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SF 2934

1st Engrossment - 86th Legislature (2009 - 2010) Posted on 03/24/2010 01:42pm

KEY: stricken = removed, old language.
underscored = added, new language.

Current Version - 1st Engrossment

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A bill for an act
relating to human services; modifying personal care assistant services;
amending Minnesota Statutes 2008, sections 144A.071, subdivision 4b;
144A.161, subdivision 1a; 256B.0911, subdivision 4d; Minnesota Statutes 2009
Supplement, sections 256B.0653, subdivision 3; 256B.0659, subdivisions 1, 3, 4,
11, 13, 14, 18, 19, 20, 21, 27, 30; 256B.0911, subdivisions 1a, 2b, 3a.

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

Section 1.

Minnesota Statutes 2008, section 144A.071, subdivision 4b, is amended to
read:


Subd. 4b.

Licensed beds on layaway status.

A licensed and certified nursing
facility may lay away, upon prior written notice to the commissioner of health, deleted text begin up to 50
percent of its
deleted text end licensed and certified beds. A nursing facility may not discharge a resident
in order to lay away a bed. Notice to the commissioner shall be given 60 days prior
to the effective date of the layaway. Beds on layaway shall have the same status as
voluntarily delicensed and decertified beds and shall not be subject to license fees and
license surcharge fees. In addition, beds on layaway may be removed from layaway at any
time on or after one year after the effective date of layaway in the facility of origin, with a
60-day notice to the commissioner. A nursing facility that removes beds from layaway
may not place beds on layaway status for one year after the effective date of the removal
from layaway. The commissioner may approve the immediate removal of beds from
layaway if necessary to provide access to those nursing home beds to residents relocated
from other nursing homes due to emergency situations or closure. In the event approval
is granted, the one-year restriction on placing beds on layaway after a removal of beds
from layaway shall not apply. Beds may remain on layaway for up to deleted text begin fivedeleted text end new text begin tennew text end years. The
commissioner may approve placing and removing beds on layaway at any time during
renovation or construction related to a moratorium project approved under this section
or section 144A.073. new text begin Nursing facilities are not required to comply with any licensure or
certification requirements for beds on layaway status.
new text end

Sec. 2.

Minnesota Statutes 2008, section 144A.161, subdivision 1a, is amended to read:


Subd. 1a.

Scope.

Where a facility is undertaking closure, curtailment, reduction, or
change in operations, new text begin or where a housing with services unit registered under chapter 144D
is closed because the space that it occupies is being replaced by a nursing facility bed that
is being reactivated from layaway status,
new text end the facility and the county social services agency
must comply with the requirements of this section.

Sec. 3.

Minnesota Statutes 2009 Supplement, section 256B.0653, subdivision 3,
is amended to read:


Subd. 3.

Home health aide visits.

(a) Home health aide visits must be provided
by a certified home health aide using a written plan of care that is updated in compliance
with Medicare regulations. A home health aide shall provide hands-on personal care,
perform simple procedures as an extension of therapy or nursing services, and assist in
instrumental activities of daily living as defined in section 256B.0659new text begin , including assuring
that the person gets to medical appointments if identified in the written plan of care
new text end . Home
health aide visits must be provided in the recipient's home.

(b) All home health aide visits must have authorization under section 256B.0652.
The commissioner shall limit home health aide visits to no more than one visit per day
per recipient.

(c) Home health aides must be supervised by a registered nurse or an appropriate
therapist when providing services that are an extension of therapy.

Sec. 4.

Minnesota Statutes 2009 Supplement, section 256B.0659, subdivision 1,
is amended to read:


Subdivision 1.

Definitions.

(a) For the purposes of this section, the terms defined in
paragraphs (b) to deleted text begin (p)deleted text end new text begin (r)new text end have the meanings given unless otherwise provided in text.

(b) "Activities of daily living" means grooming, dressing, bathing, transferring,
mobility, positioning, eating, and toileting.

(c) "Behavior," effective January 1, 2010, means a category to determine the home
care rating and is based on the criteria found in this section. "Level I behavior" means
physical aggression towards self, others, or destruction of property that requires the
immediate response of another person.

(d) "Complex health-related needs," effective January 1, 2010, means a category to
determine the home care rating and is based on the criteria found in this section.

(e) "Critical activities of daily living," effective January 1, 2010, means transferring,
mobility, eating, and toileting.

(f) "Dependency in activities of daily living" means a person requires assistance to
begin and complete one or more of the activities of daily living.

(g) new text begin "Extended personal care assistance service" means personal care assistance
services included in a service plan under one of the home and community-based services
waivers authorized under sections 256B.49, 256B.0915, and 256B.092, subdivision
5, which exceed the amount, duration, and frequency of the state plan personal care
assistance services for participants who:
new text end

new text begin (1) need assistance provided periodically during a week, but less than daily, will
not be able to remain in their home without such assistance, and other replacement
services are more expensive or are not available when personal care assistance services
are to be terminated; or
new text end

new text begin (2) need additional personal care assistance services beyond the amount authorized
by the state plan personal care assistance assessment in order to assure that their safety,
health, and welfare are provided for in their homes.
new text end

new text begin (h) new text end "Health-related procedures and tasks" means procedures and tasks that can
be delegated or assigned by a licensed health care professional under state law to be
performed by a personal care assistant.

deleted text begin (h)deleted text end new text begin (i)new text end "Instrumental activities of daily living" means activities to include meal
planning and preparation; basic assistance with paying bills; shopping for food, clothing,
and other essential items; performing household tasks integral to the personal care
assistance services; communication by telephone and other media; and traveling, including
to medical appointments and to participate in the community.

deleted text begin (i)deleted text end new text begin (j)new text end "Managing employee" has the same definition as Code of Federal Regulations,
title 42, section 455.

deleted text begin (j)deleted text end new text begin (k)new text end "Qualified professional" means a professional providing supervision of
personal care assistance services and staff as defined in section 256B.0625, subdivision
19c
.

deleted text begin (k)deleted text end new text begin (l)new text end "Personal care assistance provider agency" means a medical assistance
enrolled provider that provides or assists with providing personal care assistance services
and includes a personal care assistance provider organization, personal care assistance
choice agency, class A licensed nursing agency, and Medicare-certified home health
agency.

deleted text begin (l)deleted text end new text begin (m)new text end "Personal care assistant" or "PCA" means an individual employed by a
personal care assistance agency who provides personal care assistance services.

deleted text begin (m)deleted text end new text begin (n)new text end "Personal care assistance care plan" means a written description of personal
care assistance services developed by the personal care assistance provider according
to the service plan.

deleted text begin (n)deleted text end new text begin (o)new text end "Responsible party" means an individual who is capable of providing the
support necessary to assist the recipient to live in the community.

deleted text begin (o)deleted text end new text begin (p)new text end "Self-administered medication" means medication taken orally, by injection
or insertion, or applied topically without the need for assistance.

deleted text begin (p)deleted text end new text begin (q)new text end "Service plan" means a written summary of the assessment and description of
the services needed by the recipient.

new text begin (r) "Wages and benefits" means wages and salaries, the employer's share of FICA
taxes, Medicare taxes, state and federal unemployment taxes, workers' compensation,
mileage reimbursement, health and dental insurance, life insurance, disability insurance,
long-term care insurance, uniform allowance, and contributions to employee retirement
accounts.
new text end

Sec. 5.

Minnesota Statutes 2009 Supplement, section 256B.0659, subdivision 3,
is amended to read:


Subd. 3.

Noncovered personal care assistance services.

(a) Personal care
assistance services are not eligible for medical assistance payment under this section
when provided:

(1) by the recipient's spouse, parent of a recipient under the age of 18, paid legal
guardian, licensed foster provider, except as allowed under section 256B.0651, subdivision
10
, or responsible party;

(2) in lieu of other staffing options in a residential or child care setting;

(3) solely as a child care or babysitting service; or

(4) without authorization by the commissioner or the commissioner's designee.

(b) The following personal care services are not eligible for medical assistance
payment under this section when provided in residential settings:

(1) effective January 1, 2010, when the provider of home care services who is not
related by blood, marriage, or adoption owns or otherwise controls the living arrangement,
including licensed or unlicensed services; or

(2) when personal care assistance services are the responsibility of a residential or
program license holder under the terms of a service agreement and administrative rules.

(c) Other specific tasks not covered under paragraph (a) or (b) that are not eligible
for medical assistance reimbursement for personal care assistance services under this
section include:

(1) sterile procedures;

(2) injections of fluids and medications into veins, muscles, or skin;

(3) home maintenance or chore services;

(4) homemaker services not an integral part of assessed personal care assistance
services needed by a recipient;

(5) application of restraints or implementation of procedures under section 245.825;

(6) instrumental activities of daily living for children under the age of 18new text begin , except
when immediate attention is needed for health or hygiene reasons integral to the personal
care services or when traveling to medical appointments and the need is listed in the
service plan by the assessor
new text end ; and

(7) assessments for personal care assistance services by personal care assistance
provider agencies or by independently enrolled registered nurses.

Sec. 6.

Minnesota Statutes 2009 Supplement, section 256B.0659, subdivision 4,
is amended to read:


Subd. 4.

Assessment for personal care assistance services; limitations.

(a) An
assessment as defined in subdivision 3a must be completed for personal care assistance
services.

(b) The following limitations apply to the assessment:

(1) a person must be assessed as dependent in an activity of daily living based on the
person's new text begin ongoing new text end needdeleted text begin , on a daily basis,deleted text end for:

(i) cuing and constant supervision to complete the task; or

(ii) hands-on assistance to complete the task; and

(2) a child may not be found to be dependent in an activity of daily living if because
of the child's age an adult would either perform the activity for the child or assist the child
with the activity. Assistance needed is the assistance appropriate for a typical child of
the same age.

(c) Assessment for complex health-related needs must meet the criteria in this
paragraph. During the assessment process, a recipient qualifies as having complex
health-related needs if the recipient has one or more of the interventions that are ordered by
a physician, specified in a personal care assistance care plan, and found in the following:

(1) tube feedings requiring:

(i) a gastro/jejunostomy tube; or

(ii) continuous tube feeding lasting longer than 12 hours per day;

(2) wounds described as:

(i) stage III or stage IV;

(ii) multiple wounds;

(iii) requiring sterile or clean dressing changes or a wound vac; or

(iv) open lesions such as burns, fistulas, tube sites, or ostomy sites that require
specialized care;

(3) parenteral therapy described as:

(i) IV therapy more than two times per week lasting longer than four hours for
each treatment; or

(ii) total parenteral nutrition (TPN) daily;

(4) respiratory interventions including:

(i) oxygen required more than eight hours per day;

(ii) respiratory vest more than one time per day;

(iii) bronchial drainage treatments more than two times per day;

(iv) sterile or clean suctioning more than six times per day;

(v) dependence on another to apply respiratory ventilation augmentation devices
such as BiPAP and CPAP; and

(vi) ventilator dependence under section 256B.0652;

(5) insertion and maintenance of catheter including:

(i) sterile catheter changes more than one time per month;

(ii) clean self-catheterization more than six times per day; or

(iii) bladder irrigations;

(6) bowel program more than two times per week requiring more than 30 minutes to
perform each time;

(7) neurological intervention including:

(i) seizures more than two times per week and requiring significant physical
assistance to maintain safety; or

(ii) swallowing disorders diagnosed by a physician and requiring specialized
assistance from another on a daily basis; and

(8) other congenital or acquired diseases creating a need for significantly increased
direct hands-on assistance and interventions in six to eight activities of daily living.

(d) An assessment of behaviors must meet the criteria in this paragraph. A recipient
qualifies as having a need for assistance due to behaviors if the recipient's behavior requires
assistance at least four times per week and shows one or more of the following behaviors:

(1) physical aggression towards self or others, or destruction of property that requires
the immediate response of another person;

(2) increased vulnerability due to cognitive deficits or socially inappropriate
behavior; or

(3) verbally aggressive and resistive to care.

Sec. 7.

Minnesota Statutes 2009 Supplement, section 256B.0659, subdivision 11,
is amended to read:


Subd. 11.

Personal care assistant; requirements.

(a) A personal care assistant
must meet the following requirements:

(1) be at least 18 years of age with the exception of persons who are 16 or 17 years
of age with these additional requirements:

(i) supervision by a qualified professional every 60 days; and

(ii) employment by only one personal care assistance provider agency responsible
for compliance with current labor laws;

(2) be employed by a personal care assistance provider agency;

(3) enroll with the department as a personal care assistant after clearing a background
study. Before a personal care assistant provides services, the personal care assistance
provider agency must initiate a background study on the personal care assistant under
chapter 245C, and the personal care assistance provider agency must have received a
notice from the commissioner that the personal care assistant is:

(i) not disqualified under section 245C.14; or

(ii) is disqualified, but the personal care assistant has received a set aside of the
disqualification under section 245C.22;

(4) be able to effectively communicate with the recipient and personal care
assistance provider agency;

(5) be able to provide covered personal care assistance services according to the
recipient's personal care assistance care plan, respond appropriately to recipient needs,
and report changes in the recipient's condition to the supervising qualified professional
or physician;

(6) not be a consumer of personal care assistance services;

(7) maintain daily written records including, but not limited to, time sheets under
subdivision 12;

(8) effective January 1, 2010, complete standardized training as determined
by the commissioner before completing enrollment. new text begin The training must be available
in languages other than English and to those who need accommodations due to
disabilities.
new text end Personal care assistant training must include successful completion of the
following training components: basic first aid, vulnerable adult, child maltreatment,
OSHA universal precautions, basic roles and responsibilities of personal care assistants
including information about assistance with lifting and transfers for recipients, emergency
preparedness, orientation to positive behavioral practices, fraud issues, and completion of
time sheets. Upon completion of the training components, the personal care assistant must
demonstrate the competency to provide assistance to recipients;

(9) complete training and orientation on the needs of the recipient within the first
seven days after the services begin; and

(10) be limited to providing and being paid for up to 310 hours per month of personal
care assistance services regardless of the number of recipients being served or the number
of personal care assistance provider agencies enrolled with.new text begin The number of hours worked
per day shall not be disallowed by the department unless in violation of the law.
new text end

(b) A legal guardian may be a personal care assistant if the guardian is not being paid
for the guardian services and meets the criteria for personal care assistants in paragraph (a).

(c) Effective January 1, 2010, persons who do not qualify as a personal care assistant
include parents and stepparents of minors, spouses, paid legal guardians, family foster
care providers, except as otherwise allowed in section 256B.0625, subdivision 19a, or
staff of a residential setting.

Sec. 8.

Minnesota Statutes 2009 Supplement, section 256B.0659, subdivision 13,
is amended to read:


Subd. 13.

Qualified professional; qualifications.

(a) The qualified professional
must be employed by a personal care assistance provider agency and meet the definition
under section 256B.0625, subdivision 19c. Before a qualified professional provides
services, the personal care assistance provider agency must initiate a background study on
the qualified professional under chapter 245C, and the personal care assistance provider
agency must have received a notice from the commissioner that the qualified professional:

(1) is not disqualified under section 245C.14; or

(2) is disqualified, but the qualified professional has received a set aside of the
disqualification under section 245C.22.

(b) The qualified professional shall perform the duties of training, supervision, and
evaluation of the personal care assistance staff and evaluation of the effectiveness of
personal care assistance services. The qualified professional shall:

(1) develop and monitor with the recipient a personal care assistance care plan based
on the service plan and individualized needs of the recipient;

(2) develop and monitor with the recipient a monthly plan for the use of personal
care assistance services;

(3) review documentation of personal care assistance services provided;

(4) provide training and ensure competency for the personal care assistant in the
individual needs of the recipient; and

(5) document all training, communication, evaluations, and needed actions to
improve performance of the personal care assistants.

(c) Effective deleted text begin Januarydeleted text end new text begin Julynew text end 1, 2010, the qualified professional shall complete the
provider training with basic information about the personal care assistance program
approved by the commissioner within six months of the date hired by a personal care
assistance provider agency. Qualified professionals who have completed the required
trainings as an employee with a personal care assistance provider agency do not need to
repeat the required trainings if they are hired by another agency, if they have completed the
training within the last three years.new text begin The required training shall be available in languages
other than English and to those who need accommodations due to disabilities, shall be
available online or by electronic remote connection, and shall provide for competency
testing to demonstrate an understanding of the content without attending in-person
training. A qualified professional is allowed to be employed and is not subject to the
training requirement until the training is offered online or through remote electronic
connection. A qualified professional employed by a personal care assistance provider
agency certified for participation in Medicare as a home health agency is exempt from
the training required in this subdivision.
new text end

Sec. 9.

Minnesota Statutes 2009 Supplement, section 256B.0659, subdivision 14,
is amended to read:


Subd. 14.

Qualified professional; duties.

(a) Effective January 1, 2010, all personal
care assistants must be supervised by a qualified professional.

(b) Through direct training, observation, return demonstrations, and consultation
with the staff and the recipient, the qualified professional must ensure and document
that the personal care assistant is:

(1) capable of providing the required personal care assistance services;

(2) knowledgeable about the plan of personal care assistance services before services
are performed; and

(3) able to identify conditions that should be immediately brought to the attention of
the qualified professional.

(c) The qualified professional shall evaluate the personal care assistant within the first
14 days of starting to providenew text begin regularly schedulednew text end services for a recipient except for the
personal care assistance choice option under subdivision 19, paragraph (a), clause (4). new text begin For
this initial evaluation,
new text end the qualified professional shall evaluate the personal care assistance
services for a recipient through direct observation of a personal care assistant's worknew text begin .
Subsequent visits to evaluate the personal care assistance services provided to a recipient
do not require direct observation of each personal care assistant's work and shall occur
new text end :

(1) at least every 90 days thereafter for the first year of a recipient's services; deleted text begin and
deleted text end

(2) every 120 days after the first year of a recipient's service or whenever needed for
response to a recipient's request for increased supervision of the personal care assistance
staffdeleted text begin .deleted text end new text begin ; and
new text end

new text begin (3) after the first 180 days of a recipient's service, supervisory visits may alternate
between unscheduled phone or Internet technology and in-person visits, unless the
in-person visits are needed according to the care plan.
new text end

(d) Communication with the recipient is a part of the evaluation process of the
personal care assistance staff.

(e) At each supervisory visit, the qualified professional shall evaluate personal care
assistance services including the following information:

(1) satisfaction level of the recipient with personal care assistance services;

(2) review of the month-to-month plan for use of personal care assistance services;

(3) review of documentation of personal care assistance services provided;

(4) whether the personal care assistance services are meeting the goals of the service
as stated in the personal care assistance care plan and service plan;

(5) a written record of the results of the evaluation and actions taken to correct any
deficiencies in the work of a personal care assistant; and

(6) revision of the personal care assistance care plan as necessary in consultation
with the recipient or responsible party, to meet the needs of the recipient.

(f) The qualified professional shall complete the required documentation in the
agency recipient and employee files and the recipient's home, including the following
documentation:

(1) the personal care assistance care plan based on the service plan and individualized
needs of the recipient;

(2) a month-to-month plan for use of personal care assistance services;

(3) changes in need of the recipient requiring a change to the level of service and the
personal care assistance care plan;

(4) evaluation results of supervision visits and identified issues with personal care
assistance staff with actions taken;

(5) all communication with the recipient and personal care assistance staff; and

(6) hands-on training or individualized training for the care of the recipient.

(g) The documentation in paragraph (f) must be done on agency forms.

(h) The services that are not eligible for payment as qualified professional services
include:

(1) direct professional nursing tasks that could be assessed and authorized as skilled
nursing tasks;

(2) supervision of personal care assistance completed by telephone;

(3) agency administrative activities;

(4) training other than the individualized training required to provide care for a
recipient; and

(5) any other activity that is not described in this section.

Sec. 10.

Minnesota Statutes 2009 Supplement, section 256B.0659, subdivision 18,
is amended to read:


Subd. 18.

Personal care assistance choice option; generally.

(a) The
commissioner may allow a recipient of personal care assistance services to use a fiscal
intermediary to assist the recipient in paying and accounting for medically necessary
covered personal care assistance services. Unless otherwise provided in this section, all
other statutory and regulatory provisions relating to personal care assistance services apply
to a recipient using the personal care assistance choice option.

(b) Personal care assistance choice is an option of the personal care assistance
program that allows the recipient who receives personal care assistance services to be
responsible for the hiring, training, scheduling, and firing of personal care assistantsnew text begin
according to the terms of the written agreement with the personal care assistance choice
agency required under subdivision 20, paragraph (a)
new text end . This program offers greater control
and choice for the recipient in who provides the personal care assistance service and when
the service is scheduled. The recipient or the recipient's responsible party must choose a
personal care assistance choice provider agency as a fiscal intermediary. This personal
care assistance choice provider agency manages payroll, invoices the state, is responsible
for all payroll-related taxes and insurance, and is responsible for providing the consumer
training and support in managing the recipient's personal care assistance services.

Sec. 11.

Minnesota Statutes 2009 Supplement, section 256B.0659, subdivision 19,
is amended to read:


Subd. 19.

Personal care assistance choice option; qualifications; duties.

(a)
Under personal care assistance choice, the recipient or responsible party shall:

(1) recruit, hire, schedule, and terminate personal care assistants deleted text begin and a qualified
professional
deleted text end new text begin according to the terms of the written agreement required under subdivision
20, paragraph (a)
new text end ;

(2) develop a personal care assistance care plan based on the assessed needs
and addressing the health and safety of the recipient with the assistance of a qualified
professional as needed;

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

(4) effective January 1, 2010, supervise and evaluate the personal care assistant with
the qualified professional, who is required to visit the recipient at least every 180 days;

(5) monitor and verify in writing and report to the personal care assistance choice
agency the number of hours worked by the personal care assistant and the qualified
professional;

(6) engage in an annual face-to-face reassessment to determine continuing eligibility
and service authorization; and

(7) use the same personal care assistance choice provider agency if shared personal
assistance care is being used.

(b) The personal care assistance choice provider agency shall:

(1) meet all personal care assistance provider agency standards;

(2) enter into a written agreement with the recipient, responsible party, and personal
care assistants;

(3) not be related as a parent, child, sibling, or spouse to the recipient, qualified
professional, or the personal care assistant; and

(4) ensure arm's-length transactions without undue influence or coercion with the
recipient and personal care assistant.

(c) The duties of the personal care assistance choice provider agency are to:

(1) be the employer of the personal care assistant and the qualified professional for
employment law and related regulations including, but not limited to, purchasing and
maintaining workers' compensation, unemployment insurance, surety and fidelity bonds,
and liability insurance, and submit any or all necessary documentation including, but not
limited to, workers' compensation and unemployment insurance;

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

(3) request and complete background studies that comply with the requirements for
personal care assistants and qualified professionals;

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

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

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

(7) make the arrangements and pay taxes and other benefits, if any, and comply with
any legal requirements for a Minnesota employer;

(8) enroll in the medical assistance program as a personal care assistance choice
agency; and

(9) enter into a written agreement as specified in subdivision 20 before services
are provided.

Sec. 12.

Minnesota Statutes 2009 Supplement, section 256B.0659, subdivision 20,
is amended to read:


Subd. 20.

Personal care assistance choice option; administration.

(a) Before
services commence under the personal care assistance choice option, and annually
thereafter, the personal care assistance choice provider agencydeleted text begin , recipient, or responsible
party, each personal care assistant, and the qualified professional
deleted text end new text begin and the recipient or
responsible party
new text end shall enter into a written agreement. Thenew text begin annualnew text end agreement mustnew text begin be
provided to the recipient or responsible party, each personal care assistant, and the
qualified professional when completed, and
new text end include at a minimum:

(1) duties of the recipient, qualified professional, personal care assistant, and
personal care assistance choice provider agency;

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

(3) administrative fee of the personal care assistance choice provider agency and
services paid for with that fee, including background study fees;

(4) grievance procedures to respond to complaints;

(5) procedures for hiring and terminating the personal care assistant; and

(6) documentation requirements including, but not limited to, time sheets, activity
records, and the personal care assistance care plan.

(b) Effective January 1, 2010, except for the administrative fee of the personal care
assistance choice provider agency as reported on the written agreement, the remainder
of the rates paid to the personal care assistance choice provider agency must be used to
pay for the salary and benefits for the personal care assistant or the qualified professional.
The provider agency must use a minimum of 72.5 percent of the revenue generated by
the medical assistance rate for personal care assistance services for employee personal
care assistant wages and benefits.

(c) The commissioner shall deny, revoke, or suspend the authorization to use the
personal care assistance choice option if:

(1) it has been determined by the qualified professional or 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 this
subdivision;

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

(4) the department terminates the personal care assistance choice option.

(d) The recipient or responsible party may appeal the commissioner's decision in
paragraph (c) according to section 256.045. The denial, revocation, or suspension to
use the personal care assistance choice option must not affect the recipient's authorized
level of personal care assistance services.

Sec. 13.

Minnesota Statutes 2009 Supplement, section 256B.0659, subdivision 21,
is amended to read:


Subd. 21.

Requirements for initial enrollment of personal care assistance
provider agencies.

(a) All personal care assistance provider agencies must provide, at the
time of enrollment as a personal care assistance provider agency in a format determined
by the commissioner, information and documentation that includes, but is not limited to,
the following:

(1) the personal care assistance provider agency's current contact information
including address, telephone number, and e-mail address;

(2) proof of surety bond coverage in the amount of $50,000 or ten percent of the
provider's payments from Medicaid in the previous year, whichever is less;

(3) proof of fidelity bond coverage in the amount of $20,000;

(4) proof of workers' compensation insurance coverage;

(5) a description of the personal care assistance provider agency's organization
identifying the names of all owners, managing employees, staff, board of directors, and
the affiliations of the directors, owners, or staff to other service providers;

(6) a copy of the personal care assistance provider agency's written policies and
procedures including: hiring of employees; training requirements; service delivery;
and employee and consumer safety including process for notification and resolution
of consumer grievances, identification and prevention of communicable diseases, and
employee misconduct;

(7) copies of all other forms the personal care assistance provider agency uses in
the course of daily business including, but not limited to:

(i) a copy of the personal care assistance provider agency's time sheet if the time
sheet varies from the standard time sheet for personal care assistance services approved
by the commissioner, and a letter requesting approval of the personal care assistance
provider agency's nonstandard time sheet;

(ii) the personal care assistance provider agency's template for the personal care
assistance care plan; and

(iii) the personal care assistance provider agency's template for the written
agreement in subdivision 20 for recipients using the personal care assistance choice
option, if applicable;

(8) a list of all trainings and classes that the personal care assistance provider agency
requires of its staff providing personal care assistance services;

(9) documentation that the personal care assistance provider agency and staff have
successfully completed all the training required by this section;

(10) documentation of the agency's marketing practices;

(11) disclosure of ownership, leasing, or management of all residential properties
that is used or could be used for providing home care services; deleted text begin and
deleted text end

(12) documentation that the agency will use the following percentages of revenue
generated from the medical assistance rate paid for personal care assistance services
for employee personal care assistant wages and benefits: 72.5 percent of revenue in the
personal care assistance choice option and 72.5 percent of revenue from other personal
care assistance providersnew text begin ; and
new text end

new text begin (13) documentation that the agency does not burden recipients' free exercise of their
right to choose service providers by requiring personal care assistants to sign an agreement
not to work with any particular personal care assistance recipient or for another personal
care assistance provider agency after leaving the agency
new text end .

(b) Personal care assistance provider agencies shall provide the information specified
in paragraph (a) to the commissioner at the time the personal care assistance provider
agency enrolls as a vendor or upon request from the commissioner. The commissioner
shall collect the information specified in paragraph (a) from all personal care assistance
providers beginning July 1, 2009.

(c) All personal care assistance provider agencies shallnew text begin require all employees in
management and supervisory positions and owners of the agency who are active in the
day-to-day management and operations of the agency to
new text end complete mandatory training as
determined by the commissioner before enrollmentnew text begin of the agencynew text end as a provider. deleted text begin Personal
care assistance provider agencies are required to send all owners, qualified professionals
employed by the agency, and all other managing employees to the initial and subsequent
trainings.
deleted text end new text begin Employees in management and supervisory positions and owners who are active
in the day-to-day operations of an agency who have completed the required training as
an employee with a personal care assistance provider agency do not need to repeat the
required training if they are hired by another agency, if they have completed the training
within the past three years. By September 1, 2010, the required training must be available
online or by electronic remote connection, and provide for competency testing. The
required training must be available in languages other than English and to those who need
accommodations due to disabilities.
new text end Personal care assistance provider agency billing staff
shall complete training about personal care assistance program financial management. This
training is effective July 1, 2009. Any personal care assistance provider agency enrolled
before that date shall, if it has not already, complete the provider training within 18 months
of July 1, 2009. Any new ownersdeleted text begin , new qualified professionals, and new managingdeleted text end new text begin ornew text end
employeesnew text begin in management and supervisory positions involved in the day-to-day operationsnew text end
are required to complete mandatory training as a requisite of deleted text begin hiringdeleted text end new text begin working for the
agency. Personal care assistance provider agencies certified for participation in Medicare
as home health agencies are exempt from the training required in this subdivision
new text end .

Sec. 14.

Minnesota Statutes 2009 Supplement, section 256B.0659, subdivision 27,
is amended to read:


Subd. 27.

Personal care assistance provider agencydeleted text begin ; ventilator trainingdeleted text end .

new text begin (a) new text end The
personal care assistance provider agency is required to provide training for the personal
care assistant responsible for working with a recipient who is ventilator dependent. All
training must be administered by a respiratory therapist, nurse, or physician. Qualified
professional supervision by a nurse must be completed and documented on file in the
personal care assistant's employment record and the recipient's health record. If offering
personal care services to a ventilator-dependent recipient, the personal care assistance
provider agency shall demonstrate new text begin and document new text end the ability to:

(1) train the personal care assistant;

(2) supervise the personal care assistant in deleted text begin ventilator operation and maintenancedeleted text end new text begin the
care of a ventilator-dependent recipient
new text end ; deleted text begin and
deleted text end

(3) supervise the recipient and responsible party in deleted text begin ventilator operation and
maintenance
deleted text end new text begin the care of a ventilator-dependent recipient; and
new text end

new text begin (4) provide documentation of training and supervision in clauses (1) to (3) upon
request
new text end .

new text begin (b) A personal care assistant shall not undertake any clinical services, patient
assessment, patient evaluation, or clinical education regarding the ventilator or the patient
on the ventilator. These services may only be provided by health care professionals
licensed or registered in this state.
new text end

new text begin (c) A personal care assistant may only perform tasks associated with ventilator
maintenance that are approved by the Board of Medical Practice in consultation with the
Respiratory Care Practitioner Advisory Council and the Department of Human Services.
new text end

Sec. 15.

Minnesota Statutes 2009 Supplement, section 256B.0659, subdivision 30,
is amended to read:


Subd. 30.

Notice of service changes to recipients.

The commissioner must provide:

(1) by October 31, 2009, information to recipients likely to be affected that (i)
describes the changes to the personal care assistance program that may result in the
loss of access to personal care assistance services, and (ii) includes resources to obtain
further information;deleted text begin and
deleted text end

(2) notice of changes in medical assistance home care services to each affected
recipient at least 30 days before the effective date of the change.

The notice shall include how to get further information on the changes, how to get help to
obtain other services, a list of community resources, and appeal rights. Notwithstanding
section 256.045, a recipient may request continued services pending appeal within the
time period allowed to request an appealnew text begin ; and
new text end

new text begin (3) a service agreement authorizing personal care assistance hours of service at
the previously authorized level throughout the appeal process period when a recipient
requests services pending an appeal
new text end .

Sec. 16.

Minnesota Statutes 2009 Supplement, section 256B.0911, subdivision 1a,
is amended to read:


Subd. 1a.

Definitions.

For purposes of this section, the following definitions apply:

(a) "Long-term care consultation services" means:

(1) assistance in identifying services needed to maintain an individual in the most
inclusive environment;

(2) providing recommendations on cost-effective community services that are
available to the individual;

(3) development of an individual's person-centered community support plan;

(4) providing information regarding eligibility for Minnesota health care programs;

(5) face-to-face long-term care consultation assessments, which may be completed
in a hospital, nursing facility, intermediate care facility for persons with developmental
disabilities (ICF/DDs), regional treatment centers, or the person's current or planned
residence;

(6) federally mandated screening to determine the need for a institutional level of
care under section 256B.0911, subdivision 4, paragraph (a);

(7) determination of home and community-based waiver service eligibility including
level of care determination for individuals who need an institutional level of care as
defined under section 144.0724, subdivision 11, or 256B.092, service eligibility including
state plan home care services identified in deleted text begin sectiondeleted text end new text begin sectionsnew text end 256B.0625, subdivisions 6,
7, and 19, paragraphs (a) and (c),new text begin and 256B.0657,new text end based on assessment and support
plan development with appropriate referralsnew text begin , including the option for consumer directed
community supports
new text end ;

(8) providing recommendations for nursing facility placement when there are no
cost-effective community services available; and

(9) assistance to transition people back to community settings after facility
admission.

(b) "Long-term care options counseling" means the services provided by the linkage
lines as mandated by sections 256.01 and 256.975, subdivision 7, and also includes
telephone assistance and follow up once a long-term care consultation assessment has
been completed.

(c) "Minnesota health care programs" means the medical assistance program under
chapter 256B and the alternative care program under section 256B.0913.

(d) "Lead agencies" means counties or a collaboration of counties, tribes, and health
plans administering long-term care consultation assessment and support planning services.

Sec. 17.

Minnesota Statutes 2009 Supplement, section 256B.0911, subdivision 2b,
is amended to read:


Subd. 2b.

Certified assessors.

(a) Beginning January 1, 2011, each lead agency
shall use certified assessors who have completed training and the certification processes
determined by the commissioner in subdivision 2c. Certified assessors shall demonstrate
best practices in assessment and support planning including person-centered planning
principals and have a common set of skills that must ensure consistency and equitable
access to services statewide. Assessors must be part of a multidisciplinary team of
professionals that includes public health nurses, social workers, and other professionals
as defined in paragraph (b). For persons with complex health care needs, a public health
nurse or registered nurse from a multidisciplinary team must be consulted.new text begin A lead agency
may choose, in accordance with departmental policies, to contract with a qualified,
certified assessor to conduct assessments and reassessments on behalf of the lead agency.
new text end

(b) Certified assessors are persons with a minimum of a bachelor's degree in social
work, nursing with a public health nursing certificate, or other closely related field with at
least one year of home and community-based experience or a two-year registered nursing
degree with at least three years of home and community-based experience that have
received training and certification specific to assessment and consultation for long-term
care services in the state.

Sec. 18.

Minnesota Statutes 2009 Supplement, section 256B.0911, subdivision 3a,
is amended to read:


Subd. 3a.

Assessment and support planning.

(a) Persons requesting assessment,
services planning, or other assistance intended to support community-based living,
including persons who need assessment in order to determine waiver or alternative care
program eligibility, must be visited by a long-term care consultation team within 15
calendar days after the date on which an assessment was requested or recommended. After
January 1, 2011, these requirements also apply to personal care assistance services, private
duty nursing, and home health agency services, on timelines established in subdivision 5.
Face-to-face assessments must be conducted according to paragraphs (b) to (i).

(b) The county may utilize a team of either the social worker or public health nurse,
or both. After January 1, 2011, lead agencies shall use certified assessors to conduct the
assessment in a face-to-face interview. The consultation team members must confer
regarding the most appropriate care for each individual screened or assessed.

(c) The assessment must be comprehensive and include a person-centered
assessment of the health, psychological, functional, environmental, and social needs of
referred individuals and provide information necessary to develop a support plan that
meets the consumers needs, using an assessment form provided by the commissioner.

(d) The assessment must be conducted in a face-to-face interview with the person
being assessed and the person's legal representative, as required by legally executed
documents, and other individuals as requested by the person, who can provide information
on the needs, strengths, and preferences of the person necessary to develop a support plan
that ensures the person's health and safety, but who is not a provider of service or has any
financial interest in the provision of services.

(e) The person, or the person's legal representative, must be provided with written
recommendations for community-based servicesnew text begin , including consumer directed options,new text end
or institutional care that include documentation that the most cost-effective alternatives
available were offered to the individual. For purposes of this requirement, "cost-effective
alternatives" means community services and living arrangements that cost the same as or
less than institutional care.

(f) If the person chooses to use community-based services, the person or the person's
legal representative must be provided with a written community support plan, regardless
of whether the individual is eligible for Minnesota health care programs. A person may
request assistance in identifying community supports without participating in a complete
assessment. Upon a request for assistance identifying community support, the person must
be transferred or referred to the services available under sections 256.975, subdivision 7,
and 256.01, subdivision 24, for telephone assistance and follow up.

(g) The person has the right to make the final decision between institutional
placement and community placement after the recommendations have been provided,
except as provided in subdivision 4a, paragraph (c).

(h) The team must give the person receiving assessment or support planning, or
the person's legal representative, materials, and forms supplied by the commissioner
containing the following information:

(1) the need for and purpose of preadmission screening if the person selects nursing
facility placement;

(2) the role of the long-term care consultation assessment and support planning in
waiver and alternative care program eligibility determination;

(3) information about Minnesota health care programs;

(4) the person's freedom to accept or reject the recommendations of the team;

(5) the person's right to confidentiality under the Minnesota Government Data
Practices Act, chapter 13;

(6) the long-term care consultant's decision regarding the person's need for
institutional level of care as determined under criteria established in section 144.0724,
subdivision 11
, or 256B.092; and

(7) the person's right to appeal the decision regarding the need for nursing facility
level of care or the county's final decisions regarding public programs eligibility according
to section 256.045, subdivision 3.

(i) Face-to-face assessment completed as part of eligibility determination for
the alternative care, elderly waiver, community alternatives for disabled individuals,
community alternative care, and traumatic brain injury waiver programs under sections
256B.0915, 256B.0917, and 256B.49 is valid to establish service eligibility for no more
than 60 calendar days after the date of assessment. The effective eligibility start date
for these programs can never be prior to the date of assessment. If an assessment was
completed more than 60 days before the effective waiver or alternative care program
eligibility start date, assessment and support plan information must be updated in a
face-to-face visit and documented in the department's Medicaid Management Information
System (MMIS). The effective date of program eligibility in this case cannot be prior to
the date the updated assessment is completed.

Sec. 19.

Minnesota Statutes 2008, section 256B.0911, subdivision 4d, is amended to
read:


Subd. 4d.

Preadmission screening of individuals under 65 years of age.

(a)
It is the policy of the state of Minnesota to ensure that individuals with disabilities or
chronic illness are served in the most integrated setting appropriate to their needs and have
the necessary information to make informed choices about home and community-based
service options.

(b) Individuals under 65 years of age who are admitted to a nursing facility from a
hospital must be screened prior to admission as outlined in subdivisions 4a through 4c.

(c) Individuals under 65 years of age who are admitted to nursing facilities with
only a telephone screening must receive a face-to-face assessment from the long-term
care consultation team member of the county in which the facility is located or from the
recipient's county case manager within 40 calendar days of admission.

(d) Individuals under 65 years of age who are admitted to a nursing facility
without preadmission screening according to the exemption described in subdivision 4b,
paragraph (a), clause (3), and who remain in the facility longer than 30 days must receive
a face-to-face assessment within 40 days of admission.

(e) At the face-to-face assessment, the long-term care consultation team member or
county case manager must perform the activities required under subdivision 3b.

(f) For individuals under 21 years of age, a screening interview which recommends
nursing facility admission must be face-to-face and approved by the commissioner before
the individual is admitted to the nursing facility.

(g) In the event that an individual under 65 years of age is admitted to a nursing
facility on an emergency basis, the county must be notified of the admission on the
next working day, and a face-to-face assessment as described in paragraph (c) must be
conducted within 40 calendar days of admission.

(h) At the face-to-face assessment, the long-term care consultation team member or
the case manager must present information about home and community-based optionsnew text begin ,
including consumer directed options,
new text end so the individual can make informed choices. If the
individual chooses home and community-based services, the long-term care consultation
team member or case manager must complete a written relocation plan within 20 working
days of the visit. The plan shall describe the services needed to move out of the facility
and a time line for the move which is designed to ensure a smooth transition to the
individual's home and community.

(i) An individual under 65 years of age residing in a nursing facility shall receive a
face-to-face assessment at least every 12 months to review the person's service choices
and available alternatives unless the individual indicates, in writing, that annual visits are
not desired. In this case, the individual must receive a face-to-face assessment at least
once every 36 months for the same purposes.

(j) Notwithstanding the provisions of subdivision 6, the commissioner may pay
county agencies directly for face-to-face assessments for individuals under 65 years of age
who are being considered for placement or residing in a nursing facility.

Sec. 20. new text begin DIRECTION TO COMMISSIONER; CONSULTATION WITH
STAKEHOLDERS.
new text end

new text begin The commissioner of human services shall consult with stakeholders experienced in
using and providing services through the consumer directed community supports option
during the identification of data to be used in future development of an individualized
budget methodology for the home and community-based waivers under the new
comprehensive assessment.
new text end