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Key: (1) language to be deleted (2) new language


                         Laws of Minnesota 1987 

                        CHAPTER 374-H.F.No. 1417 
           An act relating to human services; providing for 
          hospice care payments under medical assistance; 
          amending Minnesota Statutes 1986, section 256B.02, 
          subdivision 8.  
    Section 1.  Minnesota Statutes 1986, section 256B.02, 
subdivision 8, is amended to read:  
assistance" or "medical care" means payment of part or all of 
the cost of the following care and services for eligible 
individuals whose income and resources are insufficient to meet 
all of this cost: 
    (1) Inpatient hospital services.  A second medical opinion 
is required prior to reimbursement for elective surgeries.  The 
commissioner shall publish in the State Register a proposed list 
of elective surgeries that require a second medical opinion 
prior to reimbursement.  The list is not subject to the 
requirements of sections 14.01 to 14.70.  The commissioner's 
decision whether a second medical opinion is required, made in 
accordance with rules governing that decision, is not subject to 
administrative appeal;  
    (2) Skilled nursing home services and services of 
intermediate care facilities, including training and 
habilitation services, as defined in section 256B.50, 
subdivision 1, for persons with mental retardation or related 
conditions who are residing in intermediate care facilities for 
persons with mental retardation or related conditions.  Medical 
assistance must not be used to pay the costs of nursing care 
provided to a patient in a swing bed as defined in section 
    (3) Physicians' services; 
    (4) Outpatient hospital or nonprofit community health 
clinic services or physician-directed clinic services.  The 
physician-directed clinic staff shall include at least two 
physicians, one of whom is on the premises whenever the clinic 
is open, and all services shall be provided under the direct 
supervision of the physician who is on the premises.  Hospital 
outpatient departments are subject to the same limitations and 
reimbursements as other enrolled vendors for all services, 
except initial triage, emergency services, and services not 
provided or immediately available in clinics, physicians' 
offices, or by other enrolled providers.  "Emergency services" 
means those medical services required for the immediate 
diagnosis and treatment of medical conditions that, if not 
immediately diagnosed and treated, could lead to serious 
physical or mental disability or death or are necessary to 
alleviate severe pain.  Neither the hospital, its employees, nor 
any physician or dentist, shall be liable in any action arising 
out of a determination not to render emergency services or care 
if reasonable care is exercised in determining the condition of 
the person, or in determining the appropriateness of the 
facilities, or the qualifications and availability of personnel 
to render these services consistent with this section;  
    (5) Community mental health center services, as defined in 
rules adopted by the commissioner pursuant to section 256B.04, 
subdivision 2, and provided by a community mental health center 
as defined in section 245.62, subdivision 2;  
    (6) Home health care services; 
    (7) Private duty nursing services; 
    (8) Physical therapy and related services; 
    (9) Dental services, excluding cast metal restorations; 
    (10) Laboratory and X-ray services; 
    (11) The following if prescribed by a licensed practitioner:
drugs, eyeglasses, dentures, and prosthetic devices.  The 
commissioner shall designate a formulary committee which shall 
advise the commissioner on the names of drugs for which payment 
shall be made, recommend a system for reimbursing providers on a 
set fee or charge basis rather than the present system, and 
develop methods encouraging use of generic drugs when they are 
less expensive and equally effective as trademark drugs.  The 
commissioner shall appoint the formulary committee members no 
later than 30 days following July 1, 1981.  The formulary 
committee shall consist of nine members, four of whom shall be 
physicians who are not employed by the department of human 
services, and a majority of whose practice is for persons paying 
privately or through health insurance, three of whom shall be 
pharmacists who are not employed by the department of human 
services, and a majority of whose practice is for persons paying 
privately or through health insurance, a consumer 
representative, and a nursing home representative.  Committee 
members shall serve two-year terms and shall serve without 
compensation.  The commissioner may establish a drug formulary.  
Its establishment and publication shall not be subject to the 
requirements of the administrative procedure act, but the 
formulary committee shall review and comment on the formulary 
contents.  Prior authorization may be required by the 
commissioner, with the consent of the drug formulary committee, 
before certain formulary drugs are eligible for payment.  The 
formulary shall not include:  drugs or products for which there 
is no federal funding; over-the-counter drugs, except for 
antacids, acetaminophen, family planning products, aspirin, 
insulin, prenatal vitamins, and vitamins for children under the 
age of seven; or any other over-the-counter drug identified by 
the commissioner, in consultation with the appropriate 
professional consultants under contract with or employed by the 
state agency, as necessary, appropriate and cost effective for 
the treatment of certain specified chronic diseases, conditions 
or disorders, and this determination shall not be subject to the 
requirements of chapter 14, the administrative procedure act; 
nutritional products, except for those products needed for 
treatment of phenylketonuria, hyperlysinemia, maple syrup urine 
disease, a combined allergy to human milk, cow milk, and soy 
formula, or any other childhood or adult diseases, conditions, 
or disorders identified by the commissioner as requiring a 
similarly necessary nutritional product; anorectics; and drugs 
for which medical value has not been established.  Separate 
payment shall not be made for nutritional products for residents 
of long-term care facilities; payment for dietary requirements 
is a component of the per diem rate paid to these facilities.  
Payment to drug vendors shall not be modified before the 
formulary is established except that the commissioner shall not 
permit payment for any drugs which may not by law be included in 
the formulary, and the commissioner's determination shall not be 
subject to chapter 14, the administrative procedure act.  The 
commissioner shall publish conditions for prohibiting payment 
for specific drugs after considering the formulary committee's 
    The basis for determining the amount of payment shall be 
the actual acquisition costs of the drugs plus a fixed 
dispensing fee established by the commissioner.  Actual 
acquisition cost includes quantity and other special discounts 
except time and cash discounts.  Establishment of this fee shall 
not be subject to the requirements of the administrative 
procedure act.  Whenever a generically equivalent product is 
available, payment shall be on the basis of the actual 
acquisition cost of the generic drug, unless the prescriber 
specifically indicates "dispense as written" on the prescription 
as required by section 151.21, subdivision 2.  
    Notwithstanding the above provisions, implementation of any 
change in the fixed dispensing fee which has not been subject to 
the administrative procedure act shall be limited to not more 
than 180 days, unless, during that time, the commissioner shall 
have initiated rulemaking through the administrative procedure 
    (12) Diagnostic, screening, and preventive services; 
    (13) Health care prepayment plan premiums and insurance 
premiums if paid directly to a vendor and supplementary medical 
insurance benefits under Title XVIII of the Social Security Act; 
    (14) Abortion services, but only if one of the following 
conditions is met: 
    (a) The abortion is a medical necessity.  "Medical 
necessity" means (1) the signed written statement of two 
physicians indicating the abortion is medically necessary to 
prevent the death of the mother, and (2) the patient has given 
her consent to the abortion in writing unless the patient is 
physically or legally incapable of providing informed consent to 
the procedure, in which case consent will be given as otherwise 
provided by law; 
    (b) The pregnancy is the result of criminal sexual conduct 
as defined in section 609.342, clauses (c), (d), (e)(i), and 
(f), and the incident is reported within 48 hours after the 
incident occurs to a valid law enforcement agency for 
investigation, unless the victim is physically unable to report 
the criminal sexual conduct, in which case the report shall be 
made within 48 hours after the victim becomes physically able to 
report the criminal sexual conduct; or 
    (c) The pregnancy is the result of incest, but only if the 
incident and relative are reported to a valid law enforcement 
agency for investigation prior to the abortion; 
    (15) Transportation costs incurred solely for obtaining 
emergency medical care or transportation costs incurred by 
nonambulatory persons in obtaining emergency or nonemergency 
medical care when paid directly to an ambulance company, common 
carrier, or other recognized providers of transportation 
services.  For the purpose of this clause, a person who is 
incapable of transport by taxicab or bus shall be considered to 
be nonambulatory; 
    (16) To the extent authorized by rule of the state agency, 
costs of bus or taxicab transportation incurred by any 
ambulatory eligible person for obtaining nonemergency medical 
    (17) Personal care attendant services provided by an 
individual, not a relative, who is qualified to provide the 
services, where the services are prescribed by a physician in 
accordance with a plan of treatment and are supervised by a 
registered nurse.  Payments to personal care attendants shall be 
adjusted annually to reflect changes in the cost of living or of 
providing services by the average annual adjustment granted to 
vendors such as nursing homes and home health agencies; and 
    (18) Any other medical or remedial care licensed and 
recognized under state law unless otherwise prohibited by law, 
except licensed chemical dependency treatment programs or 
primary treatment or extended care treatment units in hospitals 
that are covered under Laws 1986, chapter 394, sections 8 to 
20.  The commissioner shall include chemical dependency services 
in the state medical assistance plan for federal reporting 
purposes, but payment must be made under Laws 1986, chapter 394, 
sections 8 to 20; and 
     (19) Hospice care services under Public Law Number 99-272, 
section 9505, to the extent authorized by rule.  
     Sec. 2.  [EFFECTIVE DATE.] 
    Section 1 is effective July 1, 1988. 
    Approved June 2, 1987

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