SF 1229

1st Engrossment - 86th Legislature (2009 - 2010) Posted on 02/09/2010 02:19am

A bill for an act
relating to human services; modifying personal care assistance services;
amending Minnesota Statutes 2008, sections 144A.44, subdivision 2; 256B.0655,
subdivisions 1b, 1g, 2, 3, 7; 626.556, subdivision 3c, by adding a subdivision.

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

Section 1.

Minnesota Statutes 2008, section 144A.44, subdivision 2, is amended to
read:

Subd. 2.

Interpretation and enforcement of rights.

These rights are established
for the benefit of persons who receive home care services. "Home care services" means
home care services as defined in section 144A.43, subdivision 3 new text begin , and unlicensed personal
care assistant services new text end . A home care provider may not require a person to surrender these
rights as a condition of receiving services. A guardian or conservator or, when there is
no guardian or conservator, a designated person, may seek to enforce these rights. This
statement of rights does not replace or diminish other rights and liberties that may exist
relative to persons receiving home care services, persons providing home care services,
or providers licensed under Laws 1987, chapter 378. A copy of these rights must be
provided to an individual at the time home care services new text begin , including personal care assistant
services, new text end are initiated. The copy shall also contain the address and phone number of the
Office of Health Facility Complaints and the Office of Ombudsman for Long-Term Care
and a brief statement describing how to file a complaint with these offices. Information
about how to contact the Office of Ombudsman for Long-Term Care shall be included in
notices of change in client fees and in notices where home care providers initiate transfer
or discontinuation of services.

Sec. 2.

Minnesota Statutes 2008, section 256B.0655, subdivision 1b, is amended to
read:

Subd. 1b.

Assessment.

new text begin (a) new text end "Assessment" means a review and evaluation of a
recipient's need for home care services conducted in person.

new text begin (b) new text end Assessments for personal care assistant services shall be conducted by the county
public health nurse or a certified public health nurse under contract with the county.
new text begin Assessors must meet all training requirements established by the commissioner.
new text end

new text begin (c) new text end A face-to-face assessment must include: documentation of health status,
determination of need, evaluation of service effectiveness, identification of appropriate
services, service plan development or modification, coordination of services, referrals and
follow-up to appropriate payers and community resources, completion of required reports,
recommendation of service authorization, and consumer education.

new text begin (d) new text end Once the need for personal care assistant services is determined under this
section or sections 256B.0651, 256B.0653, 256B.0654, and 256B.0656, the county public
health nurse or certified public health nurse under contract with the county is responsible
for communicating this recommendation to the commissioner and the recipient.

new text begin (e) new text end A face-to-face assessment for personal care assistant services is conducted
on those recipients who have never had a county public health nurse assessment. A
face-to-face assessment must occur at least annually or when there is a significant change
in the recipient's condition or when there is a change in the need for personal care assistant
services. A service update may substitute for the annual face-to-face assessment when
there is not a significant change in recipient condition or a change in the need for personal
care assistant service. A service update may be completed by telephone, used when there
is no need for an increase in personal care assistant services, and used for two consecutive
assessments if followed by a face-to-face assessment. A service update must be completed
on a form approved by the commissioner. A service update or review for temporary
increase includes a review of initial baseline data, evaluation of service effectiveness,
redetermination of service need, modification of service plan and appropriate referrals,
update of initial forms, obtaining service authorization, and on going consumer education.
Assessments must be completed on forms provided by the commissioner within 30 days
of a request for home care services by a recipient or responsible party or personal care
provider agency.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective January 1, 2010.
new text end

Sec. 3.

Minnesota Statutes 2008, section 256B.0655, subdivision 1g, is amended to
read:

Subd. 1g.

Personal care provider organization.

"Personal care provider
organization" means an organization enrolled to provide personal care assistant services
under the medical assistance program that complies with the following:

(1) owners who have a five percent interest or more, and managerial officials are
subject to a background study as provided in chapter 245C. This applies to currently
enrolled personal care provider organizations and those agencies seeking enrollment as
a personal care provider organization. An organization will be barred from enrollment
if an owner or managerial official of the organization new text begin or a predecessor organization new text end has
been convicted of a crime specified in chapter 245C, or a comparable crime in another
jurisdiction, unless the owner or managerial official meets the reconsideration criteria
specified in chapter 245C new text begin , or has previously documented violations of federal or state
laws or regulations new text end ;

(2) the organization must maintain a surety bond and liability insurance throughout
the duration of enrollment and provides proof thereof. The insurer must notify the
Department of Human Services of the cancellation or lapse of policy and the organization
must maintain documentation of services as specified in Minnesota Rules, part 9505.2175,
subpart 7, as well as evidence of compliance with personal care assistant training
requirements;

(3) the organization must maintain documentation and a recipient file and satisfy
communication requirements in section 256B.0655, subdivision 2, paragraph (f); deleted text begin and
deleted text end

(4) new text begin the organization must comply with comprehensive training requirements on
personal care assistant standards and practices as established by the commissioner;
new text end

new text begin (5) each qualified professional employed by the organization must be subject to a
background study as provided in chapter 245C and training requirements established
by the commissioner; and
new text end

new text begin (6) new text end the organization must comply with all laws and rules governing the provision of
personal care assistant services.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective January 1, 2010.
new text end

Sec. 4.

Minnesota Statutes 2008, section 256B.0655, subdivision 2, is amended to read:

Subd. 2.

Personal care assistant services.

(a) The personal care assistant services
that are eligible for payment are services and supports furnished to an individual, as
needed, to assist in accomplishing activities of daily living; instrumental activities of daily
living; health-related functions through hands-on assistance, supervision, and cuing; and
redirection and intervention for behavior including observation and monitoring.

(b) Payment for services will be made within the limits approved using the
prior authorized process established in subdivisions 3 and 4, and sections 256B.0651,
subdivisions 4 to 12, and 256B.0654, subdivision 2.

(c) The amount and type of services authorized shall be based on an assessment of
the recipient's needs in these areas:

(1) bowel and bladder care;

(2) skin care to maintain the health of the skin;

(3) repetitive maintenance range of motion, muscle strengthening exercises, and
other tasks specific to maintaining a recipient's optimal level of function;

(4) respiratory assistance;

(5) transfers and ambulation;

(6) bathing, grooming, and hair washing necessary for personal hygiene;

(7) turning and positioning;

(8) assistance with furnishing medication that is self-administered;

(9) application and maintenance of prosthetics and orthotics;

(10) cleaning medical equipment;

(11) dressing or undressing;

(12) assistance with eating and meal preparation and necessary grocery shopping;

(13) accompanying a recipient to obtain medical diagnosis or treatment;

(14) assisting, monitoring, or prompting the recipient to complete the services in
clauses (1) to (13);

(15) redirection, monitoring, and observation that are medically necessary and an
integral part of completing the personal care assistant services described in clauses (1) to
(14);

(16) redirection and intervention for behavior, including observation and monitoring;

(17) interventions for seizure disorders, including monitoring and observation if the
recipient has had a seizure that requires intervention within the past three months;

(18) tracheostomy suctioning using a clean procedure if the procedure is properly
delegated by a registered nurse. Before this procedure can be delegated to a personal
care assistant, a registered nurse must determine that the tracheostomy suctioning can be
accomplished utilizing a clean rather than a sterile procedure and must ensure that the
personal care assistant has been taught the proper procedure; and

(19) incidental household services that are an integral part of a personal care service
described in clauses (1) to (18).

For purposes of this subdivision, monitoring and observation means watching for outward
visible signs that are likely to occur and for which there is a covered personal care service
or an appropriate personal care intervention. For purposes of this subdivision, a clean
procedure refers to a procedure that reduces the numbers of microorganisms or prevents or
reduces the transmission of microorganisms from one person or place to another. A clean
procedure may be used beginning 14 days after insertion.

(d) The personal care assistant services that are not eligible for payment are the
following:

(1) services provided without a physician's statement of need as required by section
256B.0625, subdivision 19c, and included in the personal care provider agency's file for
the recipient;

(2) assessments by personal care assistant provider organizations or by independently
enrolled registered nurses;

(3) services that are not in the service plan;

(4) services provided by the recipient's spouse, legal guardian for an adult or child
recipient, or parent of a recipient under age 18;

(5) services provided by a foster care provider of a recipient who cannot direct the
recipient's own care, unless monitored by a county or state case manager under section
256B.0625, subdivision 19a;

(6) services provided by the residential or program license holder in a residence for
more than four persons;

(7) services that are the responsibility of a residential or program license holder
under the terms of a service agreement and administrative rules;

(8) sterile procedures;

(9) injections of fluids into veins, muscles, or skin;

(10) homemaker services that are not an integral part of a personal care assistant
services;

(11) home maintenance or chore services;

(12) services not specified under paragraph (a); and

(13) services not authorized by the commissioner or the commissioner's designee.

(e) The recipient or responsible party deleted text begin may choose to supervise the personal care
assistant or to deleted text end new text begin must new text end have a qualified professional, as defined in section 256B.0625,
subdivision 19c, deleted text begin provide the supervision deleted text end new text begin supervise the personal care assistant according to
the service plan new text end . As required under section 256B.0625, subdivision 19c, the county public
health nurse, as a part of the assessment, will assist the recipient or responsible party to
identify the most appropriate person to provide supervision of the personal care assistant.
Health-related delegated tasks performed by the personal care assistant will be under the
supervision of a qualified professional or the direction of the recipient's physician. deleted text begin If the
recipient has a qualified professional, Minnesota Rules, part 9505.0335, subpart 4, applies. deleted text end new text begin
The personal care assistant may not also act as a recipient's qualified professional.
new text end

(f) In order to be paid for personal care assistant services, personal care provider
organizations, and personal care assistant choice providers are required:

(1) to maintain a recipient file for each recipient for whom services are being billed
that contains:

(i) the current physician's statement of need as required by section 256B.0625,
subdivision 19c;

(ii) the service plan, including the monthly authorized hours, or flexible use plan;

(iii) the care plan, signed by the recipient and the qualified professional, if required
or designated, detailing the personal care assistant services to be provided;

(iv) documentation, on a form approved by the commissioner and signed by the
personal care assistant, specifying the day, month, year, arrival, and departure times, with
AM and PM notation, for all services provided to the recipient. The form must include a
notice that it is a federal crime to provide false information on personal care service
billings for medical assistance payment; and

(v) all notices to the recipient regarding personal care service use exceeding
authorized hours; and

(2) to communicate, by telephone if available, and in writing, with the recipient or
the responsible party about the schedule for use of authorized hours and to notify the
recipient and the county public health nurse in advance and as soon as possible, on a form
approved by the commissioner, if the monthly number of hours authorized is likely to be
exceeded for the month.

(g) The commissioner shall establish an ongoing audit process for potential fraud
and abuse for personal care assistant services. The audit process must include deleted text begin , at a
minimum, deleted text end a requirement that the documentation of hours of care provided be on a form
approved by the commissioner and include the personal care assistant's signature attesting
that the hours shown on each bill were provided by the personal care assistant on the
dates and the times specified new text begin and regular data analysis of paid claims to identify and
recoup improper payments new text end .

Sec. 5.

Minnesota Statutes 2008, section 256B.0655, subdivision 3, is amended to read:

Subd. 3.

Assessment and service plan.

Assessments under subdivision 1b
and sections 256B.0651, subdivision 1, paragraph (b), and 256B.0654, subdivision 1,
paragraph (a), shall be conducted initially, and at least annually thereafter, in person
with the recipient and result in a completed service plan using forms specified by
the commissioner. A personal care provider agency must use a form approved by
the commissioner to request a county public health nurse to conduct a personal care
assistant services assessment. When requesting a reassessment, the personal care provider
agency must notify the county and the recipient at least 60 days prior to the end of the
current prior authorization for personal care assistant services. The recipient notice
shall include information on the recipient's appeal rights. Within 30 days of recipient
or responsible party or personal care assistant provider agency request for home care
services, the assessment, the service plan, and other information necessary to determine
medical necessity such as diagnostic or testing information, social or medical histories,
and hospital or facility discharge summaries shall be submitted to the commissioner. new text begin
The assessment and the service plan shall be provided electronically or by mail to the
recipient and the chosen provider agency by the assessing agency when submitted to the
commissioner. new text end Notwithstanding the provisions of subdivision 8, the commissioner shall
maximize federal financial participation to pay for public health nurse assessments for
personal care services. For personal care assistant services:

(1) The amount and type of service authorized based upon the assessment and
service plan will follow the recipient if the recipient chooses to change providers new text begin and if
the recipient enrolls or disenrolls from a managed care health plan under section 256B.69 new text end .

(2) If the recipient's need changes, the recipient's provider may assess the need for
a change in service authorization and request the change from the county public health
nurse. The request must be made on a form approved by the commissioner. Within 30
days of the request, the public health nurse will determine whether to request the change
in services based upon the provider assessment, or conduct a home visit to assess the need
and determine whether the change is appropriate. If the change in service need is due to
a change in medical condition, a new physician's statement of need required by section
256B.0625, subdivision 19c, must be obtained.

(3) To continue to receive personal care assistant services after the first year,
the recipient or the responsible party, in conjunction with the public health nurse,
may complete a service update on forms developed by the commissioner according to
criteria and procedures in subdivisions 1a to 1i and sections 256B.0651, subdivision 1;
256B.0653; and 256B.0654, subdivision 1.

Sec. 6.

Minnesota Statutes 2008, section 256B.0655, subdivision 7, is amended to read:

Subd. 7.

new text begin Personal care assistant choice and new text end fiscal intermediary option.

(a) The
commissioner may allow a recipient of personal care assistant services to use a fiscal
intermediary to assist the recipient in paying and accounting for medically necessary
covered personal care assistant services authorized in subdivision 2 and within the
payment parameters of subdivision 4. Unless otherwise provided in this subdivision, all
other statutory and regulatory provisions relating to personal care assistant services apply
to a recipient using the fiscal intermediary option.

(b) The recipient or responsible party shall:

(1) recruit, hire, and terminate a qualified professional deleted text begin , if a qualified professional is
requested by the recipient or responsible party deleted text end ;

(2) verify and document the credentials of the qualified professional deleted text begin , if a qualified
professional is requested by the recipient or responsible party deleted text end ;

(3) develop a service plan based on physician orders and public health nurse
assessment with the assistance of a qualified professional deleted text begin , if a qualified professional is
requested by the recipient or responsible party, deleted text end that addresses the health and safety of
the recipient;

(4) recruit, hire, and terminate the personal care assistant;

(5) orient and train the personal care assistant with assistance as needed from the
qualified professional;

(6) supervise and evaluate the personal care assistant with assistance as needed from
the recipient's physician or the qualified professional;

(7) monitor and verify in writing and report to the fiscal intermediary the number of
hours worked by the personal care assistant and the qualified professional; and

(8) enter into a written agreement, as specified in paragraph (f).

(c) The duties of the fiscal intermediary shall be to:

(1) bill the medical assistance program for personal care assistant and qualified
professional services;

(2) request and secure background checks on personal care assistants and qualified
professionals according to chapter 245C;

(3) pay the personal care assistant and qualified professional based on actual hours
of services provided;

(4) withhold and pay all applicable federal and state taxes;

(5) verify and keep records of hours worked by the personal care assistant and
qualified professional;

(6) make the arrangements and pay unemployment insurance, taxes, workers'
compensation, liability insurance, and other benefits, if any;

(7) enroll in the medical assistance program as a fiscal intermediary; and

(8) enter into a written agreement as specified in paragraph (f) before services are
provided.

(d) The fiscal intermediary:

(1) may not be related to the recipient, qualified professional, or the personal care
assistant;

(2) must ensure arm's-length transactions with the recipient and personal care
assistant; and

(3) shall be considered a joint employer of the personal care assistant and qualified
professional to the extent specified in this section and sections 256B.0651, 256B.0653,
256B.0654, and 256B.0656.

The fiscal intermediary or owners of the entity that provides fiscal intermediary
services under this subdivision must pass a criminal background check.

new text begin The fiscal intermediary is financially liable for any improper payments made under
this subdivision.
new text end

(e) deleted text begin If the recipient or responsible party requests a qualified professional, deleted text end The
qualified professional providing assistance to the recipient shall meet the qualifications
specified in section 256B.0625, subdivision 19c. The qualified professional shall assist
the recipient in developing and revising a plan to meet the recipient's needs, as assessed
by the public health nurse. In performing this function, the qualified professional must
visit the recipient in the recipient's home at least once annually. The qualified professional
must report any suspected abuse, neglect, or financial exploitation of the recipient to the
appropriate authorities.

(f) The fiscal intermediary, recipient or responsible party, personal care assistant, and
qualified professional shall enter into a written agreement before services are started. The
agreement shall include:

(1) the duties of the recipient, qualified professional, personal care assistant, and
fiscal agent based on paragraphs (a) to (e);

(2) the salary and benefits for the personal care assistant and the qualified
professional;

(3) the administrative fee of the fiscal intermediary and services paid for with that
fee, including background check fees;

(4) procedures to respond to billing or payment complaints; and

(5) procedures for hiring and terminating the personal care assistant and the qualified
professional.

(g) The rates paid for personal care assistant services, shared care services, qualified
professional services, and fiscal intermediary services under this subdivision shall be the
same rates paid for personal care assistant services and qualified professional services
under section 256B.0651, subdivision 2, respectively. Except for the administrative fee of
the fiscal intermediary specified in paragraph (f), the remainder of the rates paid to the
fiscal intermediary must be used to pay for the salary and benefits for the personal care
assistant or the qualified professional.

(h) As part of the assessment defined in subdivision 1b, the following conditions
must be met to use or continue use of a fiscal intermediary:

(1) the recipient must be able to direct the recipient's own care, or the responsible
party for the recipient must be readily available to direct the care of the personal care
assistant;

(2) the recipient or responsible party must be knowledgeable of the health care needs
of the recipient and be able to effectively communicate those needs;

(3) a face-to-face assessment must be conducted by the local county public health
nurse at least annually, or when there is a significant change in the recipient's condition
or change in the need for personal care assistant services;

(4) recipients who choose to use the shared care option as specified in subdivision 5
must utilize the same fiscal intermediary; and

(5) parties must be in compliance with the written agreement specified in paragraph
(f).

(i) The commissioner shall deny, revoke, or suspend the authorization to use the
fiscal intermediary option if:

(1) it has been determined by the qualified professional or local county public health
nurse that the use of this option jeopardizes the recipient's health and safety;

(2) the parties have failed to comply with the written agreement specified in
paragraph (f); or

(3) the use of the option has led to abusive or fraudulent billing for personal care
assistant services.

The recipient or responsible party may appeal the commissioner's action according
to section 256.045. The denial, revocation, or suspension to use the fiscal intermediary
option shall not affect the recipient's authorized level of personal care assistant services
as determined in subdivision 4.

Sec. 7.

Minnesota Statutes 2008, section 626.556, subdivision 3c, is amended to read:

Subd. 3c.

Local welfare agency, Department of Human Services or Department
of Health responsible for assessing or investigating reports of maltreatment.

(a)
The county local welfare agency is the agency responsible for assessing or investigating
allegations of maltreatment in child foster care, family child care, and legally unlicensed
child care and in juvenile correctional facilities licensed under section 241.021 located in
the local welfare agency's county.

(b) The Department of Human Services is the agency responsible for assessing or
investigating allegations of maltreatment new text begin in unlicensed personal care assistant provider
organizations providing services and receiving reimbursements under chapter 256B and new text end in
facilities licensed under chapters 245A and 245B, except for child foster care and family
child care.

(c) The Department of Health is the agency responsible for assessing or investigating
allegations of child maltreatment in facilities licensed under sections 144.50 to 144.58, new text begin
and 144A.46, new text end and in unlicensed home health care.

(d) The commissioners of human services, public safety, and education must
jointly submit a written report by January 15, 2007, to the education policy and finance
committees of the legislature recommending the most efficient and effective allocation
of agency responsibility for assessing or investigating reports of maltreatment and must
specifically address allegations of maltreatment that currently are not the responsibility
of a designated agency.

Sec. 8.

Minnesota Statutes 2008, section 626.556, is amended by adding a subdivision
to read:

new text begin Subd. 16. new text end

new text begin Abuse prevention plan. new text end

new text begin Home health care agencies and personal care
assistant services providers shall develop an individual abuse prevention plan for each
child receiving services from them. The plan shall contain an individualized assessment of:
new text end

new text begin (1) the child's susceptibility to abuse by other individuals, including other children;
new text end

new text begin (2) the child's risk of abusing other children; and
new text end

new text begin (3) statements of the specific measures to be taken to minimize the risk of abuse
to that child and other children.
new text end

new text begin For the purposes of this subdivision, the term "abuse" includes self-abuse.
new text end

Sec. 9. new text begin DIRECTION TO COMMISSIONER; PERSONAL CARE ASSISTANT
ASSESSMENTS; PROVIDER TRAINING; COVERED SERVICES.
new text end

new text begin (a) The commissioner of human services must implement mandatory training
requirements for persons conducting assessments for personal care assistant services,
develop additional guidance to help assessors determine the personal care assistant service
needs of persons with behavior issues, and develop a process for periodically reviewing
samples of personal care assistant assessments for the purpose of ensuring a reasonable
level of consistency by January 1, 2010.
new text end

new text begin (b) The commissioner of human services must develop comprehensive training on
personal care assistant standards and practices, including information on which personal
care assistant services are eligible for payment and which services are not eligible for
payment, for personal care provider organizations, personal care assistants, recipients,
guardians, responsible parties, and qualified professionals by January 1, 2010.
new text end

new text begin (c) The commissioner of human services shall ensure that the Medicaid Management
Information System contains identifiable information on whether recipients are using the
personal care assistant choice fiscal intermediary option.
new text end

new text begin (d) The commissioner of human services must report to the legislative committees
with jurisdiction over health and human services policy and finance by January 1, 2010,
on the training developed and delivered for all types of participants in the personal
care assistant program, audit and financial integrity measures and results, information
developed for consumers and responsible parties, and quality assurance measures and
results.
new text end