SF 3128

as introduced - 89th Legislature (2015 - 2016) Posted on 03/24/2016 09:13am

A bill for an act
relating to human services; requiring providers of residential care services to meet
the home and community-based services standards; amending Minnesota Statutes
2015 Supplement, sections 245A.03, subdivision 2; 245D.03, subdivision 1.

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

Section 1.

Minnesota Statutes 2015 Supplement, section 245A.03, subdivision 2,
is amended to read:

Subd. 2.

Exclusion from licensure.

(a) This chapter does not apply to:

(1) residential or nonresidential programs that are provided to a person by an
individual who is related unless the residential program is a child foster care placement
made by a local social services agency or a licensed child-placing agency, except as
provided in subdivision 2a;

(2) nonresidential programs that are provided by an unrelated individual to persons
from a single related family;

(3) residential or nonresidential programs that are provided to adults who do
not abuse chemicals or who do not have a chemical dependency, a mental illness, a
developmental disability, a functional impairment, or a physical disability;

(4) sheltered workshops or work activity programs that are certified by the
commissioner of employment and economic development;

(5) programs operated by a public school for children 33 months or older;

(6) nonresidential programs primarily for children that provide care or supervision
for periods of less than three hours a day while the child's parent or legal guardian is in
the same building as the nonresidential program or present within another building that is
directly contiguous to the building in which the nonresidential program is located;

(7) nursing homes or hospitals licensed by the commissioner of health except as
specified under section 245A.02;

(8) board and lodge facilities licensed by the commissioner of health that do not
provide children's residential services under Minnesota Rules, chapter 2960, mental health
or chemical dependency treatment new text begin , or residential care services as defined under the
community alternatives for disabled individuals, brain injury, and elderly waiver plans
provided in a board and lodging establishment that is registered to provide supportive or
health supervision services under section 157.17 new text end ;

(9) homes providing programs for persons placed by a county or a licensed agency
for legal adoption, unless the adoption is not completed within two years;

(10) programs licensed by the commissioner of corrections;

(11) recreation programs for children or adults that are operated or approved by a park
and recreation board whose primary purpose is to provide social and recreational activities;

(12) programs operated by a school as defined in section 120A.22, subdivision 4;
YMCA as defined in section 315.44; YWCA as defined in section 315.44; or JCC as
defined in section 315.51, whose primary purpose is to provide child care or services to
school-age children;

(13) Head Start nonresidential programs which operate for less than 45 days in
each calendar year;

(14) noncertified boarding care homes unless they provide services for five or more
persons whose primary diagnosis is mental illness or a developmental disability;

(15) programs for children such as scouting, boys clubs, girls clubs, and sports and
art programs, and nonresidential programs for children provided for a cumulative total of
less than 30 days in any 12-month period;

(16) residential programs for persons with mental illness, that are located in hospitals;

(17) the religious instruction of school-age children; Sabbath or Sunday schools; or
the congregate care of children by a church, congregation, or religious society during the
period used by the church, congregation, or religious society for its regular worship;

(18) camps licensed by the commissioner of health under Minnesota Rules, chapter
4630;

(19) mental health outpatient services for adults with mental illness or children
with emotional disturbance;

(20) residential programs serving school-age children whose sole purpose is cultural
or educational exchange, until the commissioner adopts appropriate rules;

(21) community support services programs as defined in section 245.462, subdivision
6, and family community support services as defined in section 245.4871, subdivision 17;

(22) the placement of a child by a birth parent or legal guardian in a preadoptive
home for purposes of adoption as authorized by section 259.47;

(23) settings registered under chapter 144D which provide home care services
licensed by the commissioner of health to fewer than seven adults;

(24) chemical dependency or substance abuse treatment activities of licensed
professionals in private practice as defined in Minnesota Rules, part 9530.6405, subpart
15, when the treatment activities are not paid for by the consolidated chemical dependency
treatment fund;

(25) consumer-directed community support service funded under the Medicaid
waiver for persons with developmental disabilities when the individual who provided
the service is:

(i) the same individual who is the direct payee of these specific waiver funds or paid
by a fiscal agent, fiscal intermediary, or employer of record; and

(ii) not otherwise under the control of a residential or nonresidential program that is
required to be licensed under this chapter when providing the service;

(26) a program serving only children who are age 33 months or older, that is
operated by a nonpublic school, for no more than four hours per day per child, with no
more than 20 children at any one time, and that is accredited by:

(i) an accrediting agency that is formally recognized by the commissioner of
education as a nonpublic school accrediting organization; or

(ii) an accrediting agency that requires background studies and that receives and
investigates complaints about the services provided.

A program that asserts its exemption from licensure under item (ii) shall, upon
request from the commissioner, provide the commissioner with documentation from the
accrediting agency that verifies: that the accreditation is current; that the accrediting
agency investigates complaints about services; and that the accrediting agency's standards
require background studies on all people providing direct contact services; or

(27) a program operated by a nonprofit organization incorporated in Minnesota or
another state that serves youth in kindergarten through grade 12; provides structured,
supervised youth development activities; and has learning opportunities take place before
or after school, on weekends, or during the summer or other seasonal breaks in the school
calendar. A program exempt under this clause is not eligible for child care assistance
under chapter 119B. A program exempt under this clause must:

(i) have a director or supervisor on site who is responsible for overseeing written
policies relating to the management and control of the daily activities of the program,
ensuring the health and safety of program participants, and supervising staff and volunteers;

(ii) have obtained written consent from a parent or legal guardian for each youth
participating in activities at the site; and

(iii) have provided written notice to a parent or legal guardian for each youth at the
site that the program is not licensed or supervised by the state of Minnesota and is not
eligible to receive child care assistance payments.

(b) For purposes of paragraph (a), clause (6), a building is directly contiguous to a
building in which a nonresidential program is located if it shares a common wall with the
building in which the nonresidential program is located or is attached to that building by
skyway, tunnel, atrium, or common roof.

(c) Except for the home and community-based services identified in section
245D.03, subdivision 1, nothing in this chapter shall be construed to require licensure for
any services provided and funded according to an approved federal waiver plan where
licensure is specifically identified as not being a condition for the services and funding.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective upon federal approval. The
commissioner of human services shall notify the revisor of statutes when federal approval
is obtained.
new text end

Sec. 2.

Minnesota Statutes 2015 Supplement, section 245D.03, subdivision 1, is
amended to read:

Subdivision 1.

Applicability.

(a) The commissioner shall regulate the provision of
home and community-based services to persons with disabilities and persons age 65 and
older pursuant to this chapter. The licensing standards in this chapter govern the provision
of basic support services and intensive support services.

(b) Basic support services provide the level of assistance, supervision, and care that
is necessary to ensure the health and welfare of the person and do not include services that
are specifically directed toward the training, treatment, habilitation, or rehabilitation of
the person. Basic support services include:

(1) in-home and out-of-home respite care services as defined in section 245A.02,
subdivision 15, and under the brain injury, community alternative care, community access
for disability inclusion, developmental disability, and elderly waiver plans, excluding
out-of-home respite care provided to children in a family child foster care home licensed
under Minnesota Rules, parts 2960.3000 to 2960.3100, when the child foster care license
holder complies with the requirements under section 245D.06, subdivisions 5, 6, 7, and
8, or successor provisions; and section 245D.061 or successor provisions, which must
be stipulated in the statement of intended use required under Minnesota Rules, part
2960.3000, subpart 4;

(2) adult companion services as defined under the brain injury, community access for
disability inclusion, and elderly waiver plans, excluding adult companion services provided
under the Corporation for National and Community Services Senior Companion Program
established under the Domestic Volunteer Service Act of 1973, Public Law 98-288;

(3) personal support as defined under the developmental disability waiver plan;

(4) 24-hour emergency assistance, personal emergency response as defined under
the community access for disability inclusion and developmental disability waiver plans;

(5) night supervision services as defined under the brain injury waiver plan; and

(6) homemaker services as defined under the community access for disability
inclusion, brain injury, community alternative care, developmental disability, and elderly
waiver plans, excluding providers licensed by the Department of Health under chapter
144A and those providers providing cleaning services only.

(c) Intensive support services provide assistance, supervision, and care that is
necessary to ensure the health and welfare of the person and services specifically directed
toward the training, habilitation, or rehabilitation of the person. Intensive support services
include:

(1) intervention services, including:

(i) behavioral support services as defined under the brain injury and community
access for disability inclusion waiver plans;

(ii) in-home or out-of-home crisis respite services as defined under the developmental
disability waiver plan; and

(iii) specialist services as defined under the current developmental disability waiver
plan;

(2) in-home support services, including:

(i) in-home family support and supported living services as defined under the
developmental disability waiver plan;

(ii) independent living services training as defined under the brain injury and
community access for disability inclusion waiver plans; and

(iii) semi-independent living services;

(3) residential supports and services, including:

(i) supported living services as defined under the developmental disability waiver
plan provided in a family or corporate child foster care residence, a family adult foster
care residence, a community residential setting, or a supervised living facility;

(ii) foster care services as defined in the brain injury, community alternative care,
and community access for disability inclusion waiver plans provided in a family or
corporate child foster care residence, a family adult foster care residence, or a community
residential setting; deleted text begin and
deleted text end

(iii) residential services provided to more than four persons with developmental
disabilities in a supervised living facility, including ICFs/DD; new text begin and
new text end

new text begin (iv) residential care services as defined under the community alternatives for
disabled individuals, brain injury, and elderly waiver plans provided in a board and
lodging establishment that is registered to provide supportive or health supervision
services under section 157.17;
new text end

(4) day services, including:

(i) structured day services as defined under the brain injury waiver plan;

(ii) day training and habilitation services under sections 252.41 to 252.46, and as
defined under the developmental disability waiver plan; and

(iii) prevocational services as defined under the brain injury and community access
for disability inclusion waiver plans; and

(5) supported employment as defined under the brain injury, developmental
disability, and community access for disability inclusion waiver plans.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective upon federal approval. The
commissioner of human services shall notify the revisor of statutes when federal approval
is obtained.
new text end

Sec. 3. new text begin DIRECTION TO THE COMMISSIONER; SUBMISSION OF WAIVER
AMENDMENTS.
new text end

new text begin The commissioner of human services shall submit necessary waiver amendments
to the Centers for Medicare and Medicaid Services to add the licensing standards under
Minnesota Statutes, chapter 245D, to the provider qualifications for residential care
services. The commissioner shall submit the necessary waiver amendments by October
1, 2016.
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. 4. new text begin DIRECTION TO THE COMMISSIONER; CONTINUATION OF
RESIDENTIAL CARE SERVICES.
new text end

new text begin (a) The commissioner of human services shall not end or discontinue new
authorizations for residential care services under the brain injury, community alternatives
for disabled individuals, and elderly waivers, unless federal approval of the waiver
amendment adding licensure under Minnesota Statutes, chapter 245D, to the provider
qualifications for residential care services is denied.
new text end

new text begin (b) Upon federal approval of the waiver amendment adding licensure under
Minnesota Statutes, chapter 245D, to the provider qualifications for residential care
services, the commissioner of human services shall continue to authorize and continue
to allow residential care as a service under the brain injury, community alternatives
for disabled individuals, and elderly waivers. Nothing in this section requires the
commissioner of human services to authorize or allow the provision of residential
care services after March 17, 2019, in any setting that fails to meet the home and
community-based setting requirements.
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