HF 2215

as introduced - 93rd Legislature (2023 - 2024) Posted on 03/02/2023 07:21pm

A bill for an act
relating to human services; modifying an exception to the community residential
setting licensing moratorium; amending Minnesota Statutes 2022, sections 245A.03,
subdivision 7; 256S.2101, by adding a subdivision.

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

Section 1.

Minnesota Statutes 2022, section 245A.03, subdivision 7, is amended to read:

Subd. 7.

Licensing moratorium.

(a) The commissioner shall not issue an initial license
for child foster care licensed under Minnesota Rules, parts 2960.3000 to 2960.3340, or adult
foster care licensed under Minnesota Rules, parts 9555.5105 to 9555.6265, under this chapter
for a physical location that will not be the primary residence of the license holder for the
entire period of licensure. If a family child foster care home or family adult foster care home
license is issued during this moratorium, and the license holder changes the license holder's
primary residence away from the physical location of the foster care license, the
commissioner shall revoke the license according to section 245A.07. The commissioner
shall not issue an initial license for a community residential setting licensed under chapter
245D. When approving an exception under this paragraph, the commissioner shall consider
the resource need determination process in paragraph (h), the availability of foster care
licensed beds in the geographic area in which the licensee seeks to operate, the results of a
person's choices during their annual assessment and service plan review, and the
recommendation of the local county board. The determination by the commissioner is final
and not subject to appeal. Exceptions to the moratorium include:

(1) foster care settings where at least 80 percent of the residents are 55 years of age or
older;

(2) foster care licenses replacing foster care licenses in existence on May 15, 2009, or
community residential setting licenses replacing adult foster care licenses in existence on
December 31, 2013, and determined to be needed by the commissioner under paragraph
(b);

(3) new foster care licenses or community residential setting licenses determined to be
needed by the commissioner under paragraph (b) for the closure of a nursing facility, ICF/DD,
or regional treatment center; restructuring of state-operated services that limits the capacity
of state-operated facilities; or allowing movement to the community for people who no
longer require the level of care provided in state-operated facilities as provided under section
256B.092, subdivision 13, or 256B.49, subdivision 24;

(4) new foster care licenses or community residential setting licenses determined to be
needed by the commissioner under paragraph (b) for persons requiring hospital-level care;
deleted text begin or
deleted text end

(5) new foster care licenses or community residential setting licenses for people receiving
customized living or 24-hour customized living services under the brain injury or community
access for disability inclusion waiver plans under section 256B.49 and residing in the
customized living setting before July 1, 2022, for which a license is required. A customized
living service provider subject to this exception may rebut the presumption that a license
is required by seeking a reconsideration of the commissioner's determination. The
commissioner's disposition of a request for reconsideration is final and not subject to appeal
under chapter 14. The exception is available until June 30, 2023. This exception is available
when:

(i) the person's customized living services are provided in a customized living service
setting serving four or fewer people under the brain injury or community access for disability
inclusion waiver plans under section 256B.49 in a single-family home operational on or
before June 30, 2021. Operational is defined in section 256B.49, subdivision 28;

(ii) the person's case manager provided the person with information about the choice of
service, service provider, and location of service, including in the person's home, to help
the person make an informed choice; and

(iii) the person's services provided in the licensed foster care or community residential
setting are less than or equal to the cost of the person's services delivered in the customized
living setting as determined by the lead agency new text begin ; or
new text end

new text begin (6) new foster care licenses or community residential setting licenses for a customized
living setting that is a single-family home in which customized living or 24-hour customized
living services were authorized and delivered on June 30, 2021, under the brain injury or
community access for disability inclusion waiver plans under section 256B.49 or the elderly
waiver under chapter 256S and for which a license is required. A customized living service
provider subject to this exception may rebut the presumption that a license is required by
seeking a reconsideration of the commissioner's determination. The commissioner's
disposition of a request for reconsideration is final and not subject to appeal under chapter
14. The exception is available for any eligible setting licensed as an assisted living facility
under chapter 144G on or after August 1, 2021, if the assisted living licensee applies for a
license under chapter 245D before June 30, 2023. The initial licensed capacity of the setting
under this exception must be four. This exception is available when:
new text end

new text begin (i) the case manager of each resident of the customized living setting provided the person
with information about the choice of service, service provider, and location of service,
including in the person's home, to help the person make an informed choice about remaining
in the newly licensed setting; and
new text end

new text begin (ii) the estimated average cost of services provided in the licensed foster care or
community residential setting is less than or equal to the estimated average cost of services
delivered in the customized living setting as determined by the lead agency new text end .

(b) The commissioner shall determine the need for newly licensed foster care homes or
community residential settings as defined under this subdivision. As part of the determination,
the commissioner shall consider the availability of foster care capacity in the area in which
the licensee seeks to operate, and the recommendation of the local county board. The
determination by the commissioner must be final. A determination of need is not required
for a change in ownership at the same address.

(c) When an adult resident served by the program moves out of a foster home that is not
the primary residence of the license holder according to section 256B.49, subdivision 15,
paragraph (f), or the adult community residential setting, the county shall immediately
inform the Department of Human Services Licensing Division. The department may decrease
the statewide licensed capacity for adult foster care settings.

(d) Residential settings that would otherwise be subject to the decreased license capacity
established in paragraph (c) shall be exempt if the license holder's beds are occupied by
residents whose primary diagnosis is mental illness and the license holder is certified under
the requirements in subdivision 6a or section 245D.33.

(e) A resource need determination process, managed at the state level, using the available
data required by section 144A.351, and other data and information shall be used to determine
where the reduced capacity determined under section 256B.493 will be implemented. The
commissioner shall consult with the stakeholders described in section 144A.351, and employ
a variety of methods to improve the state's capacity to meet the informed decisions of those
people who want to move out of corporate foster care or community residential settings,
long-term service needs within budgetary limits, including seeking proposals from service
providers or lead agencies to change service type, capacity, or location to improve services,
increase the independence of residents, and better meet needs identified by the long-term
services and supports reports and statewide data and information.

(f) At the time of application and reapplication for licensure, the applicant and the license
holder that are subject to the moratorium or an exclusion established in paragraph (a) are
required to inform the commissioner whether the physical location where the foster care
will be provided is or will be the primary residence of the license holder for the entire period
of licensure. If the primary residence of the applicant or license holder changes, the applicant
or license holder must notify the commissioner immediately. The commissioner shall print
on the foster care license certificate whether or not the physical location is the primary
residence of the license holder.

(g) License holders of foster care homes identified under paragraph (f) that are not the
primary residence of the license holder and that also provide services in the foster care home
that are covered by a federally approved home and community-based services waiver, as
authorized under chapter 256S or section 256B.092 or 256B.49, must inform the human
services licensing division that the license holder provides or intends to provide these
waiver-funded services.

(h) The commissioner may adjust capacity to address needs identified in section
144A.351. Under this authority, the commissioner may approve new licensed settings or
delicense existing settings. Delicensing of settings will be accomplished through a process
identified in section 256B.493.

(i) The commissioner must notify a license holder when its corporate foster care or
community residential setting licensed beds are reduced under this section. The notice of
reduction of licensed beds must be in writing and delivered to the license holder by certified
mail or personal service. The notice must state why the licensed beds are reduced and must
inform the license holder of its right to request reconsideration by the commissioner. The
license holder's request for reconsideration must be in writing. If mailed, the request for
reconsideration must be postmarked and sent to the commissioner within 20 calendar days
after the license holder's receipt of the notice of reduction of licensed beds. If a request for
reconsideration is made by personal service, it must be received by the commissioner within
20 calendar days after the license holder's receipt of the notice of reduction of licensed beds.

(j) The commissioner shall not issue an initial license for children's residential treatment
services licensed under Minnesota Rules, parts 2960.0580 to 2960.0700, under this chapter
for a program that Centers for Medicare and Medicaid Services would consider an institution
for mental diseases. Facilities that serve only private pay clients are exempt from the
moratorium described in this paragraph. The commissioner has the authority to manage
existing statewide capacity for children's residential treatment services subject to the
moratorium under this paragraph and may issue an initial license for such facilities if the
initial license would not increase the statewide capacity for children's residential treatment
services subject to the moratorium under this paragraph.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective retroactively from July 1, 2021.
new text end

Sec. 2.

Minnesota Statutes 2022, section 256S.2101, is amended by adding a subdivision
to read:

new text begin Subd. 1a. new text end

new text begin Temporary rate increase for disability waiver customized living
rates. new text end

new text begin Effective for services provided between July 1, 2023, and June 30, 2025, all rates
and rate components for community access for disability inclusion customized living and
brain injury customized living under section 256B.4914 shall be the sum of 21.6 percent of
the rates calculated under sections 256S.211 to 256S.215 and 78.4 percent of the rates
calculated using the rate methodology in effect as of June 30, 2017.
new text end

Sec. 3. new text begin DIRECTION TO COMMISSIONER; FOSTER CARE MORATORIUM
EXCEPTION APPLICATIONS.
new text end

new text begin (a) The commissioner must expedite the processing and review of all new and pending
applications for an initial foster care or community residential setting license under Minnesota
Statutes, section 245A.03, subdivision 7, paragraph (a), clauses (5) and (6).
new text end

new text begin (b) The commissioner must include on the application materials for an initial foster care
or community residential setting license under Minnesota Statutes, section 245A.03,
subdivision 7, paragraph (a), clauses (5) and (6), an opportunity for applicants to signify
that they are seeking an initial foster care or community residential setting license in order
to transition an existing operational customized living setting to a foster care or community
residential setting. Operational is defined in section 256B.49, subdivision 28.
new text end

new text begin (c) For any pending applications for a license under Minnesota Statutes, section 245A.03,
subdivision 7, paragraph (a), clause (5), the commissioner must determine if the applicant
is eligible for an exception under Minnesota Statutes, section 245A.03, subdivision 7,
paragraph (a), clause (6), and if so, act upon the application under clause (6) rather than
clause (5).
new text end

new text begin (d) The commissioner must increase to four the licensed capacity of any setting for
which the commissioner issued a license under Minnesota Statutes, section 245A.03,
subdivision 7, paragraph (a), clause (5), before the final enactment of this act.
new text end

new text begin (e) This section expires June 30, 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