability.
1.17 	(b) The commissioner may grant variances to paragraph (a) to allow a foster care 
1.18 	provider with a licensed capacity of five persons to admit an individual under the age of 55 
1.19 	if the variance complies with section 245A.04, subdivision 9, and approval of the variance 
1.20 	is recommended by the county in which the licensed foster care provider is located.  
1.21 	(c) The commissioner may grant variances to paragraph (a) to allow the use of a fifth 
1.22 	bed for emergency crisis services for a person with serious and persistent mental illness 
1.23 	or a developmental disability, regardless of age, if the variance complies with section 
1.24 	245A.04, subdivision 9, and approval of the variance is recommended by the county in 
1.25 	which the licensed foster care provider is located.  
2.1 	(d) Notwithstanding paragraph (a),If the 2009 legislature adopts a rate reduction 
2.2 	that impacts providers of adult foster care services, the commissioner may issue an adult 
2.3 	foster care license with a capacity of five adults if the fifth bed does not increase the 
2.4 	overall statewide capacity of licensed adult foster care beds in homes that are not the 
2.5 	primary residence of the license holder, over the licensed capacity in those homes on July 
2.6 	1, 2009, as identified in a plan submitted to the commissioner by the county,  when the 
2.7 	capacity is recommended by the county licensing agency of the county in which the 
2.8 	facility is located and if the recommendation verifies that:
2.9 	(1) the facility meets the physical environment requirements in the adult foster 
2.10 	care licensing rule;
2.11 	(2) the five-bed living arrangement is specified for each resident in the resident's:
2.12 	(i) individualized plan of care;
2.13 	(ii) individual service plan under section 256B.092, subdivision 1b, if required; or  
2.14 	(iii) individual resident placement agreement under Minnesota Rules, part 
2.15 	9555.5105, subpart 19, if required;
2.16 	(3) the license holder obtains written and signed informed consent from each 
2.17 	resident or resident's legal representative documenting the resident's informed choice to 
2.18 	living in the home and that the resident's refusal to consent would not have resulted in 
2.19 	service termination; and
2.20 	(4) the facility was licensed for adult foster care before March 1, 2003 2009.
2.21 	(e) The commissioner shall not issue a new adult foster care license under paragraph 
2.22 	(d) after June 30, 2005 2011. The commissioner shall allow a facility with an adult foster 
2.23 	care license issued under paragraph (d) before June 30, 2005 2011, to continue with a 
2.24 	capacity of five adults if the license holder continues to comply with the requirements in 
2.25 	paragraph (d).

2.26 	Sec. 2. Minnesota Statutes 2008, section 256B.092, is amended by adding a 
2.27 	subdivision to read:
2.28 		Subd. 5b.Revised per diem based on legislated rate reduction. Notwithstanding 
2.29 	section 252.28, subdivision 3, paragraph (d), if the 2009 legislature adopts a rate reduction 
2.30 	that impacts payment to providers of adult foster care services, the commissioner may 
2.31 	issue adult foster care licenses that permit a capacity of five adults. The application for a 
2.32 	five-bed license must meet the requirements of section 245A.11, subdivision 2a. Prior to 
2.33 	admission of the fifth recipient of adult foster care services, the county must negotiate a 
2.34 	revised per diem rate for room and board and waiver services that reflects the legislated 
2.35 	rate reduction and results in an overall average per diem reduction for all foster care 
3.1 	recipients in that home. The revised per diem must allow the provider to maintain, as 
3.2 	much as possible, the level of services or enhanced services provided in the residence, 
3.3 	while mitigating the losses of the legislated rate reduction.

3.4 	Sec. 3. Minnesota Statutes 2008, section 256B.49, subdivision 17, is amended to read:
3.5 		Subd. 17.Cost of services and supports. (a) The commissioner shall ensure 
3.6 	that the average per capita expenditures estimated in any fiscal year for home and 
3.7 	community-based waiver recipients does not exceed the average per capita expenditures 
3.8 	that would have been made to provide institutional services for recipients in the absence 
3.9 	of the waiver.
3.10 	(b) The commissioner shall implement on January 1, 2002, one or more aggregate, 
3.11 	need-based methods for allocating to local agencies the home and community-based 
3.12 	waivered service resources available to support recipients with disabilities in need of 
3.13 	the level of care provided in a nursing facility or a hospital. The commissioner shall 
3.14 	allocate resources to single counties and county partnerships in a manner that reflects 
3.15 	consideration of:
3.16 	(1) an incentive-based payment process for achieving outcomes;
3.17 	(2) the need for a state-level risk pool;
3.18 	(3) the need for retention of management responsibility at the state agency level; and
3.19 	(4) a phase-in strategy as appropriate.
3.20 	(c) Until the allocation methods described in paragraph (b) are implemented, the 
3.21 	annual allowable reimbursement level of home and community-based waiver services 
3.22 	shall be the greater of:
3.23 	(1) the statewide average payment amount which the recipient is assigned under the 
3.24 	waiver reimbursement system in place on June 30, 2001, modified by the percentage of 
3.25 	any provider rate increase appropriated for home and community-based services; or
3.26 	(2) an amount approved by the commissioner based on the recipient's extraordinary 
3.27 	needs that cannot be met within the current allowable reimbursement level. The 
3.28 	increased reimbursement level must be necessary to allow the recipient to be discharged 
3.29 	from an institution or to prevent imminent placement in an institution. The additional 
3.30 	reimbursement may be used to secure environmental modifications; assistive technology 
3.31 	and equipment; and increased costs for supervision, training, and support services 
3.32 	necessary to address the recipient's extraordinary needs. The commissioner may approve 
3.33 	an increased reimbursement level for up to one year of the recipient's relocation from an 
3.34 	institution or up to six months of a determination that a current waiver recipient is at 
3.35 	imminent risk of being placed in an institution.
4.1 	(d) Beginning July 1, 2001, medically necessary private duty nursing services will be 
4.2 	authorized under this section as complex and regular care according to sections 256B.0651
4.3 	and 256B.0653 to 256B.0656. The rate established by the commissioner for registered 
4.4 	nurse or licensed practical nurse services under any home and community-based waiver as 
4.5 	of January 1, 2001, shall not be reduced.
4.6 	(e) Notwithstanding section 252.28, subdivision 3, paragraph (d), if the 2009 
4.7 	legislature adopts a rate reduction that impacts payment to providers of adult foster care 
4.8 	services, the commissioner may issue adult foster care licenses that permit a capacity of 
4.9 	five adults. The application for a five-bed license must meet the requirements of section 
4.10 	245A.11, subdivision 2a. Prior to admission of the fifth recipient of adult foster care 
4.11 	services, the county must negotiate a revised per diem rate for room and board and waiver 
4.12 	services that reflects the legislated rate reduction and results in an overall average per 
4.13 	diem reduction for all foster care recipients in that home. The revised per diem must allow 
4.14 	the provider to maintain, as much as possible, the level of services or enhanced services 
4.15 	provided in the residence, while mitigating the losses of the legislated rate reduction.

4.16 	Sec. 4. WAIVER.
 4.17 	By December 1, 2009, the commissioner shall request all federal approvals and 
4.18 	waiver amendments to the disability home and community-based waivers to allow properly 
4.19 	licensed adult foster care homes to provide residential services for up to five individuals.

4.20 	Sec. 5.  REPEALER.
 4.21 	Minnesota Statutes 2008, section 256B.092, subdivision 5a, is repealed.

4.22 	Sec. 6. EFFECTIVE DATE.
 4.23 	Sections 1 to 5 are effective July 1, 2009.