HF 2938

as introduced - 86th Legislature (2009 - 2010) Posted on 02/11/2010 04:29pm

A bill for an act
relating to human services; modifying programs and licensure provisions for
services to persons with disabilities; amending Minnesota Statutes 2008, section
326B.43, subdivision 2; Minnesota Statutes 2009 Supplement, sections 245A.03,
subdivision 7; 245A.11, subdivisions 7a, 7b; 256D.44, subdivision 5; Laws 2009,
chapter 79, article 8, sections 81; 84.

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

Section 1.

Minnesota Statutes 2009 Supplement, 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 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. Exceptions to the moratorium include:

(1) foster care settings that are required to be registered under chapter 144D;

(2) foster care licenses replacing foster care licenses in existence on May 15, 2009,
and determined to be needed by the commissioner under paragraph deleted text begin (b) deleted text end new text begin (c) new text end ;

(3) new foster care licenses determined to be needed by the commissioner under
paragraph deleted text begin (b) deleted text end new text begin (c) new text end for the closure of a nursing facility, ICF/MR, or regional treatment center;

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

(5) new foster care licenses determined to be needed by the commissioner for the
transition of people from personal care assistance to the home and community-based
services.

new text begin (b) When a foster care license is converted to a license under section 245A.11,
subdivision 7a, if that license is later revoked or surrendered, the county shall retain the
number of beds that had previously been licensed under Minnesota Rules, parts 2960.3000
to 2960.3340 or 9555.5105 to 9555.6265.
new text end

deleted text begin (b) deleted text end new text begin (c) new text end The commissioner shall determine the need for newly licensed foster care
homes 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.

deleted text begin (c) deleted text end new text begin (d) new text end Residential settings that would otherwise be subject to the moratorium
established in paragraph (a), that are in the process of receiving an adult or child foster
care license as of July 1, 2009, shall be allowed to continue to complete the process of
receiving an adult or child foster care license. For this paragraph, all of the following
conditions must be met to be considered in the process of receiving an adult or child
foster care license:

(1) participants have made decisions to move into the residential setting, including
documentation in each participant's care plan;

(2) the provider has purchased housing or has made a financial investment in the
property;

(3) the lead agency has approved the plans, including costs for the residential setting
for each individual;

(4) the completion of the licensing process, including all necessary inspections, is
the only remaining component prior to being able to provide services; and

(5) the needs of the individuals cannot be met within the existing capacity in that
county.

To qualify for the process under this paragraph, the lead agency must submit
documentation to the commissioner by August 1, 2009, that all of the above criteria are
met.

deleted text begin (d) deleted text end new text begin (e) new text end The commissioner shall study the effects of the license moratorium under this
subdivision and shall report back to the legislature by January 15, 2011.

Sec. 2.

Minnesota Statutes 2009 Supplement, section 245A.11, subdivision 7a, is
amended to read:

Subd. 7a.

Alternate overnight supervision technology; adult foster care license.

(a) The commissioner may grant an applicant or license holder an adult foster care license
for a residence that does not have a caregiver in the residence during normal sleeping
hours as required under Minnesota Rules, part 9555.5105, subpart 37, item B, but uses
monitoring technology to alert the license holder when an incident occurs that may
jeopardize the health, safety, or rights of a foster care recipient. The applicant or license
holder must comply with all other requirements under Minnesota Rules, parts 9555.5105
to 9555.6265, and the requirements under this subdivision. The license printed by the
commissioner must state in bold and large font:

(1) that the facility is under electronic monitoring; and

(2) the telephone number of the county's common entry point for making reports of
suspected maltreatment of vulnerable adults under section 626.557, subdivision 9.

(b) Applications for a license under this section must be submitted directly to
the Department of Human Services licensing division. The licensing division must
immediately notify the host county and lead county contract agency and the host county
licensing agency. The licensing division must collaborate with the county licensing
agency in the review of the application and the licensing of the program.

(c) Before a license is issued by the commissioner, and for the duration of the
license, the applicant or license holder must establish, maintain, and document the
implementation of written policies and procedures addressing the requirements in
paragraphs (d) through (f).

(d) The applicant or license holder must have policies and procedures that:

(1) establish characteristics of target populations that will be admitted into the home,
and characteristics of populations that will not be accepted into the home;

(2) explain the discharge process when a foster care recipient requires overnight
supervision or other services that cannot be provided by the license holder due to the
limited hours that the license holder is on site;

(3) describe the types of events to which the program will respond with a physical
presence when those events occur in the home during time when staff are not on site, and
how the license holder's response plan meets the requirements in paragraph (e), clause
(1) or (2);

(4) establish a process for documenting a review of the implementation and
effectiveness of the response protocol for the response required under paragraph (e),
clause (1) or (2). The documentation must include:

(i) a description of the triggering incident;

(ii) the date and time of the triggering incident;

(iii) the time of the response or responses under paragraph (e), clause (1) or (2);

(iv) whether the response met the resident's needs;

(v) whether the existing policies and response protocols were followed; and

(vi) whether the existing policies and protocols are adequate or need modification.

When no physical presence response is completed for a three-month period, the
license holder's written policies and procedures must require a physical presence response
drill to be conducted for which the effectiveness of the response protocol under paragraph
(e), clause (1) or (2), will be reviewed and documented as required under this clause; and

(5) establish that emergency and nonemergency phone numbers are posted in a
prominent location in a common area of the home where they can be easily observed by a
person responding to an incident who is not otherwise affiliated with the home.

(e) The license holder must document and include in the license application which
response alternative under clause (1) or (2) is in place for responding to situations that
present a serious risk to the health, safety, or rights of people receiving foster care services
in the home:

(1) response alternative (1) requires only the technology to provide an electronic
notification or alert to the license holder that an event is underway that requires a response.
Under this alternative, no more than ten minutes will pass before the license holder will be
physically present on site to respond to the situation; or

(2) response alternative (2) requires the electronic notification and alert system
under alternative (1), but more than ten minutes may pass before the license holder is
present on site to respond to the situation. Under alternative (2), all of the following
conditions are met:

(i) the license holder has a written description of the interactive technological
applications that will assist the license holder in communicating with and assessing the
needs related to the care, health, and safety of the foster care recipients. This interactive
technology must permit the license holder to remotely assess the well being of the foster
care recipient without requiring the initiation of the foster care recipient. Requiring the
foster care recipient to initiate a telephone call does not meet this requirement;

(ii) the license holder documents how the remote license holder is qualified and
capable of meeting the needs of the foster care recipients and assessing foster care
recipients' needs under item (i) during the absence of the license holder on site;

(iii) the license holder maintains written procedures to dispatch emergency response
personnel to the site in the event of an identified emergency; and

(iv) each foster care recipient's individualized plan of care, individual service plan
under section 256B.092, subdivision 1b, if required, or individual resident placement
agreement under Minnesota Rules, part 9555.5105, subpart 19, if required, identifies the
maximum response time, which may be greater than ten minutes, for the license holder
to be on site for that foster care recipient.

(f) All placement agreements, individual service agreements, and plans applicable
to the foster care recipient must clearly state that the adult foster care license category is
a program without the presence of a caregiver in the residence during normal sleeping
hours; the protocols in place for responding to situations that present a serious risk to
the health, safety, or rights of foster care recipients under paragraph (e), clause (1)
or (2); and a signed informed consent from each foster care recipient or the person's
legal representative documenting the person's or legal representative's agreement with
placement in the program. If electronic monitoring technology is used in the home, the
informed consent form must also explain the following:

(1) how any electronic monitoring is incorporated into the alternative supervision
system;

(2) the backup system for any electronic monitoring in times of electrical outages or
other equipment malfunctions;

(3) how the license holder is trained on the use of the technology;

(4) the event types and license holder response times established under paragraph (e);

(5) how the license holder protects the foster care recipient's privacy related to
electronic monitoring and related to any electronically recorded data generated by the
monitoring system. deleted text begin A foster care recipient may not be removed from a program under
this subdivision for failure to consent to electronic monitoring. deleted text end The consent form must
explain where and how the electronically recorded data is stored, with whom it will be
shared, and how long it is retained; and

(6) the risks and benefits of the alternative overnight supervision system.

The written explanations under clauses (1) to (6) may be accomplished through
cross-references to other policies and procedures as long as they are explained to the
person giving consent, and the person giving consent is offered a copy.

(g) Nothing in this section requires the applicant or license holder to develop or
maintain separate or duplicative policies, procedures, documentation, consent forms, or
individual plans that may be required for other licensing standards, if the requirements of
this section are incorporated into those documents.

(h) The commissioner may grant variances to the requirements of this section
according to section 245A.04, subdivision 9.

(i) For the purposes of paragraphs (d) through (h), "license holder" has the meaning
under section 245A.2, subdivision 9, and additionally includes all staff, volunteers, and
contractors affiliated with the license holder.

(j) For the purposes of paragraph (e), the terms "assess" and "assessing" mean to
remotely determine what action the license holder needs to take to protect the well-being
of the foster care recipient.

Sec. 3.

Minnesota Statutes 2009 Supplement, section 245A.11, subdivision 7b, is
amended to read:

Subd. 7b.

Adult foster care data privacy and security.

(a) An adult foster
care license holder who creates, collects, records, maintains, stores, or discloses any
individually identifiable recipient data, whether in an electronic or any other format,
must comply with the privacy and security provisions of applicable privacy laws and
regulations, including:

(1) the federal Health Insurance Portability and Accountability Act of 1996
(HIPAA), Public Law 104-1; and the HIPAA Privacy Rule, Code of Federal Regulations,
title 45, part 160, and subparts A and E of part 164; and

(2) the Minnesota Government Data Practices Act as codified in chapter 13.

(b) For purposes of licensure, the license holder shall be monitored for compliance
with the following data privacy and security provisions:

(1) the license holder must control access to data on foster care recipients according
to the definitions of public and private data on individuals under section 13.02;
classification of the data on individuals as private under section 13.46, subdivision 2;
and control over the collection, storage, use, access, protection, and contracting related
to data according to section 13.05, in which the license holder is assigned the duties
of a government entity;

(2) the license holder must provide each foster care recipient with a notice that
meets the requirements under section 13.04, in which the license holder is assigned the
duties of the government entity, and that meets the requirements of Code of Federal
Regulations, title 45, part 164.52. The notice shall describe the purpose for collection of
the data, and to whom and why it may be disclosed pursuant to law. The notice must
inform the recipient that the license holder uses electronic monitoring and, if applicable,
that recording technology is used;

(3) the license holder must not install monitoring cameras in bathrooms;

(4) electronic monitoring cameras must not be concealed from the foster care
recipients; and

(5) electronic video and audio recordings of foster care recipients shall not be stored
by the license holder for more than five days new text begin unless the recording is pertinent to an
investigation of a reported incident of abuse or neglect under section 626.556 or 626.557,
or if requested by a recipient for a specific reported incident of abuse or neglect new text end .

(c) The commissioner shall develop, and make available to license holders and
county licensing workers, a checklist of the data privacy provisions to be monitored
for purposes of licensure.

Sec. 4.

Minnesota Statutes 2009 Supplement, section 256D.44, subdivision 5, is
amended to read:

Subd. 5.

Special needs.

In addition to the state standards of assistance established in
subdivisions 1 to 4, payments are allowed for the following special needs of recipients of
Minnesota supplemental aid who are not residents of a nursing home, a regional treatment
center, or a group residential housing facility.

(a) The county agency shall pay a monthly allowance for medically prescribed
diets if the cost of those additional dietary needs cannot be met through some other
maintenance benefit. The need for special diets or dietary items must be prescribed by
a licensed physician. Costs for special diets shall be determined as percentages of the
allotment for a one-person household under the thrifty food plan as defined by the United
States Department of Agriculture. The types of diets and the percentages of the thrifty
food plan that are covered are as follows:

(1) high protein diet, at least 80 grams daily, 25 percent of thrifty food plan;

(2) controlled protein diet, 40 to 60 grams and requires special products, 100 percent
of thrifty food plan;

(3) controlled protein diet, less than 40 grams and requires special products, 125
percent of thrifty food plan;

(4) low cholesterol diet, 25 percent of thrifty food plan;

(5) high residue diet, 20 percent of thrifty food plan;

(6) pregnancy and lactation diet, 35 percent of thrifty food plan;

(7) gluten-free diet, 25 percent of thrifty food plan;

(8) lactose-free diet, 25 percent of thrifty food plan;

(9) antidumping diet, 15 percent of thrifty food plan;

(10) hypoglycemic diet, 15 percent of thrifty food plan; or

(11) ketogenic diet, 25 percent of thrifty food plan.

(b) Payment for nonrecurring special needs must be allowed for necessary home
repairs or necessary repairs or replacement of household furniture and appliances using
the payment standard of the AFDC program in effect on July 16, 1996, for these expenses,
as long as other funding sources are not available.

(c) A fee for guardian or conservator service is allowed at a reasonable rate
negotiated by the county or approved by the court. This rate shall not exceed five percent
of the assistance unit's gross monthly income up to a maximum of $100 per month. If the
guardian or conservator is a member of the county agency staff, no fee is allowed.

(d) The county agency shall continue to pay a monthly allowance of $68 for
restaurant meals for a person who was receiving a restaurant meal allowance on June 1,
1990, and who eats two or more meals in a restaurant daily. The allowance must continue
until the person has not received Minnesota supplemental aid for one full calendar month
or until the person's living arrangement changes and the person no longer meets the criteria
for the restaurant meal allowance, whichever occurs first.

(e) A fee of ten percent of the recipient's gross income or $25, whichever is less,
is allowed for representative payee services provided by an agency that meets the
requirements under SSI regulations to charge a fee for representative payee services. This
special need is available to all recipients of Minnesota supplemental aid regardless of
their living arrangement.

(f)(1) Notwithstanding the language in this subdivision, an amount equal to the
maximum allotment authorized by the federal Food Stamp Program for a single individual
which is in effect on the first day of July of each year will be added to the standards of
assistance established in subdivisions 1 to 4 for adults under the age of 65 who qualify
as shelter needy and are: (i) relocating from an institution, or an adult mental health
residential treatment program under section 256B.0622; (ii) eligible for the self-directed
supports option as defined under section 256B.0657, subdivision 2; or (iii) home and
community-based waiver recipients deleted text begin living in their own home or rented or leased apartment
which is not owned, operated, or controlled by a provider of service not related by blood
or marriage deleted text end .

(2) Notwithstanding subdivision 3, paragraph (c), an individual eligible for the
shelter needy benefit under this paragraph is considered a household of one. An eligible
individual who receives this benefit prior to age 65 may continue to receive the benefit
after the age of 65.

(3) "Shelter needy" means that the assistance unit incurs monthly shelter costs that
exceed 40 percent of the assistance unit's gross income before the application of this
special needs standard. "Gross income" for the purposes of this section is the applicant's or
recipient's income as defined in section 256D.35, subdivision 10, or the standard specified
in subdivision 3, paragraph (a) or (b), whichever is greater. A recipient of a federal or
state housing subsidy, that limits shelter costs to a percentage of gross income, shall not be
considered shelter needy for purposes of this paragraph.

(g) Notwithstanding this subdivision, to access housing and services as provided in
paragraph (f), the recipient may choose housing that may or may not be owned, operated,
or controlled by the recipient's service provider deleted text begin if the housing is located in a multifamily
building of six or more units. The maximum number of units that may be used by
recipients of this program shall be 50 percent of the units in a building. The department
shall develop an exception process to the 50 percent maximum. This paragraph expires
on June 30, 2011 deleted text end .

Sec. 5.

Minnesota Statutes 2008, section 326B.43, subdivision 2, is amended to read:

Subd. 2.

Agreement with municipality.

The commissioner may enter into an
agreement with a municipality, in which the municipality agrees to perform plan and
specification reviews required to be performed by the commissioner under Minnesota
Rules, part 4715.3130, if:

(a) the municipality has adopted:

(1) the plumbing code;

(2) an ordinance that requires plumbing plans and specifications to be submitted to,
reviewed, and approved by the municipality, except as provided in paragraph (n);

(3) an ordinance that authorizes the municipality to perform inspections required by
the plumbing code; and

(4) an ordinance that authorizes the municipality to enforce the plumbing code in its
entirety, except as provided in paragraph (p);

(b) the municipality agrees to review plumbing plans and specifications for all
construction for which the plumbing code requires the review of plumbing plans and
specifications, except as provided in paragraph (n);

(c) the municipality agrees that, when it reviews plumbing plans and specifications
under paragraph (b), the review will:

(1) reflect the degree to which the plans and specifications affect the public health
and conform to the provisions of the plumbing code;

(2) ensure that there is no physical connection between water supply systems that
are safe for domestic use and those that are unsafe for domestic use; and

(3) ensure that there is no apparatus through which unsafe water may be discharged
or drawn into a safe water supply system;

(d) the municipality agrees to perform all inspections required by the plumbing
code in connection with projects for which the municipality reviews plumbing plans and
specifications under paragraph (b);

(e) the commissioner determines that the individuals who will conduct the
inspections and the plumbing plan and specification reviews for the municipality do not
have any conflict of interest in conducting the inspections and the plan and specification
reviews;

(f) individuals who will conduct the plumbing plan and specification reviews for
the municipality are:

(1) licensed master plumbers;

(2) licensed professional engineers; or

(3) individuals who are working under the supervision of a licensed professional
engineer or licensed master plumber and who are licensed master or journeyman plumbers
or hold a postsecondary degree in engineering;

(g) individuals who will conduct the plumbing plan and specification reviews for
the municipality have passed a competency assessment required by the commissioner to
assess the individual's competency at reviewing plumbing plans and specifications;

(h) individuals who will conduct the plumbing inspections for the municipality
are licensed master or journeyman plumbers, or inspectors meeting the competency
requirements established in rules adopted under section 326B.135;

(i) the municipality agrees to enforce in its entirety the plumbing code on all
projects, except as provided in paragraph (p);

(j) the municipality agrees to keep official records of all documents received,
including plans, specifications, surveys, and plot plans, and of all plan reviews, permits
and certificates issued, reports of inspections, and notices issued in connection with
plumbing inspections and the review of plumbing plans and specifications;

(k) the municipality agrees to maintain the records described in paragraph (j) in the
official records of the municipality for the period required for the retention of public
records under section 138.17, and shall make these records readily available for review at
the request of the commissioner;

(l) the municipality and the commissioner agree that if at any time during the
agreement the municipality does not have in effect the plumbing code or any of ordinances
described in paragraph (a), or if the commissioner determines that the municipality is not
properly administering and enforcing the plumbing code or is otherwise not complying
with the agreement:

(1) the commissioner may, effective 14 days after the municipality's receipt of
written notice, terminate the agreement;

(2) the municipality may challenge the termination in a contested case before the
commissioner pursuant to the Administrative Procedure Act; and

(3) while any challenge is pending under clause (2), the commissioner shall perform
plan and specification reviews within the municipality under Minnesota Rules, part
4715.3130;

(m) the municipality and the commissioner agree that the municipality may terminate
the agreement with or without cause on 90 days' written notice to the commissioner;

(n) the municipality and the commissioner agree that the municipality shall forward
to the state for review all plumbing plans and specifications for the following types of
projects within the municipality:

(1) hospitals, nursing homes, supervised living facilities new text begin licensed for eight or
more individuals new text end , and similar health-care-related facilities regulated by the Minnesota
Department of Health;

(2) buildings owned by the federal or state government; and

(3) projects of a special nature for which department review is requested by either
the municipality or the state;

(o) where the municipality forwards to the state for review plumbing plans and
specifications, as provided in paragraph (n), the municipality shall not collect any fee for
plan review, and the commissioner shall collect all applicable fees for plan review; and

(p) no municipality shall revoke, suspend, or place restrictions on any plumbing
license issued by the state.

Sec. 6.

Laws 2009, chapter 79, article 8, section 81, is amended to read:

Sec. 81. ESTABLISHING A SINGLE SET OF STANDARDS.

(a) The commissioner of human services shall consult with disability service
providers, advocates, counties, and consumer families to develop a single set of standards new text begin ,
to be referred to as "quality outcome standards," new text end governing services for people with
disabilities receiving services under the home and community-based waiver services
program to replace all or portions of existing laws and rules including, but not limited
to, data practices, licensure of facilities and providers, background studies, reporting
of maltreatment of minors, reporting of maltreatment of vulnerable adults, and the
psychotropic medication checklist. The standards must:

(1) enable optimum consumer choice;

(2) be consumer driven;

(3) link services to individual needs and life goals;

(4) be based on quality assurance and individual outcomes;

(5) utilize the people closest to the recipient, who may include family, friends, and
health and service providers, in conjunction with the recipient's risk management plan to
assist the recipient or the recipient's guardian in making decisions that meet the recipient's
needs in a cost-effective manner and assure the recipient's health and safety;

(6) utilize person-centered planning; and

(7) maximize federal financial participation.

(b) The commissioner may consult with existing stakeholder groups convened under
the commissioner's authority, including the home and community-based expert services
panel established by the commissioner in 2008, to meet all or some of the requirements
of this section.

(c) The commissioner shall provide the reports and plans required by this section to
the legislative committees and budget divisions with jurisdiction over health and human
services policy and finance by January 15, 2012.

Sec. 7.

Laws 2009, chapter 79, article 8, section 84, is amended to read:

Sec. 84. HOUSING OPTIONS.

The commissioner of human services, in consultation with the commissioner of
administration and the Minnesota Housing Finance Agency, and representatives of
counties, residents' advocacy groups, consumers of housing services, and provider
agencies shall explore ways to maximize the availability and affordability of housing
choices available to persons with disabilities or who need care assistance due to other
health challenges. A goal shall also be to minimize state physical plant costs in order to
serve more persons with appropriate program and care support. Consideration shall be
given to:

(1) improved access to rent subsidies;

(2) use of cooperatives, land trusts, and other limited equity ownership models;

(3) whether a public equity housing fund should be established that would maintain
the state's interest, to the extent paid from state funds, including group residential housing
and Minnesota supplemental aid shelter-needy funds in provider-owned housing, so that
when sold, the state would recover its share for a public equity fund to be used for future
public needs under this chapter;

(4) the desirability of the state acquiring an ownership interest or promoting the
use of publicly owned housing;

(5) promoting more choices in the market for accessible housing that meets the
needs of persons with physical challenges; deleted text begin and
deleted text end

(6) what consumer ownership models, if any, are appropriate new text begin ; and
new text end

new text begin (7) the assumption of risk and issues pertaining to financial liability new text end .

The commissioner shall provide a written report on the findings of the evaluation of
housing options to the chairs and ranking minority members of the house of representatives
and senate standing committees with jurisdiction over health and human services policy
and funding by December 15, 2010. This report shall replace the November 1, 2010,
annual report by the commissioner required in Minnesota Statutes, sections 256B.0916,
subdivision 7, and 256B.49, subdivision 21.