HF 3268

as introduced - 92nd Legislature (2021 - 2022) Posted on 03/17/2022 05:25pm

A bill for an act
relating to human services; modifying alternate overnight supervision in community
residential settings; modifying home and community-based services employee
scholarships; providing an ICF/DD operating rate increase; establishing direct
support professionals child care relief grants; establishing direct support
professionals and frontline supervisor employee retention payments; appropriating
money; amending Minnesota Statutes 2020, sections 245A.11, subdivisions 7, 7a;
256B.0918; 256B.5012, by adding a subdivision.

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

Section 1.

Minnesota Statutes 2020, section 245A.11, subdivision 7, is amended to read:

Subd. 7.

Adult foster care; variance for alternate overnight supervision.

(a) The
commissioner may grant a variance under section 245A.04, subdivision 9, to rule parts
requiring a caregiver to be present in an adult foster care home during normal sleeping hours
to allow for alternative methods of overnight supervision. The commissioner may grant the
variance if the local county licensing agency recommends the variance and the county
recommendation includes documentation verifying that:

(1) the county has approved the license holder's plan for alternative methods of providing
overnight supervision and determined the plan protects the residents' health, safety, and
rights;

(2) the license holder has obtained written and signed informed consent from each
resident or each resident's legal representative documenting the resident's or legal
representative's agreement with the alternative method of overnight supervision; and

(3) the alternative method of providing overnight supervision, which may include the
use of technology, 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.

(b) To be eligible for a variance under paragraph (a), the adult foster care license holder
must not have had a conditional license issued under section 245A.06, or any other licensing
sanction issued under section 245A.07 during the prior 24 months based on failure to provide
adequate supervision, health care services, or resident safety in the adult foster care home.

(c) A license holder requesting a variance under this subdivision to utilize technology
as a component of a plan for alternative overnight supervision may request the commissioner's
review in the absence of a county recommendation. Upon receipt of such a request from a
license holder, the commissioner shall review the variance request with the county.

(d) deleted text begin A variance granted by the commissioner according to this subdivision before January
1, 2014, to a license holder for an adult foster care home must transfer with the license when
the license converts to a community residential setting license under chapter 245D. The
terms and conditions of the variance remain in effect as approved at the time the variance
was granted. deleted text end new text begin The variance requirements under this subdivision for alternate overnight
supervision do not apply to community residential settings licensed under chapter 245D.
new text end

Sec. 2.

Minnesota Statutes 2020, section 245A.11, subdivision 7a, is amended to read:

Subd. 7a.

Alternate overnight supervision technology; adult foster care deleted text begin and
community residential setting deleted text end licenses.

(a) The commissioner may grant an applicant or
license holder an adult foster care deleted text begin or community residential setting deleted text end 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, or section 245D.02, subdivision
33b, 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, deleted text begin or applicable requirements under chapter deleted text end deleted text begin 245D deleted text end deleted text begin , deleted text end 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 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 resident served by the program 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 residents served by the program:

(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 resident served by the
program 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 resident's individualized plan of care, coordinated service and support plan
under sections 256B.0913, subdivision 8; 256B.092, subdivision 1b; 256B.49, subdivision
15; and 256S.10, 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 resident.

(f) Each resident's placement agreement, individual service agreement, and plan must
clearly state that the adult foster care deleted text begin or community residential setting deleted text end 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 residents served by the program under paragraph (e), clause (1) or (2);
and a signed informed consent from each resident served by the program 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 caregivers or direct support staff are 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 each resident's privacy related to electronic monitoring
and related to any electronically recorded data generated by the monitoring system. A
resident served by the program may not be removed from a program under this subdivision
for failure to consent to electronic monitoring. 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.02, 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.

(k) The commissioner shall evaluate license applications using the requirements in
paragraphs (d) to (f). The commissioner shall provide detailed application forms, including
a checklist of criteria needed for approval.

(l) To be eligible for a license under paragraph (a), the adult foster care deleted text begin or community
residential setting deleted text end license holder must not have had a conditional license issued under section
245A.06 or any licensing sanction under section 245A.07 during the prior 24 months based
on failure to provide adequate supervision, health care services, or resident safety in the
adult foster care home deleted text begin or community residential setting deleted text end .

(m) The commissioner shall review an application for an alternative overnight supervision
license within 60 days of receipt of the application. When the commissioner receives an
application that is incomplete because the applicant failed to submit required documents or
that is substantially deficient because the documents submitted do not meet licensing
requirements, the commissioner shall provide the applicant written notice that the application
is incomplete or substantially deficient. In the written notice to the applicant, the
commissioner shall identify documents that are missing or deficient and give the applicant
45 days to resubmit a second application that is substantially complete. An applicant's failure
to submit a substantially complete application after receiving notice from the commissioner
is a basis for license denial under section 245A.05. The commissioner shall complete
subsequent review within 30 days.

(n) Once the application is considered complete under paragraph (m), the commissioner
will approve or deny an application for an alternative overnight supervision license within
60 days.

(o) For the purposes of this subdivision, "supervision" means:

(1) oversight by a caregiver or direct support staff as specified in the individual resident's
place agreement or coordinated service and support plan and awareness of the resident's
needs and activities; and

(2) the presence of a caregiver or direct support staff in a residence during normal sleeping
hours, unless a determination has been made and documented in the individual's coordinated
service and support plan that the individual does not require the presence of a caregiver or
direct support staff during normal sleeping hours.

Sec. 3.

Minnesota Statutes 2020, section 256B.0918, is amended to read:

256B.0918 new text begin HOME AND COMMUNITY-BASED SERVICES new text end EMPLOYEE
SCHOLARSHIP deleted text begin COSTS deleted text end new text begin GRANT PROGRAM new text end .

Subdivision 1.

deleted text begin Program criteria deleted text end new text begin Establishment new text end .

Beginning on or after October 1, deleted text begin 2005 deleted text end new text begin
2021 new text end , within the limits of appropriations specifically available for this purpose, the
commissioner shall provide funding to qualified provider applicants for employee
scholarships for education in nursing deleted text begin and deleted text end new text begin , new text end other health care fields new text begin , or further training in an
employee's current position new text end . deleted text begin Employee scholarships must be for a course of study that is
expected to lead to career advancement with the provider or in the field of long-term care,
including home care or care of persons with disabilities, or nursing. deleted text end new text begin At a minimum, the
employee scholarship program must cover employee costs related to a course of study that
is expected to lead to career or position advancement with the provider or in the field of
long-term care, including home care, care of persons with disabilities, or nursing. new text end Providers
that secure this funding must use it to award scholarships to employees who work an average
of at least 20 hours per week for the provider. Executive management staff without direct
care duties, registered nurses, and therapists are not eligible to receive scholarships under
this section.

Subd. 2.

Participating providers.

The commissioner shall publish a request for proposals
in the State Register by deleted text begin August 15, 2005 deleted text end new text begin ....... new text end , specifying provider eligibility requirements,
deleted text begin provider selection criteria, program specifics, funding mechanism deleted text end new text begin criteria for a qualifying
employee scholarship program, documentation required for program participation, maximum
award amount new text end , and methods of evaluation. The commissioner may publish additional requests
for proposals deleted text begin in subsequent years deleted text end new text begin each year in which funding is available for this purpose new text end .
deleted text begin Providers who provide services funded through the following programs are eligible to apply
to participate in the scholarship program: home and community-based waivered services
for persons with developmental disabilities under section 256B.501; home and
community-based waivered services for the elderly under chapter deleted text end deleted text begin 256S deleted text end deleted text begin ; waivered services
under community access for disability inclusion under section 256B.49; community
alternative care waivered services under section 256B.49; brain injury waivered services
under section 256B.49; nursing services and home health services under section 256B.0625,
subdivision 6a; personal care services and nursing supervision of personal care services
under section 256B.0625, subdivision 19a; home care nursing services under section
256B.0625, subdivision 7; day training and habilitation services for adults with developmental
disabilities under sections 252.41 to 252.46; and intermediate care facilities for persons
with developmental disabilities under section 256B.5012.
deleted text end

new text begin Subd. 2a. new text end

new text begin Eligibility. new text end

new text begin Providers who provide services funded through the following
programs are eligible qualifying providers under this section:
new text end

new text begin (1) home and community-based waiver services for persons with developmental
disabilities under section 256B.092;
new text end

new text begin (2) community access for disability inclusion waiver services under section 256B.49;
new text end

new text begin (3) community alternative care waiver services under section 256B.49;
new text end

new text begin (4) brain injury waiver services under section 256B.49; and
new text end

new text begin (5) intermediate care facilities for persons with developmental disabilities under section
256B.5012.
new text end

new text begin Subd. 2b. new text end

new text begin Application requirements. new text end

new text begin Eligible qualifying providers seeking a grant
under this section shall submit an application to the commissioner. Each application must
contain a description of the employee scholarship program being proposed by the applicant,
including:
new text end

new text begin (1) criteria by which grant money will be distributed among employees;
new text end

new text begin (2) the need for the provider to enhance the education of the provider's workforce;
new text end

new text begin (3) the process for determining which employees will be eligible for scholarships;
new text end

new text begin (4) the expected degrees or credentials eligible for scholarships;
new text end

new text begin (5) the amount of funding that the applicant is seeking for the employee scholarship
program;
new text end

new text begin (6) a proposed budget detailing how grant money will be spent;
new text end

new text begin (7) any other sources of funding for the applicant's proposed employee scholarship
program; and
new text end

new text begin (8) plans for retaining eligible employees after the completion of their education.
new text end

Subd. 3.

Provider selection deleted text begin criteria deleted text end new text begin process new text end .

deleted text begin To be considered for scholarship funding,
the provider shall submit a completed application within the time frame specified by the
commissioner. In awarding funding, deleted text end The commissioner shall deleted text begin consider the following: deleted text end new text begin
determine a maximum award for grants and make grant selections based on the information
provided in the grant application and
new text end

deleted text begin (1) the size of the provider as measured in annual billing to the medical assistance
program. To be eligible, a provider must receive at least $300,000 annually in medical
assistance payments;
deleted text end

deleted text begin (2) the percentage of employees meeting the scholarship program recipient requirements;
deleted text end

deleted text begin (3) staff retention rates for paraprofessionals; and
deleted text end

deleted text begin (4) deleted text end other criteria determined by the commissioner. new text begin Notwithstanding any law or rule to
the contrary, money awarded to grantees in a grant agreement do not lapse until the grant
agreement expires.
new text end

Subd. 4.

deleted text begin Funding specifics deleted text end new text begin Provision of grants new text end .

deleted text begin Within the limits of appropriations
specifically available for this purpose, for the rate period beginning on or after October 1,
2005, to September 30, 2007, the commissioner shall provide to each provider listed in
subdivision 2 and awarded funds under subdivision 3 a medical assistance rate increase to
fund scholarships up to three-tenths percent of the medical assistance reimbursement rate.
The commissioner shall require providers to repay any portion of funds awarded under
subdivision 3 that is not used to fund scholarships. If applications exceed available funding,
funding shall be targeted to providers that employ a higher percentage of paraprofessional
staff or have lower rates of turnover of paraprofessional staff. During the subsequent years
of the program, the rate adjustment may be recalculated, at the discretion of the
commissioner. In making a recalculation the commissioner may consider the provider's
success at granting scholarships based on the amount spent during the previous year and
the availability of appropriations to continue the program. deleted text end new text begin The commissioner shall make
grants available to qualified providers of home and community-based services under
subdivision 2a. Grant money must be used by qualified providers to recruit and train staff
through the establishment of an employee scholarship fund.
new text end

Subd. 5.

Reporting requirements.

Participating providers shall new text begin submit an invoice for
reimbursement and a new text end report to the commissioner on a schedule determined by the
commissioner and on a form supplied by the commissioner deleted text begin for a scholarship rate for rate
periods beginning October 1, 2007 deleted text end . The report shall include the amount spent during the
reporting period on eligible scholarships, and, for each scholarship recipient, the name of
the recipient, new text begin the current position of the recipient, new text end the amount awarded, the educational
institution attended, the nature of the educational program, new text begin and new text end the expected or actual
program completion date deleted text begin , and a determination of the amount spent as a percentage of the
provider's reimbursement. The commissioner shall require providers to repay all of the
funds awarded under subdivision 3 if the report required in this subdivision is not filled
according to the schedule determined by the commissioner deleted text end . new text begin During the grant period, the
commissioner may require and collect from grant recipients other information necessary to
evaluate the program.
new text end

deleted text begin Subd. 6. deleted text end

deleted text begin Evaluation. deleted text end

deleted text begin The commissioner shall report to the legislature annually, beginning
March 15, 2007, on the use of these funds.
deleted text end

Sec. 4.

Minnesota Statutes 2020, section 256B.5012, is amended by adding a subdivision
to read:

new text begin Subd. 19. new text end

new text begin ICF/DD rate increases effective January 1, 2023. new text end

new text begin (a) For the rate period
beginning January 1, 2023, the commissioner shall increase operating payments for each
facility reimbursed under this section equal to five percent of the operating payment rates
in effect on December 31, 2022.
new text end

new text begin (b) For each facility, the commissioner shall apply the rate increase based on occupied
beds, using the percentage specified in this subdivision multiplied by the total payment rate,
including the variable rate but excluding the property-related payment rate in effect on
December 31, 2022. The total rate increase shall include the adjustment provided in section
256B.501, subdivision 12.
new text end

Sec. 5. new text begin DIRECT SUPPORT PROFESSIONAL CHILD CARE RELIEF GRANTS.
new text end

new text begin Subdivision 1. new text end

new text begin Establishment; purpose. new text end

new text begin The direct support professional child care relief
grant program is established to help with the costs of child care incurred by eligible direct
support professionals.
new text end

new text begin Subd. 2. new text end

new text begin Administration. new text end

new text begin The commissioner of human services shall administer the
direct support professional child care relief grant program. Up to ten percent of the
appropriation for the grant program under this section may be used by the commissioner
for administration of the grant program.
new text end

new text begin Subd. 3. new text end

new text begin Application. new text end

new text begin (a) Eligible direct support professionals must apply to the
commissioner for grant money on the forms and according to the timelines established by
the commissioner.
new text end

new text begin (b) The commissioner shall develop an expedited application process that includes a
form allowing applicants to meet the requirements of this section in as timely a manner as
possible. The commissioner shall allow the use of electronic submission of application
forms and accept electronic signatures.
new text end

new text begin Subd. 4. new text end

new text begin Eligibility. new text end

new text begin Eligible direct support professionals must:
new text end

new text begin (1) for the entire duration of the grant period, be employed by an employer who provides
services funded through one of the following programs:
new text end

new text begin (i) home and community-based waiver services for persons with developmental
disabilities under Minnesota Statutes, section 256B.092;
new text end

new text begin (ii) community access for disability inclusion waiver services under Minnesota Statutes,
section 256B.49;
new text end

new text begin (iii) community alternative care waiver services under Minnesota Statutes, section
256B.49;
new text end

new text begin (iv) brain injury waiver services under Minnesota Statutes, section 256B.49; or
new text end

new text begin (v) intermediate care facilities for persons with developmental disabilities under
Minnesota Statutes, section 256B.5012;
new text end

new text begin (2) have at least one child enrolled in out-of-home child care in a licensed or legal
unlicensed setting; and
new text end

new text begin (3) provide direct support services to clients.
new text end

new text begin Subd. 5. new text end

new text begin Grant awards. new text end

new text begin (a) The commissioner shall make grant awards to eligible direct
support professionals once per month.
new text end

new text begin (b) A direct support professional with one child in out-of-home child care qualifies for
a grant award up to $100 per month for 12 months. A direct support professional with two
or more children in out-of-home child care qualifies for a grant award of up to $200 per
month for 12 months.
new text end

Sec. 6. new text begin DIRECT SUPPORT PROFESSIONALS AND FRONTLINE SUPERVISOR
EMPLOYEE RETENTION PAYMENTS.
new text end

new text begin Subdivision 1. new text end

new text begin Establishment; purpose. new text end

new text begin The direct support professionals and frontline
supervisor employee retention payments program is established to retain these employees
through December 31, 2022.
new text end

new text begin Subd. 2. new text end

new text begin Administration. new text end

new text begin The commissioner of human services shall administer the
retention payment program under this section. Up to ten percent of the appropriation for
the retention payment program under this section may be used by the commissioner to
administer the retention payments.
new text end

new text begin Subd. 3. new text end

new text begin Application. new text end

new text begin (a) Qualifying providers must:
new text end

new text begin (1) apply to the commissioner for retention payments on forms and according to timelines
established by the commissioner; and
new text end

new text begin (2) provide the commissioner with documentation of the employment status of qualifying
direct support professionals and frontline supervisors employed by the qualifying provider
in order for those employees to receive a retention payment.
new text end

new text begin (b) The commissioner shall develop an expedited application process that includes a
form allowing applicants to meet the requirements of this section in as timely a manner as
possible. The commissioner shall allow the use of electronic submission of application
forms and accept electronic signatures.
new text end

new text begin Subd. 4. new text end

new text begin Eligibility. new text end

new text begin Eligible direct support professionals and frontline supervisors must:
new text end

new text begin (1) until December 31, 2022, be employed by a qualifying provider who provides services
funded through one of the following programs:
new text end

new text begin (i) home and community-based waiver services for persons with developmental
disabilities under Minnesota Statutes, section 256B.092;
new text end

new text begin (ii) community access for disability inclusion waiver services under Minnesota Statutes,
section 256B.49;
new text end

new text begin (iii) community alternative care waiver services under Minnesota Statutes, section
256B.49;
new text end

new text begin (iv) brain injury waiver services under Minnesota Statutes, section 256B.49; or
new text end

new text begin (v) intermediate care facilities for persons with developmental disabilities under
Minnesota Statutes, section 256B.5012; and
new text end

new text begin (2) provide direct support services to clients or frontline supervision of direct support
professionals.
new text end

new text begin Subd. 5. new text end

new text begin Retention payments. new text end

new text begin The commissioner shall distribute retention payments
equal to $1,500 to eligible direct support professionals and frontline supervisors who meet
the requirements of this section.
new text end

Sec. 7. new text begin APPROPRIATION; HOME AND COMMUNITY-BASED SERVICES
EMPLOYEE SCHOLARSHIP GRANT PROGRAM.
new text end

new text begin $10,000,000 in fiscal year 2023 is appropriated from the federal American Rescue Plan
state fiscal recovery funds to the commissioner of human services for the home and
community-based services employee scholarship grant program under Minnesota Statutes,
section 256B.0918. This is a onetime appropriation.
new text end

Sec. 8. new text begin APPROPRIATION; DIRECT SUPPORT PROFESSIONAL CHILD CARE
RELIEF GRANTS.
new text end

new text begin $40,000,000 in fiscal year 2023 is appropriated from the federal American Rescue Plan
state fiscal recovery funds to the commissioner of human services for direct support
professional child care relief grants. This is a onetime appropriation.
new text end

Sec. 9. new text begin APPROPRIATION; DIRECT SUPPORT PROFESSIONAL AND
FRONTLINE SUPERVISOR EMPLOYEE RETENTION PAYMENTS.
new text end

new text begin $50,000,000 in fiscal year 2023 is appropriated from the federal American Rescue Plan
state fiscal recovery funds to the commissioner of human services for direct support
professional and frontline supervisor employee retention payments. This is a onetime
appropriation.
new text end