HF 2398

as introduced - 80th Legislature (1997 - 1998) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act
  1.2             relating to health; setting standards for terminating 
  1.3             personal care services; requiring transition plans; 
  1.4             providing recipients with appeal rights; allowing the 
  1.5             commissioner to issue temporary stays of termination; 
  1.6             amending Minnesota Statutes 1996, sections 256.045, 
  1.7             subdivisions 1, 6, and by adding a subdivision; and 
  1.8             256B.0627, by adding a subdivision; Minnesota Statutes 
  1.9             1997 Supplement, section 256.045, subdivisions 3, 4, 
  1.10            5, and 7. 
  1.11  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.12     Section 1.  Minnesota Statutes 1996, section 256.045, 
  1.13  subdivision 1, is amended to read: 
  1.14     Subdivision 1.  [POWERS OF THE STATE AGENCY.] The 
  1.15  commissioner of human services may appoint one or more state 
  1.16  human services referees to conduct hearings and recommend orders 
  1.17  in accordance with subdivisions 3, 3a, 3b, 4a, 4b, and 5.  Human 
  1.18  services referees designated pursuant to this section may 
  1.19  administer oaths and shall be under the control and supervision 
  1.20  of the commissioner of human services and shall not be a part of 
  1.21  the office of administrative hearings established pursuant to 
  1.22  sections 14.48 to 14.56. 
  1.23     Sec. 2.  Minnesota Statutes 1997 Supplement, section 
  1.24  256.045, subdivision 3, is amended to read: 
  1.25     Subd. 3.  [STATE AGENCY HEARINGS.] (a) State agency 
  1.26  hearings are available for the following:  (1) any person 
  1.27  applying for, receiving or having received public assistance, 
  1.28  medical care, or a program of social services granted by the 
  2.1   state agency or a county agency or the federal Food Stamp Act 
  2.2   whose application for assistance is denied, not acted upon with 
  2.3   reasonable promptness, or whose assistance is suspended, 
  2.4   reduced, terminated, or claimed to have been incorrectly paid; 
  2.5   (2) any patient or relative aggrieved by an order of the 
  2.6   commissioner under section 252.27; (3) a party aggrieved by a 
  2.7   ruling of a prepaid health plan; (4) any individual or facility 
  2.8   determined by a lead agency to have maltreated a vulnerable 
  2.9   adult under section 626.557 after they have exercised their 
  2.10  right to administrative reconsideration under section 626.557; 
  2.11  (5) any person whose claim for foster care payment according to 
  2.12  a placement of the child resulting from a child protection 
  2.13  assessment under section 626.556 is denied or not acted upon 
  2.14  with reasonable promptness, regardless of funding source; (6) 
  2.15  any person to whom a right of appeal according to this section 
  2.16  is given by other provision of law; (7) an applicant aggrieved 
  2.17  by an adverse decision to an application for a hardship waiver 
  2.18  under section 256B.15; or (8) an individual or facility 
  2.19  determined to have maltreated a minor under section 626.556, 
  2.20  after the individual or facility has exercised the right to 
  2.21  administrative reconsideration under section 626.556; or (9) an 
  2.22  individual aggrieved by the transition plan provisions of a 
  2.23  personal care provider organization or individually enrolled 
  2.24  personal care assistant.  The failure to exercise the right to 
  2.25  an administrative reconsideration shall not be a bar to a 
  2.26  hearing under this section if federal law provides an individual 
  2.27  the right to a hearing to dispute a finding of maltreatment.  
  2.28  Individuals and organizations specified in this section may 
  2.29  contest the specified action, decision, or final disposition 
  2.30  before the state agency by submitting a written request for a 
  2.31  hearing to the state agency within 30 days after receiving 
  2.32  written notice of the action, decision, or final disposition, or 
  2.33  within 90 days of such written notice if the applicant, 
  2.34  recipient, patient, or relative shows good cause why the request 
  2.35  was not submitted within the 30-day time limit. 
  2.36     The hearing for an individual or facility under clause (4) 
  3.1   or (8) is the only administrative appeal to the final agency 
  3.2   determination specifically, including a challenge to the 
  3.3   accuracy and completeness of data under section 13.04.  Hearings 
  3.4   requested under clause (4) apply only to incidents of 
  3.5   maltreatment that occur on or after October 1, 1995.  Hearings 
  3.6   requested by nursing assistants in nursing homes alleged to have 
  3.7   maltreated a resident prior to October 1, 1995, shall be held as 
  3.8   a contested case proceeding under the provisions of chapter 14.  
  3.9   Hearings requested under clause (8) apply only to incidents of 
  3.10  maltreatment that occur on or after July 1, 1997.  A hearing for 
  3.11  an individual or facility under clause (8) is only available 
  3.12  when there is no juvenile court or adult criminal action 
  3.13  pending.  If such action is filed in either court while an 
  3.14  administrative review is pending, the administrative review must 
  3.15  be suspended until the judicial actions are completed.  If the 
  3.16  juvenile court action or criminal charge is dismissed or the 
  3.17  criminal action overturned, the matter may be considered in an 
  3.18  administrative hearing. 
  3.19     For purposes of this section, bargaining unit grievance 
  3.20  procedures are not an administrative appeal. 
  3.21     The scope of hearings involving claims to foster care 
  3.22  payments under clause (5) shall be limited to the issue of 
  3.23  whether the county is legally responsible for a child's 
  3.24  placement under court order or voluntary placement agreement 
  3.25  and, if so, the correct amount of foster care payment to be made 
  3.26  on the child's behalf and shall not include review of the 
  3.27  propriety of the county's child protection determination or 
  3.28  child placement decision. 
  3.29     (b) A vendor of medical care as defined in section 256B.02, 
  3.30  subdivision 7, or a vendor under contract with a county agency 
  3.31  to provide social services under section 256E.08, subdivision 4, 
  3.32  is not a party and may not request a hearing under this section, 
  3.33  except if assisting a recipient as provided in subdivision 4. 
  3.34     (c) An applicant or recipient is not entitled to receive 
  3.35  social services beyond the services included in the amended 
  3.36  community social services plan developed under section 256E.081, 
  4.1   subdivision 3, if the county agency has met the requirements in 
  4.2   section 256E.081. 
  4.3      (d) The commissioner may summarily affirm the county or 
  4.4   state agency's proposed action without a hearing when the sole 
  4.5   issue is an automatic change due to a change in state or federal 
  4.6   law. 
  4.7      Sec. 3.  Minnesota Statutes 1997 Supplement, section 
  4.8   256.045, subdivision 4, is amended to read: 
  4.9      Subd. 4.  [CONDUCT OF HEARINGS.] (a) All hearings held 
  4.10  pursuant to subdivision 3, 3a, 3b, or 4a, or 4b shall be 
  4.11  conducted according to the provisions of the federal Social 
  4.12  Security Act and the regulations implemented in accordance with 
  4.13  that act to enable this state to qualify for federal 
  4.14  grants-in-aid, and according to the rules and written policies 
  4.15  of the commissioner of human services.  County agencies shall 
  4.16  install equipment necessary to conduct telephone hearings.  A 
  4.17  state human services referee may schedule a telephone conference 
  4.18  hearing when the distance or time required to travel to the 
  4.19  county agency offices will cause a delay in the issuance of an 
  4.20  order, or to promote efficiency, or at the mutual request of the 
  4.21  parties.  Hearings may be conducted by telephone conferences 
  4.22  unless the applicant, recipient, former recipient, person, or 
  4.23  facility contesting maltreatment objects.  The hearing shall not 
  4.24  be held earlier than five days after filing of the required 
  4.25  notice with the county or state agency.  The state human 
  4.26  services referee shall notify all interested persons of the 
  4.27  time, date, and location of the hearing at least five days 
  4.28  before the date of the hearing.  Interested persons may be 
  4.29  represented by legal counsel or other representative of their 
  4.30  choice, including a provider of therapy services, at the hearing 
  4.31  and may appear personally, testify and offer evidence, and 
  4.32  examine and cross-examine witnesses.  The applicant, recipient, 
  4.33  former recipient, person, or facility contesting maltreatment 
  4.34  shall have the opportunity to examine the contents of the case 
  4.35  file and all documents and records to be used by the county or 
  4.36  state agency at the hearing at a reasonable time before the date 
  5.1   of the hearing and during the hearing.  In hearings under 
  5.2   subdivision 3, paragraph (a), clauses (4) and (8), either party 
  5.3   may subpoena the private data relating to the investigation 
  5.4   prepared by the agency under section 626.556 or 626.557 that is 
  5.5   not otherwise accessible under section 13.04, provided the 
  5.6   identity of the reporter may not be disclosed. 
  5.7      (b) The private data obtained by subpoena in a hearing 
  5.8   under subdivision 3, paragraph (a), clause (4) or (8), must be 
  5.9   subject to a protective order which prohibits its disclosure for 
  5.10  any other purpose outside the hearing provided for in this 
  5.11  section without prior order of the district court.  Disclosure 
  5.12  without court order is punishable by a sentence of not more than 
  5.13  90 days imprisonment or a fine of not more than $700, or both.  
  5.14  These restrictions on the use of private data do not prohibit 
  5.15  access to the data under section 13.03, subdivision 6.  Except 
  5.16  for appeals under subdivision 3, paragraph (a), clauses (4), 
  5.17  (5), and (8), upon request, the county agency shall provide 
  5.18  reimbursement for transportation, child care, photocopying, 
  5.19  medical assessment, witness fee, and other necessary and 
  5.20  reasonable costs incurred by the applicant, recipient, or former 
  5.21  recipient in connection with the appeal.  All evidence, except 
  5.22  that privileged by law, commonly accepted by reasonable people 
  5.23  in the conduct of their affairs as having probative value with 
  5.24  respect to the issues shall be submitted at the hearing and such 
  5.25  hearing shall not be "a contested case" within the meaning of 
  5.26  section 14.02, subdivision 3.  The agency must present its 
  5.27  evidence prior to or at the hearing, and may not submit evidence 
  5.28  after the hearing except by agreement of the parties at the 
  5.29  hearing, provided the petitioner has the opportunity to respond. 
  5.30     Sec. 4.  Minnesota Statutes 1996, section 256.045, is 
  5.31  amended by adding a subdivision to read: 
  5.32     Subd. 4b.  [PERSONAL CARE SERVICE APPEALS.] (a) A recipient 
  5.33  of personal care services may submit to the commissioner a 
  5.34  written request for a hearing before a state human services 
  5.35  referee, if a notice of termination issued by a personal care 
  5.36  provider organization or individually enrolled personal care 
  6.1   assistant under section 256B.0627, subdivision 9, does not 
  6.2   contain a transition plan or if the recipient believes that the 
  6.3   transition plan in the notice of termination does not adequately 
  6.4   meet the need of the recipient for personal care services.  A 
  6.5   recipient must file the request for a hearing with the 
  6.6   commissioner within 30 days of receipt of the notice of 
  6.7   termination. 
  6.8      (b) Recommended orders provided to the commissioner by a 
  6.9   human services referee, and any orders issued by the 
  6.10  commissioner, may address only the issues of whether a 
  6.11  termination order contains a transition plan, and whether any 
  6.12  transition plan adequately meets the need of the recipient for 
  6.13  personal care services.  Recommended orders of the human 
  6.14  services referee, and orders issued by the commissioner, shall 
  6.15  not require a personal care provider organization or 
  6.16  individually enrolled personal care assistant to continue to 
  6.17  provide services to a recipient, except as provided under 
  6.18  paragraph (c). 
  6.19     (c) Within ten days of receipt of a request for a hearing 
  6.20  under this subdivision, the commissioner may issue a temporary 
  6.21  order prohibiting a personal care provider organization or an 
  6.22  individually enrolled personal care assistant from terminating 
  6.23  the provision of personal care services to a recipient.  This 
  6.24  prohibition of termination shall remain in effect until the 
  6.25  commissioner determines that the personal care provider 
  6.26  organization or individually enrolled personal care assistant 
  6.27  has complied with any order issued by the commissioner under 
  6.28  this section. 
  6.29     Sec. 5.  Minnesota Statutes 1997 Supplement, section 
  6.30  256.045, subdivision 5, is amended to read: 
  6.31     Subd. 5.  [ORDERS OF THE COMMISSIONER OF HUMAN SERVICES.] A 
  6.32  state human services referee shall conduct a hearing on the 
  6.33  appeal and shall recommend an order to the commissioner of human 
  6.34  services.  The recommended order must be based on all relevant 
  6.35  evidence and must not be limited to a review of the propriety of 
  6.36  the state or county agency's action.  A referee may take 
  7.1   official notice of adjudicative facts.  The commissioner of 
  7.2   human services may accept the recommended order of a state human 
  7.3   services referee and issue the order to the county agency and 
  7.4   the applicant, recipient, former recipient, personal care 
  7.5   provider organization, individually enrolled personal care 
  7.6   assistant, or prepaid health plan.  The commissioner on refusing 
  7.7   to accept the recommended order of the state human services 
  7.8   referee, shall notify the petitioner, the agency, personal care 
  7.9   provider organization, individually enrolled personal care 
  7.10  assistant, or prepaid health plan of that fact and shall state 
  7.11  reasons therefor and shall allow each party ten days' time to 
  7.12  submit additional written argument on the matter.  After the 
  7.13  expiration of the ten-day period, the commissioner shall issue 
  7.14  an order on the matter to the petitioner, the agency, personal 
  7.15  care provider organization, individually enrolled personal care 
  7.16  assistant, or prepaid health plan. 
  7.17     A party aggrieved by an order of the commissioner may 
  7.18  appeal under subdivision 7, or request reconsideration by the 
  7.19  commissioner within 30 days after the date the commissioner 
  7.20  issues the order.  The commissioner may reconsider an order upon 
  7.21  request of any party or on the commissioner's own motion.  A 
  7.22  request for reconsideration does not stay implementation of the 
  7.23  commissioner's order.  Upon reconsideration, the commissioner 
  7.24  may issue an amended order or an order affirming the original 
  7.25  order. 
  7.26     Any order of the commissioner issued under this subdivision 
  7.27  shall be conclusive upon the parties unless appeal is taken in 
  7.28  the manner provided by subdivision 7.  Any order of the 
  7.29  commissioner is binding on the parties and must be implemented 
  7.30  by the state agency, a county agency, or a prepaid health plan 
  7.31  according to subdivision 3a, until the order is reversed by the 
  7.32  district court, or unless the commissioner or a district court 
  7.33  orders monthly assistance or aid or services paid or provided 
  7.34  under subdivision 10. 
  7.35     A vendor of medical care as defined in section 256B.02, 
  7.36  subdivision 7, or a vendor under contract with a county agency 
  8.1   to provide social services under section 256E.08, subdivision 4, 
  8.2   is not a party and may not request a hearing or seek judicial 
  8.3   review of an order issued under this section, unless assisting a 
  8.4   recipient as provided in subdivision 4.  A prepaid health plan 
  8.5   is a party to an appeal under subdivision 3a, but cannot seek 
  8.6   judicial review of an order issued under this section.  A 
  8.7   personal care provider organization or individually enrolled 
  8.8   personal care assistant is party to an appeal under subdivision 
  8.9   4b, but cannot seek judicial review of an order issued under 
  8.10  this section. 
  8.11     Sec. 6.  Minnesota Statutes 1996, section 256.045, 
  8.12  subdivision 6, is amended to read: 
  8.13     Subd. 6.  [ADDITIONAL POWERS OF THE COMMISSIONER; 
  8.14  SUBPOENAS.] (a) The commissioner of human services, or the 
  8.15  commissioner of health for matters within the commissioner's 
  8.16  jurisdiction under subdivision 3b, may initiate a review of any 
  8.17  action or decision of a county agency and direct that the matter 
  8.18  be presented to a state human services referee for a hearing 
  8.19  held under subdivision 3, 3a, 3b, or 4a.  In all matters dealing 
  8.20  with human services committed by law to the discretion of the 
  8.21  county agency, the commissioner's judgment may be substituted 
  8.22  for that of the county agency.  The commissioner may order an 
  8.23  independent examination when appropriate. 
  8.24     (b) Any party to a hearing held pursuant to subdivision 3, 
  8.25  3a, 3b, or 4a, or 4b may request that the commissioner issue a 
  8.26  subpoena to compel the attendance of witnesses at the hearing.  
  8.27  The issuance, service, and enforcement of subpoenas under this 
  8.28  subdivision is governed by section 357.22 and the Minnesota 
  8.29  Rules of Civil Procedure. 
  8.30     (c) The commissioner may issue a temporary order staying a 
  8.31  proposed demission by a residential facility licensed under 
  8.32  chapter 245A while an appeal by a recipient under subdivision 3 
  8.33  is pending or for the period of time necessary for the county 
  8.34  agency to implement the commissioner's order. 
  8.35     Sec. 7.  Minnesota Statutes 1997 Supplement, section 
  8.36  256.045, subdivision 7, is amended to read: 
  9.1      Subd. 7.  [JUDICIAL REVIEW.] Except for a prepaid health 
  9.2   plan, a personal care provider organization, or an individually 
  9.3   enrolled personal care assistant, any party who is aggrieved by 
  9.4   an order of the commissioner of human services, or the 
  9.5   commissioner of health in appeals within the commissioner's 
  9.6   jurisdiction under subdivision 3b, may appeal the order to the 
  9.7   district court of the county responsible for furnishing 
  9.8   assistance, or, in appeals under subdivision 3b, the county 
  9.9   where the maltreatment occurred, by serving a written copy of a 
  9.10  notice of appeal upon the commissioner and any adverse party of 
  9.11  record within 30 days after the date the commissioner issued the 
  9.12  order, the amended order, or order affirming the original order, 
  9.13  and by filing the original notice and proof of service with the 
  9.14  court administrator of the district court.  Service may be made 
  9.15  personally or by mail; service by mail is complete upon mailing; 
  9.16  no filing fee shall be required by the court administrator in 
  9.17  appeals taken pursuant to this subdivision, with the exception 
  9.18  of appeals taken under subdivision 3b.  The commissioner may 
  9.19  elect to become a party to the proceedings in the district 
  9.20  court.  Except for appeals under subdivision 3b, any party may 
  9.21  demand that the commissioner furnish all parties to the 
  9.22  proceedings with a copy of the decision, and a transcript of any 
  9.23  testimony, evidence, or other supporting papers from the hearing 
  9.24  held before the human services referee, by serving a written 
  9.25  demand upon the commissioner within 30 days after service of the 
  9.26  notice of appeal.  Any party aggrieved by the failure of an 
  9.27  adverse party to obey an order issued by the commissioner under 
  9.28  subdivision 5 may compel performance according to the order in 
  9.29  the manner prescribed in sections 586.01 to 586.12. 
  9.30     Sec. 8.  Minnesota Statutes 1996, section 256B.0627, is 
  9.31  amended by adding a subdivision to read: 
  9.32     Subd. 9.  [STANDARDS FOR TERMINATION OF PERSONAL CARE 
  9.33  SERVICES.] (a) Personal care provider organizations and 
  9.34  individually enrolled personal care assistants shall provide 
  9.35  recipients with at least 30 days written notice of termination 
  9.36  of services.  The notice of termination must: 
 10.1      (1) specify the reasons for service termination, including, 
 10.2   if applicable, an explanation of why the recipient's care needs 
 10.3   cannot be met by the provider; 
 10.4      (2) include a transition plan that identifies another 
 10.5   personal care provider organization or individually enrolled 
 10.6   personal care assistant capable of adequately meeting the 
 10.7   recipient's need for personal care services, and coordinates the 
 10.8   transfer of the recipient to the new organization or provider; 
 10.9   and 
 10.10     (3) inform the recipient of the right to appeal under 
 10.11  section 256.045, subdivision 4b.