SF 2876

1st Engrossment - 92nd Legislature (2021 - 2022) Posted on 02/16/2022 01:12pm

A bill for an act
relating to human services; allowing the commissioner of human services to
reinstate waivers and modifications to certain human services programs; modifying
the membership and duties of the task force on eliminating subminimum wages;
modifying disproportionate share rate adjustments for certain customized living
services; permitting temporary remote delivery of qualified professional services;
amending Minnesota Statutes 2021 Supplement, section 256S.205; Laws 2021,
First Special Session chapter 7, article 17, section 14.

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

Section 1.

Minnesota Statutes 2021 Supplement, section 256S.205, is amended to read:

256S.205 CUSTOMIZED LIVING SERVICES; DISPROPORTIONATE SHARE
RATE ADJUSTMENTS.

Subdivision 1.

Definitions.

(a) For the purposes of this section, the terms in this
subdivision have the meanings given.

(b) "Application year" means a year in which a facility submits an application for
designation as a disproportionate share facility.

(c) deleted text begin "Assisted living facility" or "facility" means an assisted living facility licensed under
chapter 144G deleted text end new text begin "Customized living resident" means a resident of a facility who is receiving
either 24-hour customized living services or customized living services authorized under
any of the following: the elderly waiver; the brain injury waiver; or the community access
for disability inclusion waiver new text end .

(d) "Disproportionate share facility" means deleted text begin an assisted living deleted text end new text begin a new text end facility designated by
the commissioner under subdivision 4.

new text begin (e) "Facility" means either an assisted living facility licensed under chapter 144G or a
setting that is exempt from assisted living licensure under section 144G.08, subdivision 7,
clauses (10) to (13).
new text end

new text begin (f) "Rate year" means January 1 to December 31 of the year following an application
year.
new text end

Subd. 2.

Rate adjustment application.

deleted text begin An assisted living deleted text end new text begin A new text end facility may apply to the
commissioner for designation as a disproportionate share facility. Applications must be
submitted annually between deleted text begin October deleted text end new text begin September new text end 1 and deleted text begin October 31 deleted text end new text begin September 30 new text end . The
applying facility must apply in a manner determined by the commissioner. The applying
facility must document deleted text begin as a percentage the census of elderly waiver participants deleted text end new text begin each of the
following on the application:
new text end

new text begin (1) the number of customized living residents in the facility on September 1 of the
application year, broken out by specific waiver program; and
new text end

new text begin (2) the total number of people new text end residing in the facility on deleted text begin October deleted text end new text begin September new text end 1 of the
application year.

Subd. 3.

Rate adjustment eligibility criteria.

Only facilities deleted text begin with a census of at least
80 percent elderly waiver participants deleted text end new text begin satisfying all the following conditions new text end on deleted text begin October deleted text end new text begin
September new text end 1 of the application year are eligible for designation as a disproportionate share
facility new text begin :
new text end

new text begin (1) at least 80 percent of the residents of the facility are customized living residents; and
new text end

new text begin (2) at least 50 percent of the customized living residents are elderly waiver participants new text end .

Subd. 4.

Designation as a disproportionate share facility.

new text begin (a) new text end By deleted text begin November deleted text end new text begin October new text end
15 of each application year, the commissioner must designate as a disproportionate share
facility a facility that complies with the application requirements of subdivision 2 and meets
the eligibility criteria of subdivision 3.

new text begin (b) An annual designation is effective for one rate year.
new text end

Subd. 5.

Rate adjustment; rate floor.

(a) Notwithstanding the 24-hour customized
living monthly service rate limits under section 256S.202, subdivision 2, and the component
service rates established under section 256S.201, subdivision 4, the commissioner must
establish a rate floor equal to deleted text begin $119 deleted text end new text begin $139 new text end per resident per day for 24-hour customized living
services provided new text begin to an elderly waiver participant new text end in a designated disproportionate share
facility deleted text begin for the purpose of ensuring the minimal level of staffing required to meet the health
and safety needs of elderly waiver participants deleted text end .

new text begin (b) The commissioner must apply the rate floor to the services described in paragraph
(a) provided during the rate year.
new text end

deleted text begin (b) deleted text end new text begin (c) new text end The commissioner must adjust the rate floor at least annually in the manner
described under section 256S.18, subdivisions 5 and 6.

deleted text begin (c) deleted text end new text begin (d) new text end The commissioner shall not implement the rate floor under this section if the
customized living rates established under sections 256S.21 to 256S.215 will be implemented
at 100 percent on January 1 of the year following an application year.

Subd. 6.

Budget cap disregard.

The value of the rate adjustment under this section
must not be included in an elderly waiver client's monthly case mix budget cap.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective July 1, 2022, or upon federal approval,
whichever is later, and applies to services provided on or after October 1, 2022, or on or
after the date upon which federal approval is obtained, whichever is later. The commissioner
of human services shall notify the revisor of statutes when federal approval is obtained.
new text end

Sec. 2.

Laws 2021, First Special Session chapter 7, article 17, section 14, is amended to
read:

Sec. 14. TASK FORCE ON deleted text begin ELIMINATING deleted text end SUBMINIMUM WAGES.

Subdivision 1.

Establishment; purpose.

The Task Force on deleted text begin Eliminating deleted text end Subminimum
Wages is established to develop a plan and make recommendations to deleted text begin phase out payment
of subminimum wages to people with disabilities on or before August 1, 2025 deleted text end new text begin promote
independence and increase opportunities for people with disabilities to earn competitive
wages new text end .

Subd. 2.

Definitions.

For the purposes of this section, "subminimum wage" means wages
authorized under section 14(c) of the federal Fair Labor Standards Act, Minnesota Statutes,
section 177.28, subdivision 5, or Minnesota Rules, parts 5200.0030 and 5200.0040.

Subd. 3.

Membership.

(a) The task force consists of deleted text begin 16 deleted text end new text begin 20 new text end members, appointed as
follows:

(1) the commissioner of human services or a designee;

(2) the commissioner of labor and industry or a designee;

(3) the commissioner of education or a designee;

(4) the commissioner of employment and economic development or a designee;

(5) a representative of the Department of Employment and Economic Development's
Vocational Rehabilitation Services Division appointed by the commissioner of employment
and economic development;

(6) one member appointed by the Minnesota Disability Law Center;

(7) one member appointed by The Arc of Minnesota;

(8) deleted text begin three deleted text end new text begin four new text end members who are persons with disabilities appointed by the commissioner
of human services, at least one of whom deleted text begin must be deleted text end new text begin is new text end neurodiverse, deleted text begin and deleted text end at least one of whom
deleted text begin must have deleted text end new text begin has new text end a significant physical disability new text begin , and at least one of whom at the time of the
appointment is being paid a subminimum wage new text end ;

(9) two representatives of employers authorized to pay subminimum wage and one
representative of an employer who successfully transitioned away from payment of
subminimum wages to people with disabilities, appointed by the commissioner of human
services;

(10) one member appointed by the Minnesota Organization for Habilitation and
Rehabilitation;

(11) one member appointed by ARRM; deleted text begin and
deleted text end

(12) one member appointed by the State Rehabilitation Council new text begin ; and
new text end

new text begin (13) three members who are parents or guardians of persons with disabilities appointed
by the commissioner of human services, at least one of whom is a parent or guardian of a
person who is neurodiverse, at least one of whom is a parent or guardian of a person with
a significant physical disability, and at least one of whom is a parent or guardian of a person
being paid a subminimum wage as of the date of the appointment new text end .

(b) To the extent possible, membership on the task force under paragraph (a) shall reflect
geographic parity throughout the state and representation from Black, Indigenous, and
communities of color.

Subd. 4.

Appointment deadline; first meeting; chair.

Appointing authorities must
complete member selections by January 1, 2022. The commissioner of human services shall
convene the first meeting of the task force by February 15, 2022. The task force shall select
a chair from among its members at its first meeting.

Subd. 5.

Compensation.

Members shall be compensated and may be reimbursed for
expenses as provided in Minnesota Statutes, section 15.059, subdivision 3.

Subd. 6.

Duties; plan and recommendations.

The task force shall:

(1) develop a plan to deleted text begin phase out the payment of subminimum wages to people with
disabilities by August 1, 2025 deleted text end new text begin promote independence and increase opportunities for people
with disabilities to earn competitive wages new text end ;

(2) consult with and advise the commissioner of human services on statewide plans for
deleted text begin limiting deleted text end new text begin reducing reliance on new text end subminimum wages in medical assistance home and
community-based services waivers under Minnesota Statutes, sections 256B.092 and
256B.49;

(3) engage with employees with disabilities paid subminimum wages and conduct
community education on the payment of subminimum wages to people with disabilities in
Minnesota;

(4) identify and collaborate with employees, employers, businesses, organizations,
agencies, and stakeholders deleted text begin impacted by the phase out of subminimum wage deleted text end on how to
implement the plan and create sustainable work opportunities for employees with disabilities;

(5) propose a plan to establish and evaluate benchmarks for measuring annual progress
toward deleted text begin eliminating deleted text end new text begin reducing reliance on new text end subminimum wages;

(6) propose a plan to monitor and track outcomes of employees with disabilities new text begin , including
those who transition to competitive employment new text end ;

(7) identify initiatives, investment, training, and services designed to improve wages,
reduce unemployment rates, and provide support and sustainable work opportunities for
persons with disabilities;

(8) identify benefits to the state deleted text begin in eliminating deleted text end new text begin of reducing reliance on new text end subminimum
deleted text begin wage by August 1, 2025 deleted text end new text begin wages new text end ;

(9) identify barriers to eliminating subminimum deleted text begin wage by August 1, 2025 deleted text end new text begin wages new text end , including
the cost of implementing and providing ongoing employment services, training, and support
for employees with disabilities deleted text begin and deleted text end new text begin , new text end the cost of paying minimum deleted text begin wage deleted text end new text begin wages new text end to employees
with disabilities new text begin , and the potential impact on persons with disabilities who would be unable
to find sustainable employment in the absence of a subminimum wage or who would not
choose competitive employment new text end ;

(10) make recommendations to eliminate the barriers identified in clause (9); and

(11) identify and make recommendations for sustainable financial support, funding, and
resources for deleted text begin eliminating deleted text end new text begin reducing reliance on new text end subminimum deleted text begin wage by August 1, 2025 deleted text end new text begin wages new text end .

Subd. 7.

Duties; provider reinvention grants.

(a) The commissioner of human services
shall establish a provider reinvention grant program to promote independence and increase
opportunities for people with disabilities to earn competitive wages. The commissioner
shall make the grants available to at least the following:

(1) providers of disability services under Minnesota Statutes, sections 256B.092 and
256B.49, for developing and implementing a business plan to deleted text begin shift the providers' business
models away from paying waiver participants subminimum deleted text end new text begin promote independence and
increase opportunities for people with disabilities to earn competitive new text end wages;

(2) organizations to develop peer-to-peer mentoring for people with disabilities who
have successfully transitioned to earning competitive wages;

(3) organizations to facilitate provider-to-provider mentoring to promote deleted text begin shifting away
from paying employees with disabilities a subminimum wage deleted text end new text begin independence and increase
opportunities for people with disabilities to earn competitive wages new text end ; and

(4) organizations to conduct family outreach and education on working with people with
disabilities who are transitioning from subminimum wage employment to competitive
employment.

(b) The provider reinvention grant program must be competitive. The commissioner of
human services must develop criteria for evaluating responses to requests for proposals.
Criteria for evaluating grant applications must be finalized no later than November 1, 2021.
The commissioner of human services shall administer grants in compliance with Minnesota
Statutes, sections 16B.97 and 16B.98, and related policies set forth by the Department of
Administration's Office of Grants Management.

(c) Grantees must work with the commissioner to develop their business model deleted text begin and, as
a condition of receiving grant funds, grantees must fully phase out the use of subminimum
wage by April 1, 2024, unless the grantee receives a waiver from the commissioner of
human services for a demonstrated need deleted text end new text begin to promote independence and increase opportunities
for people with disabilities to earn competitive wages new text end .

(d) Of the total amount available for provider reinvention grants, the commissioner may
award up to 25 percent of the grant funds to providers who have already successfully shifted
their business model away from paying employees with disabilities subminimum wages to
provide provider-to-provider mentoring to providers receiving a provider reinvention grant.

Subd. 8.

Report.

By February 15, 2023, the task force shall submit to the chairs and
ranking minority members of the committees and divisions in the senate and house of
representatives with jurisdiction over employment and wages and over health and human
services a report with recommendations to deleted text begin eliminate by August 1, 2025, the payment of
subminimum wage deleted text end new text begin increase opportunities for people with disabilities to earn competitive
wages new text end , and any changes to statutes, laws, or rules required to implement the recommendations
of the task force. The task force must include in the report a recommendation concerning
continuing the task force beyond its scheduled expiration.

Subd. 9.

Administrative support.

The commissioner of human services shall provide
meeting space and administrative services to the task force.

Subd. 10.

Expiration.

The task force shall conclude their duties and expire on March
31, 2024.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment. The
commissioner of human services must make the additional appointments required under
this section within 30 days following final enactment.
new text end

Sec. 3. new text begin REINSTATEMENT AND EXTENSION OF COVID-19 PROGRAM
WAIVERS AND MODIFICATIONS.
new text end

new text begin The commissioner of human services may reinstate waivers and modifications to human
services programs as described in this section that were issued by the commissioner pursuant
to the governor's Executive Order 20-12, including any amendments to the waivers and
modifications. The waivers and modifications may remain in effect until June 30, 2022,
except CV03 and CV04 may remain in effect until June 30, 2023, or until the expiration of
the United States Department of Agriculture's waiver allowing verbal signatures for the
Supplemental Nutrition Assistance Program, whichever is later. The following waivers and
modifications to human services programs may be reinstated:
new text end

new text begin (1) CV03: allowing oral or written signatures by applicants on applications for public
assistance programs;
new text end

new text begin (2) CV04: allowing oral or written permission from public assistance program participants
for the Department of Human Services to contact third parties to verify reported information;
new text end

new text begin (3) CV11: allowing video conferencing in monthly foster care visits by a child's
caseworker when there is a declaration of a federal or state emergency that prohibits or
strongly discourages person-to-person contact for public health reasons;
new text end

new text begin (4) CV23: waiving mandatory direct contact supervision requirements to allow
case-by-case decisions to permit certain individuals to work without supervision while that
individual's background studies are being processed, as permitted under federal law and
regulation, and allowing the transition from name and date of birth studies of Minnesota
records only, for both existing studies and studies that may be initiated during the transition
period, to fingerprint-based background studies to resume on a schedule established by the
commissioner and published on the department's website. Waiver provisions permitting the
return to background studies of Minnesota records only for providers who are currently
transitioned to fingerprint-based studies shall not be reinstated;
new text end

new text begin (5) CV53: allowing qualified professionals to provide required in-person oversight of
personal care assistance workers via two-way interactive telecommunications for all program
participants who receive personal care assistance services; and
new text end

new text begin (6) CV89: allowing program participants to give oral, written, or expressed approval of
documents related to long-term services and supports that typically require in-person
signatures.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment except
for clauses (5) and (6), which are effective retroactively from September 1, 2021.
new text end

Sec. 4. new text begin TEMPORARY MODIFICATIONS OF CHILD CARE CENTER STAFF;
DISTRIBUTION REQUIREMENTS.
new text end

new text begin (a) The commissioner of human services may temporarily suspend child care center
staff distribution requirements under Minnesota Rules, part 9503.0040, subpart 2, item D,
until June 30, 2022.
new text end

new text begin (b) A licensed child care center, except as allowed under Minnesota Rules, part
9503.0040, subpart 2, item B, must have at least one person qualified as a teacher on site
at all times when a child is in care at the licensed child care center. There must be a staff
person who is at least 18 years of age with each group of children, except as allowed under
Minnesota Rules, part 9503.0034, subpart 1.
new text end

new text begin (c) A licensed child care center must have a staff person on site who is responsible for
overseeing the operation of the daily activities of the program, ensuring the health and safety
of the children, and supervising staff. The on-site staff person is not required to meet the
qualifications of a director.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 5. new text begin TEMPORARY REMOTE DELIVERY OF QUALIFIED PROFESSIONAL
SERVICES.
new text end

new text begin Subdivision 1. new text end

new text begin Remote delivery of qualified professional services. new text end

new text begin (a) Notwithstanding
Minnesota Statutes, section 256B.0659, subdivision 14, paragraphs (b) and (c), for all people
who receive personal care assistance services, including people who are new to receiving
personal care assistance services or who are transferring to a new personal care assistance
provider agency, qualified professionals may evaluate the personal care assistance services
via two-way interactive telecommunication, including via telephone or Internet technology,
unless:
new text end

new text begin (1) the recipient requests in-person evaluation of the recipient's personal care assistance
services; or
new text end

new text begin (2) the recipient's care plan expressly states that the remote option described in this
section does not apply.
new text end

new text begin Subd. 2. new text end

new text begin Expiration. new text end

new text begin This section expires upon the United States Secretary of Health
and Human Services not renewing the secretary's determination that a federal public health
emergency exists as a result of the consequences of the COVID-19 pandemic.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective upon federal approval, or with federal
approval, retroactively from September 1, 2021, whichever is earlier. The commissioner of
human services shall inform the revisor of statutes when federal approval is obtained and
which effective date applies.
new text end

Sec. 6. new text begin COMMISSIONER OF HUMAN SERVICES; TEMPORARY STAFFING
POOL; APPROPRIATION.
new text end

new text begin (a) The commissioner of human services shall establish a temporary emergency staffing
pool for congregate settings experiencing staffing crises. Vendor contracts may include
retention bonuses, sign-on bonuses, and payment for hours on call. The commissioner may
pay for necessary training, travel, and lodging expenses of the temporary staff. Contracts
for temporary staffing executed under this section: (1) should minimize the recruitment
away from providers' current workforces; and (2) may not be executed with an individual
until at least 30 days since the individual was last employed in Minnesota by one of the
types of facilities listed in paragraph (g).
new text end

new text begin (b) Temporary staff, at the request of the commissioner, may be deployed to long-term
care facilities and other congregate care residential facilities and programs experiencing an
emergency staffing crisis on or after the effective date of this section. Temporary staff must
be provided at no cost to the facility or program receiving the temporary staff.
new text end

new text begin (c) Members of the temporary staffing pool under this section are not state employees.
new text end

new text begin (d) The commissioner must coordinate the activities under this section with any other
impacted state agencies, to appropriately prioritize locations to deploy contracted temporary
staff.
new text end

new text begin (e) The commissioner must give priority for deploying staff to facilities and programs
with the most significant staffing crises and where, but for this assistance, residents would
be at significant risk of injury due to the need to transfer to another facility or a hospital for
adequately staffed care.
new text end

new text begin (f) A facility or program may seek onetime assistance per setting from the temporary
staffing pool only after the facility or program has used all resources available to obtain
temporary staff but is unable to meet the facility's or program's temporary staffing needs.
A facility or program may apply for temporary staff for up to 21 days. Applicants must
submit a proposed plan for ensuring resident safety at the end of that time period.
new text end

new text begin (g) Facilities and programs eligible to obtain temporary staff from the temporary staffing
pool include:
new text end

new text begin (1) nursing facilities;
new text end

new text begin (2) assisted living facilities;
new text end

new text begin (3) intermediate care facilities for persons with developmental disabilities;
new text end

new text begin (4) adult foster care or community residential settings;
new text end

new text begin (5) licensed substance use disorder treatment facilities;
new text end

new text begin (6) unlicensed county-based substance use disorder treatment facilities;
new text end

new text begin (7) licensed facilities for adults with mental illness;
new text end

new text begin (8) licensed detoxification programs;
new text end

new text begin (9) licensed withdrawal management programs;
new text end

new text begin (10) licensed children's residential facilities;
new text end

new text begin (11) licensed child foster residence settings;
new text end

new text begin (12) unlicensed, Tribal-certified facilities that perform functions similar to the licensed
facilities listed in this paragraph;
new text end

new text begin (13) boarding care homes;
new text end

new text begin (14) board and lodging establishments serving people with disabilities or disabling
conditions;
new text end

new text begin (15) board and lodging establishments with special services;
new text end

new text begin (16) supervised living facilities;
new text end

new text begin (17) supportive housing;
new text end

new text begin (18) sober homes;
new text end

new text begin (19) community-based halfway houses for people exiting the correctional system;
new text end

new text begin (20) shelters serving people experiencing homelessness;
new text end

new text begin (21) drop-in centers for people experiencing homelessness;
new text end

new text begin (22) homeless outreach services for unsheltered individuals;
new text end

new text begin (23) shelters for people experiencing domestic violence; and
new text end

new text begin (24) temporary isolation spaces for people who test positive for COVID-19.
new text end

new text begin (h) Notwithstanding any other law to the contrary, the commissioner may allocate funding
to maintain, extend, or renew contracts for temporary staffing entered into on or after
September 1, 2020. The commissioner may also allocate funding to enter into new contracts
with eligible entities and may allocate funding for the costs needed for temporary staff
deployed in the temporary staffing pool. The commissioner may use up to 6.5 percent of
this funding for the commissioner's costs related to administration of this program.
new text end

new text begin (i) The commissioner shall seek all allowable FEMA reimbursement for the costs of this
activity.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 7. new text begin DIRECTION TO THE COMMISSIONER OF HUMAN SERVICES;
PARTIAL YEAR IMPLEMENTATION OF DISPROPORTIONATE SHARE RATE
ADJUSTMENTS.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin For the purposes of this section, the definitions in Minnesota
Statutes, section 256S.205, apply.
new text end

new text begin Subd. 2. new text end

new text begin Partial year implementation. new text end

new text begin (a) Notwithstanding the provisions of Minnesota
Statutes, section 256S.205, subdivisions 2 to 5, regarding application dates, eligibility dates,
designation dates, and payment adjustment dates, during the first partial year of
implementation of the amendments in this act to Minnesota Statutes, section 256S.205, a
facility may apply between July 1, 2022, and July 31, 2022, to be designated a
disproportionate share facility on the basis of the conditions outlined in Minnesota Statutes,
section 256S.205, subdivision 3, as of July 1, 2022. The commissioner shall designate
disproportionate share facilities by August 15, 2022. Between October 1, 2022, and December
31, 2022, the commissioner shall apply the rate floor under Minnesota Statutes, section
256S.205, as amended in this act, to eligible customized living services provided in
disproportionate share facilities between those dates.
new text end

new text begin Subd. 3. new text end

new text begin Rate year 2023. new text end

new text begin Beginning September 1, 2022, the timelines and dates described
in Minnesota Statutes, section 256S.205, subdivisions 2 to 4, apply for the purposes of rate
year 2023.
new text end

new text begin Subd. 4. new text end

new text begin Treatment of prior rate adjustments. new text end

new text begin (a) The commissioner shall apply rate
adjustments required under Minnesota Statutes 2021 Supplement, section 256S.205, until
September 30, 2022. Beginning October 1, 2022, the commissioner shall remove all rate
adjustments required under Minnesota Statutes 2021 Supplement, section 256S.205.
new text end

new text begin (b) A disproportionate share facility receiving a rate adjustment under Minnesota Statutes
2021 Supplement, section 256S.205, as of July 1, 2022, may apply for an adjustment under
this section.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin (a) Subdivisions 1 to 3 are effective July 1, 2022, or upon federal
approval, whichever is later, and apply to services provided on or after October 1, 2022, or
on or after the date upon which federal approval is obtained, whichever is later. The
commissioner of human services shall notify the revisor of statutes when federal approval
is obtained.
new text end

new text begin (b) Subdivision 4 is effective July 1, 2022.
new text end