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HF 4195

as introduced - 90th Legislature (2017 - 2018) Posted on 03/22/2018 02:24pm

KEY: stricken = removed, old language.
underscored = added, new language.
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A bill for an act
relating to human services; modifying adult foster care provisions; amending
Minnesota Statutes 2017 Supplement, sections 245A.03, subdivision 7; 245A.11,
subdivision 2a.

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

Section 1.

Minnesota Statutes 2017 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. 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 that are required to be registered under chapter 144D;

(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;

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

(6) new foster care licenses or community residential setting licenses determined to be
needed by the commissioner for the transition of people from the residential care waiver
services to foster care services. This exception applies only when:

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

(ii) the person's foster care services are less than or equal to the cost of the person's
services delivered in the residential care waiver service setting as determined by the lead
agency; or

(7) new foster care licenses or community residential setting licenses for people receiving
services under chapter 245D and residing in an unlicensed setting before May 1, deleted text begin 2017deleted text end new text begin 2021new text end ,
new text begin or for any opening for an individual in an unlicensed setting that had been occupied before
May 1, 2021,
new text end and for which a license is required. This exception does not apply to people
living in their own home. For purposes of this clause, there is a presumption that a foster
care or community residential setting license is new text begin not new text end required for services provided to three
or more people in a dwelling unit when the setting is controlled by the provider. deleted text begin A license
holder subject to this exception
deleted text end new text begin The commissioner new text end may rebut the presumption that a license
is new text begin not new text end required by seeking deleted text begin a reconsideration of the commissioner's determination. The
commissioner's
deleted text end deleted text begin disposition of a request for reconsideration is final and not subject todeleted text end new text begin an
new text end appeal under chapter 14. The exception is available until June 30, deleted text begin 2018deleted text end new text begin 2021new text end . This exception
is available when:

(i) 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

(ii) 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 unlicensed
setting as determined by the lead agency.

(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
reports 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 section 256B.0915, 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. Annually, by August 1, the commissioner shall provide
information and data on capacity of licensed long-term services and supports, actions taken
under the subdivision to manage statewide long-term services and supports resources, and
any recommendations for change to the legislative committees with jurisdiction over the
health and human services budget.

(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.

Sec. 2.

Minnesota Statutes 2017 Supplement, section 245A.11, subdivision 2a, is amended
to read:


Subd. 2a.

Adult foster care and community residential setting license capacity.

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

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

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

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

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

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

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

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

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

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

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

(2) the five-bed living arrangement is specified for each resident in the resident's:

(i) individualized plan of care;

(ii) individual service plan under section 256B.092, subdivision 1b, if required; or

(iii) individual resident placement agreement under Minnesota Rules, part 9555.5105,
subpart 19, if required;

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

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

(g) The commissioner shall not issue a new adult foster care license under paragraph (f)
after June 30, deleted text begin 2019deleted text end new text begin 2021new text end . The commissioner shall allow a facility with an adult foster care
license issued under paragraph (f) before June 30, deleted text begin 2019deleted text end new text begin 2021new text end , to continue with a capacity
of five adults if the license holder continues to comply with the requirements in paragraph
(f).