HF 1256

as introduced - 91st Legislature (2019 - 2020) Posted on 03/13/2019 04:51pm

A bill for an act
relating to human services; modifying adult foster care and community residential
setting license capacity; modifying various provisions governing home and
community-based services; amending Minnesota Statutes 2018, sections 245A.11,
subdivision 2a; 245D.03, subdivision 1; 245D.071, subdivision 5; 245D.09,
subdivision 5a; 245D.091, subdivisions 2, 3, 4; 256B.4914, subdivision 3.

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

Section 1.

Minnesota Statutes 2018, section 245A.11, subdivision 2a, is amended to read:

Subd. 2a.

Adult foster care and community residential setting license capacity.

(a)
The commissioner shall issue adult foster care and community residential setting licenses
with a maximum licensed capacity of four beds, including nonstaff roomers and boarders,
except that the commissioner may issue a license with a capacity of five beds, including
roomers and boarders, according to paragraphs (b) to (g).

(b) The license holder may have a maximum license capacity of five if all persons in
care are age 55 or over and do not have a serious and persistent mental illness or a
developmental disability.

(c) The commissioner may grant variances to paragraph (b) to allow a facility with a
licensed capacity of up to five persons to admit an individual under the age of 55 if the
variance complies with section 245A.04, subdivision 9, and approval of the variance is
recommended by the county in which the licensed facility is located.

(d) The commissioner may grant variances to paragraph (a) to allow the use of an
additional bed, up to five, for emergency crisis services for a person with serious and
persistent mental illness or a developmental disability, regardless of age, if the variance
complies with section 245A.04, subdivision 9, and approval of the variance is recommended
by the county in which the licensed facility is located.

(e) The commissioner may grant a variance to paragraph (b) to allow for the use of an
additional bed, up to five, for respite services, as defined in section 245A.02, for persons
with disabilities, regardless of age, if the variance complies with sections 245A.03,
subdivision 7, and 245A.04, subdivision 9, and approval of the variance is recommended
by the county in which the licensed facility is located. Respite care may be provided under
the following conditions:

(1) staffing ratios cannot be reduced below the approved level for the individuals being
served in the home on a permanent basis;

(2) no more than two different individuals can be accepted for respite services in any
calendar month and the total respite days may not exceed 120 days per program in any
calendar year;

(3) the person receiving respite services must have his or her own bedroom, which could
be used for alternative purposes when not used as a respite bedroom, and cannot be the
room of another person who lives in the facility; and

(4) individuals living in the facility must be notified when the variance is approved. The
provider must give 60 days' notice in writing to the residents and their legal representatives
prior to accepting the first respite placement. Notice must be given to residents at least two
days prior to service initiation, or as soon as the license holder is able if they receive notice
of the need for respite less than two days prior to initiation, each time a respite client will
be served, unless the requirement for this notice is waived by the resident or legal guardian.

(f) The commissioner may issue an adult foster care or community residential setting
license with a capacity of five adults if the fifth bed does not increase the overall statewide
capacity of licensed adult foster care or community residential setting beds in homes that
are not the primary residence of the license holder, as identified in a plan submitted to the
commissioner by the county, when the capacity is recommended by the county licensing
agency of the county in which the facility is located and if the recommendation verifies
that:

(1) the facility meets the physical environment requirements in the adult foster care
licensing rule;

(2) the five-bed living arrangement 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;

(3) the license holder obtains written and signed informed consent from each resident
or resident's legal representative documenting the resident's informed choice to remain
living in the home and that the resident's refusal to consent would not have resulted in
service termination; and

(4) the facility was licensed for adult foster care before deleted text begin March 1, 2011 deleted text end new text begin June 30, 2016 new text end .

(g) The commissioner shall not issue a new adult foster care license under paragraph (f)
after June 30, deleted text begin 2019 deleted text end new text begin 2022 new text end . The commissioner shall allow a facility with an adult foster care
license issued under paragraph (f) before June 30, deleted text begin 2019 deleted text end new text begin 2022 new text end , to continue with a capacity
of five adults if the license holder continues to comply with the requirements in paragraph
(f).

Sec. 2.

Minnesota Statutes 2018, section 245D.03, subdivision 1, is amended to read:

Subdivision 1.

Applicability.

(a) The commissioner shall regulate the provision of home
and community-based services to persons with disabilities and persons age 65 and older
pursuant to this chapter. The licensing standards in this chapter govern the provision of
basic support services and intensive support services.

(b) Basic support services provide the level of assistance, supervision, and care that is
necessary to ensure the health and welfare of the person and do not include services that
are specifically directed toward the training, treatment, habilitation, or rehabilitation of the
person. Basic support services include:

(1) in-home and out-of-home respite care services as defined in section 245A.02,
subdivision 15, and under the brain injury, community alternative care, community access
for disability inclusion, developmental deleted text begin disability deleted text end new text begin disabilities new text end , and elderly waiver plans,
excluding out-of-home respite care provided to children in a family child foster care home
licensed under Minnesota Rules, parts 2960.3000 to 2960.3100, when the child foster care
license holder complies with the requirements under section 245D.06, subdivisions 5, 6, 7,
and 8, or successor provisions; and section 245D.061 or successor provisions, which must
be stipulated in the statement of intended use required under Minnesota Rules, part
2960.3000, subpart 4;

(2) adult companion services as defined under the brain injury, community access for
disability inclusion, new text begin community alternative care, new text end and elderly waiver plans, excluding adult
companion services provided under the Corporation for National and Community Services
Senior Companion Program established under the Domestic Volunteer Service Act of 1973,
Public Law 98-288;

(3) personal support as defined under the developmental deleted text begin disability deleted text end new text begin disabilities new text end waiver
plan;

(4) 24-hour emergency assistance, personal emergency response as defined under the
community access for disability inclusion and developmental deleted text begin disability deleted text end new text begin disabilities new text end waiver
plans;

(5) night supervision services as defined under the brain injury new text begin , community access for
disability inclusion, community alternative care, and developmental disabilities new text end waiver deleted text begin plan deleted text end new text begin
plans new text end ;

(6) homemaker services as defined under the community access for disability inclusion,
brain injury, community alternative care, developmental deleted text begin disability deleted text end new text begin disabilities new text end , and elderly
waiver plans, excluding providers licensed by the Department of Health under chapter 144A
and those providers providing cleaning services only; and

(7) individual community living support under section 256B.0915, subdivision 3j.

(c) Intensive support services provide assistance, supervision, and care that is necessary
to ensure the health and welfare of the person and services specifically directed toward the
training, habilitation, or rehabilitation of the person. Intensive support services include:

(1) intervention services, including:

(i) deleted text begin behavioral deleted text end new text begin positive new text end support services as defined under the brain injury and community
access for disability inclusion new text begin , community alternative care, and developmental disabilities new text end
waiver plans;

(ii) in-home or out-of-home crisis respite services as defined under the new text begin brain injury,
community access for disability inclusion, community alternative care, and new text end developmental
deleted text begin disability deleted text end new text begin disabilities new text end waiver deleted text begin plan deleted text end new text begin plans new text end ; and

(iii) specialist services as defined under the current new text begin brain injury, community access for
disability inclusion, community alternative care, and new text end developmental deleted text begin disability deleted text end new text begin disabilities new text end
waiver deleted text begin plan deleted text end new text begin plans new text end ;

(2) in-home support services, including:

(i) in-home family support and supported living services as defined under the
developmental deleted text begin disability deleted text end new text begin disabilities new text end waiver plan;

(ii) independent living services training as defined under the brain injury and community
access for disability inclusion waiver plans;

(iii) semi-independent living services; and

(iv) individualized home supports services as defined under the brain injury, community
alternative care, and community access for disability inclusion waiver plans;

(3) residential supports and services, including:

(i) supported living services as defined under the developmental deleted text begin disability deleted text end new text begin disabilities new text end
waiver plan provided in a family or corporate child foster care residence, a family adult
foster care residence, a community residential setting, or a supervised living facility;

(ii) foster care services as defined in the brain injury, community alternative care, and
community access for disability inclusion waiver plans provided in a family or corporate
child foster care residence, a family adult foster care residence, or a community residential
setting; and

(iii) residential services provided to more than four persons with developmental
disabilities in a supervised living facility, including ICFs/DD;

(4) day services, including:

(i) structured day services as defined under the brain injury waiver plan;

(ii) day training and habilitation services under sections 252.41 to 252.46, and as defined
under the developmental deleted text begin disability deleted text end new text begin disabilities new text end waiver plan; and

(iii) prevocational services as defined under the brain injury and community access for
disability inclusion waiver plans; and

(5) employment exploration services as defined under the brain injury, community
alternative care, community access for disability inclusion, and developmental deleted text begin disability deleted text end new text begin
disabilities new text end waiver plans;

(6) employment development services as defined under the brain injury, community
alternative care, community access for disability inclusion, and developmental deleted text begin disability deleted text end new text begin
disabilities new text end waiver plans; and

(7) employment support services as defined under the brain injury, community alternative
care, community access for disability inclusion, and developmental deleted text begin disability deleted text end new text begin disabilities new text end
waiver plans.

Sec. 3.

Minnesota Statutes 2018, section 245D.071, subdivision 5, is amended to read:

Subd. 5.

Service plan review and evaluation.

(a) The license holder must give the
person or the person's legal representative and case manager an opportunity to participate
in the ongoing review and development of the service plan and the methods used to support
the person and accomplish outcomes identified in subdivisions 3 and 4. new text begin At least once per
year, or within 30 days of a written request by the person, the person's legal representative,
or the case manager, new text end the license holder, in coordination with the person's support team or
expanded support team, must meet with the person, the person's legal representative, and
the case manager, and participate in service plan review meetings following stated timelines
established in the person's coordinated service and support plan or coordinated service and
support plan addendum deleted text begin or within 30 days of a written request by the person, the person's
legal representative, or the case manager, at a minimum of once per year deleted text end . The purpose of
the service plan review is to determine whether changes are needed to the service plan based
on the assessment information, the license holder's evaluation of progress towards
accomplishing outcomes, or other information provided by the support team or expanded
support team.

new text begin (b) At least once per year, the license holder, in coordination with the person's support
team or expanded support team, must meet with the person, the person's legal representative,
and the case manager to discuss how technology might be used to meet the person's desired
outcomes. The coordinated service and support plan or support plan addendum must include
a summary of this discussion. The summary must include a statement regarding any decision
made related to the use of technology and a description of any further research that must
be completed before a decision regarding the use of technology can be made. Nothing in
this paragraph requires the coordinated service and support plan to include the use of
technology for the provision of services.
new text end

deleted text begin (b) deleted text end new text begin (c) new text end The license holder must summarize the person's status and progress toward
achieving the identified outcomes and make recommendations and identify the rationale
for changing, continuing, or discontinuing implementation of supports and methods identified
in subdivision 4 in a report available at the time of the progress review meeting. The report
must be sent at least five working days prior to the progress review meeting if requested by
the team in the coordinated service and support plan or coordinated service and support
plan addendum.

deleted text begin (c) deleted text end new text begin (d) new text end The license holder must send the coordinated service and support plan addendum
to the person, the person's legal representative, and the case manager by mail within ten
working days of the progress review meeting. Within ten working days of the mailing of
the coordinated service and support plan addendum, the license holder must obtain dated
signatures from the person or the person's legal representative and the case manager to
document approval of any changes to the coordinated service and support plan addendum.

deleted text begin (d) deleted text end new text begin (e) new text end If, within ten working days of submitting changes to the coordinated service and
support plan and coordinated service and support plan addendum, the person or the person's
legal representative or case manager has not signed and returned to the license holder the
coordinated service and support plan or coordinated service and support plan addendum or
has not proposed written modifications to the license holder's submission, the submission
is deemed approved and the coordinated service and support plan addendum becomes
effective and remains in effect until the legal representative or case manager submits a
written request to revise the coordinated service and support plan addendum.

Sec. 4.

Minnesota Statutes 2018, section 245D.09, subdivision 5a, is amended to read:

Subd. 5a.

Alternative sources of training.

The commissioner may approve online
training and competency-based assessments in place of a specific number of hours of training
in the topics covered in deleted text begin subdivision deleted text end new text begin subdivisions new text end 4 new text begin and 5 new text end . The commissioner must provide
a list of preapproved trainings that do not need approval for each individual license holder.

Orientation or training received by the staff person from sources other than the license
holder in the same subjects as identified in deleted text begin subdivision deleted text end new text begin subdivisions new text end 4 new text begin and 5 new text end may count
toward the orientation and annual training requirements if received in the 12-month period
before the staff person's date of hire. The license holder must maintain documentation of
the training received from other sources and of each staff person's competency in the required
area according to the requirements in subdivision 3.

Sec. 5.

Minnesota Statutes 2018, section 245D.091, subdivision 2, is amended to read:

Subd. 2.

deleted text begin Behavior deleted text end new text begin Positive support new text end professional qualifications.

A deleted text begin behavior deleted text end new text begin positive
support new text end professional providing deleted text begin behavioral deleted text end new text begin positive new text end support services as identified in section
245D.03, subdivision 1, paragraph (c), clause (1), item (i), must have competencies in the
following areas as required under the brain injury deleted text begin and deleted text end new text begin , new text end community access for disability
inclusion new text begin , community alternative care, and developmental disabilities new text end waiver plans or
successor plans:

(1) ethical considerations;

(2) functional assessment;

(3) functional analysis;

(4) measurement of behavior and interpretation of data;

(5) selecting intervention outcomes and strategies;

(6) behavior reduction and elimination strategies that promote least restrictive approved
alternatives;

(7) data collection;

(8) staff and caregiver training;

(9) support plan monitoring;

(10) co-occurring mental disorders or neurocognitive disorder;

(11) demonstrated expertise with populations being served; and

(12) must be a:

(i) psychologist licensed under sections 148.88 to 148.98, who has stated to the Board
of Psychology competencies in the above identified areas;

(ii) clinical social worker licensed as an independent clinical social worker under chapter
148D, or a person with a master's degree in social work from an accredited college or
university, with at least 4,000 hours of post-master's supervised experience in the delivery
of clinical services in the areas identified in clauses (1) to (11);

(iii) physician licensed under chapter 147 and certified by the American Board of
Psychiatry and Neurology or eligible for board certification in psychiatry with competencies
in the areas identified in clauses (1) to (11);

(iv) licensed professional clinical counselor licensed under sections 148B.29 to 148B.39
with at least 4,000 hours of post-master's supervised experience in the delivery of clinical
services who has demonstrated competencies in the areas identified in clauses (1) to (11);

(v) person with a master's degree from an accredited college or university in one of the
behavioral sciences or related fields, with at least 4,000 hours of post-master's supervised
experience in the delivery of clinical services with demonstrated competencies in the areas
identified in clauses (1) to (11); deleted text begin or
deleted text end

(vi) new text begin person with a master's degree or PhD in one of the behavioral sciences or related
fields with demonstrated expertise in positive support services; or
new text end

new text begin (vii) new text end registered nurse who is licensed under sections 148.171 to 148.285, and who is
certified as a clinical specialist or as a nurse practitioner in adult or family psychiatric and
mental health nursing by a national nurse certification organization, or who has a master's
degree in nursing or one of the behavioral sciences or related fields from an accredited
college or university or its equivalent, with at least 4,000 hours of post-master's supervised
experience in the delivery of clinical services.

Sec. 6.

Minnesota Statutes 2018, section 245D.091, subdivision 3, is amended to read:

Subd. 3.

deleted text begin Behavior deleted text end new text begin Positive support new text end analyst qualifications.

(a) A deleted text begin behavior deleted text end new text begin positive
support new text end analyst providing deleted text begin behavioral deleted text end new text begin positive new text end support services as identified in section
245D.03, subdivision 1, paragraph (c), clause (1), item (i), must have competencies in the
following areas as required under the brain injury deleted text begin and deleted text end new text begin , new text end community access for disability
inclusion new text begin , community alternative care, and developmental disabilities new text end waiver plans or
successor plans:

(1) have obtained a baccalaureate degree, master's degree, or PhD in a social services
discipline; deleted text begin or
deleted text end

(2) meet the qualifications of a mental health practitioner as defined in section 245.462,
subdivision 17 new text begin ; or
new text end

new text begin (3) be a board-certified behavior analyst or board-certified assistant behavior analyst by
the Behavior Analyst Certification Board, Incorporated new text end .

(b) In addition, a deleted text begin behavior deleted text end new text begin positive support new text end analyst must:

(1) have four years of supervised experience deleted text begin working with individuals who exhibit
challenging behaviors as well as co-occurring mental disorders or neurocognitive disorder deleted text end new text begin
conducting functional behavior assessments and designing, implementing, and evaluating
effectiveness of positive practices behavior support strategies for people who exhibit
challenging behaviors as well as co-occurring mental disorders and neurocognitive disorder new text end ;

(2) have received deleted text begin ten hours of instruction in functional assessment and functional analysis; deleted text end new text begin
training prior to hire or within 90 calendar days of hire that includes:
new text end

new text begin (i) ten hours of instruction in functional assessment and functional analysis;
new text end

new text begin (ii) 20 hours of instruction in the understanding of the function of behavior;
new text end

new text begin (iii) ten hours of instruction on design of positive practices behavior support strategies;
new text end

new text begin (iv) 20 hours of instruction preparing written intervention strategies, designing data
collection protocols, training other staff to implement positive practice strategies,
summarizing and reporting program evaluation data, analyzing program evaluation data to
identify design flaws in behavioral interventions or failures in implementation fidelity, and
recommending enhancements based on evaluation data; and
new text end

new text begin (v) eight hours of instruction on principles of person-centered thinking;
new text end

deleted text begin (3) have received 20 hours of instruction in the understanding of the function of behavior;
deleted text end

deleted text begin (4) have received ten hours of instruction on design of positive practices behavior support
strategies;
deleted text end

deleted text begin (5) have received 20 hours of instruction on the use of behavior reduction approved
strategies used only in combination with behavior positive practices strategies;
deleted text end

deleted text begin (6) deleted text end new text begin (3) new text end be determined by a deleted text begin behavior deleted text end new text begin positive support new text end professional to have the training
and prerequisite skills required to provide positive practice strategies as well as behavior
reduction approved and permitted intervention to the person who receives deleted text begin behavioral deleted text end new text begin positive new text end
support; and

deleted text begin (7) deleted text end new text begin (4) new text end be under the direct supervision of a deleted text begin behavior deleted text end new text begin positive support new text end professional.

new text begin (c) Meeting the qualifications for a positive support professional under subdivision 2
shall substitute for meeting the qualifications listed in paragraph (b).
new text end

Sec. 7.

Minnesota Statutes 2018, section 245D.091, subdivision 4, is amended to read:

Subd. 4.

deleted text begin Behavior deleted text end new text begin Positive support new text end specialist qualifications.

(a) A deleted text begin behavior deleted text end new text begin positive
support new text end specialist providing deleted text begin behavioral deleted text end new text begin positive new text end support services as identified in section
245D.03, subdivision 1, paragraph (c), clause (1), item (i), must have competencies in the
following areas as required under the brain injury deleted text begin and deleted text end new text begin , new text end community access for disability
inclusion new text begin , community alternative care, and developmental disabilities new text end waiver plans or
successor plans:

(1) have an associate's degree in a social services discipline; or

(2) have two years of supervised experience working with individuals who exhibit
challenging behaviors as well as co-occurring mental disorders or neurocognitive disorder.

(b) In addition, a behavior specialist must:

(1) have received new text begin training prior to hire or within 90 calendar days of hire that includes:
new text end

new text begin (i) new text end a minimum of four hours of training in functional assessment;

deleted text begin (2) have received deleted text end new text begin (ii) new text end 20 hours of instruction in the understanding of the function of
behavior;

deleted text begin (3) have received deleted text end new text begin (iii) new text end ten hours of instruction on design of positive practices behavioral
support strategies; new text begin and
new text end

new text begin (iv) eight hours of instruction on principles of person-centered thinking;
new text end

deleted text begin (4) deleted text end new text begin (2) new text end be determined by a deleted text begin behavior deleted text end new text begin positive support new text end professional to have the training
and prerequisite skills required to provide positive practices strategies as well as behavior
reduction approved intervention to the person who receives deleted text begin behavioral deleted text end new text begin positive new text end support;
and

deleted text begin (5) deleted text end new text begin (3) new text end be under the direct supervision of a deleted text begin behavior deleted text end new text begin positive support new text end professional.

new text begin (c) Meeting the qualifications for a positive support professional under subdivision 2
shall substitute for meeting the qualifications listed in paragraphs (a) and (b).
new text end

Sec. 8.

Minnesota Statutes 2018, section 256B.4914, subdivision 3, is amended to read:

Subd. 3.

Applicable services.

Applicable services are those authorized under the state's
home and community-based services waivers under sections 256B.092 and 256B.49,
including the following, as defined in the federally approved home and community-based
services plan:

(1) 24-hour customized living;

(2) adult day care;

(3) adult day care bath;

deleted text begin (4) behavioral programming;
deleted text end

deleted text begin (5) deleted text end new text begin (4) new text end companion services;

deleted text begin (6) deleted text end new text begin (5) new text end customized living;

deleted text begin (7) deleted text end new text begin (6) new text end day training and habilitation;

new text begin (7) employment development services;
new text end

new text begin (8) employment exploration services;
new text end

new text begin (9) employment support services;
new text end

deleted text begin (8) deleted text end new text begin (10) new text end housing access coordination;

deleted text begin (9) deleted text end new text begin (11) new text end independent living skills;

new text begin (12) independent living skills specialist services;
new text end

new text begin (13) individualized home supports;
new text end

deleted text begin (10) deleted text end new text begin (14) new text end in-home family support;

deleted text begin (11) deleted text end new text begin (15) new text end night supervision;

deleted text begin (12) deleted text end new text begin (16) new text end personal support;

new text begin (17) positive support service;
new text end

deleted text begin (13) deleted text end new text begin (18) new text end prevocational services;

deleted text begin (14) deleted text end new text begin (19) new text end residential care services;

deleted text begin (15) deleted text end new text begin (20) new text end residential support services;

deleted text begin (16) deleted text end new text begin (21) new text end respite services;

deleted text begin (17) deleted text end new text begin (22) new text end structured day services;

deleted text begin (18) deleted text end new text begin (23) new text end supported employment services;

deleted text begin (19) deleted text end new text begin (24) new text end supported living services;

deleted text begin (20) deleted text end new text begin (25) new text end transportation services; new text begin and
new text end

deleted text begin (21) individualized home supports;
deleted text end

deleted text begin (22) independent living skills specialist services;
deleted text end

deleted text begin (23) employment exploration services;
deleted text end

deleted text begin (24) employment development services;
deleted text end

deleted text begin (25) employment support services; and
deleted text end

(26) other services as approved by the federal government in the state home and
community-based services plan.

Sec. 9. new text begin REVISOR'S INSTRUCTION.
new text end

new text begin The revisor of statutes shall change the term "developmental disability waiver" or similar
terms to "developmental disabilities waiver" or similar terms wherever they appear in
Minnesota Statutes. The revisor shall also make technical and other necessary changes to
sentence structure to preserve the meaning of the text.
new text end