Minnesota Session Laws - 1990, Regular Session

  

                         Laws of Minnesota 1990 

                        CHAPTER 599-S.F.No. 1813 
           An act relating to human services; delaying 
          restrictions on discharges of residents from regional 
          treatment centers to larger community intermediate 
          care facilities; requiring the commissioner to develop 
          a plan; amending the Medicare certification 
          requirement for nursing homes; amending Minnesota 
          Statutes 1989 Supplement, sections 256B.092, 
          subdivision 7; and 256B.48, subdivision 6.  
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
     Section 1.  Minnesota Statutes 1989 Supplement, section 
256B.092, subdivision 7, is amended to read: 
    Subd. 7.  [SCREENING TEAMS ESTABLISHED.] (a) Each county 
agency shall establish a screening team which, under the 
direction of the county case manager, shall make an evaluation 
of need for home and community-based services of persons who are 
entitled to the level of care provided by an intermediate care 
facility for persons with mental retardation or related 
conditions or for whom there is a reasonable indication that 
they might require the level of care provided by an intermediate 
care facility.  The screening team shall make an evaluation of 
need within 15 working days of the date that the assessment is 
completed or within 60 working days of a request for service by 
a person with mental retardation or related conditions, 
whichever is the earlier, and within five working days of an 
emergency admission of an individual to an intermediate care 
facility for persons with mental retardation or related 
conditions.  The screening team shall consist of the case 
manager, the client, a parent or guardian, and a qualified 
mental retardation professional, as defined in the Code of 
Federal Regulations, title 42, section 483.430, as amended 
through June 3, 1988.  The case manager may also act as the 
qualified mental retardation professional if the case manager 
meets the federal definition.  County social service agencies 
may contract with a public or private agency or individual who 
is not a service provider for the person for the public 
guardianship representation required by the screening or 
individual service and habilitation planning process.  The 
contract shall be limited to public guardianship representation 
for the screening and individual service and habilitation 
planning activities.  The contract shall require compliance with 
the commissioner's instructions and may be for paid or voluntary 
services.  For individuals determined to have overriding health 
care needs, a registered nurse must be designated as either the 
case manager or the qualified mental retardation professional.  
The case manager shall consult with the client's physician, 
other health professionals or other persons as necessary to make 
this evaluation.  The case manager, with the concurrence of the 
client or the client's legal representative, may invite other 
persons to attend meetings of the screening team.  No member of 
the screening team shall have any direct or indirect service 
provider interest in the case. 
     (b) In addition to the requirements of paragraph (a), the 
following conditions apply to the discharge of persons with 
mental retardation or a related condition from a regional 
treatment center: 
     (1) For a person under public guardianship, at least two 
weeks prior to each screening team meeting the case manager must 
notify in writing parents, near relatives, and the ombudsman 
established under section 245.92 or a designee, and invite them 
to attend.  The notice to parents and near relatives must 
include:  (i) notice of the provisions of section 252A.03, 
subdivision 4, regarding assistance to persons interested in 
assuming private guardianship; (ii) notice of the rights of 
parents and near relatives to object to a proposed discharge by 
requesting a review as provided in clause (7); and (iii) 
information about advocacy services available to assist parents 
and near relatives of persons with mental retardation or related 
conditions.  In the case of an emergency screening meeting, the 
notice must be provided as far in advance as practicable. 
     (2) Prior to the discharge, a screening must be conducted 
under subdivision 8 and a plan developed under subdivision 1a.  
For a person under public guardianship, the county shall 
encourage parents and near relatives to participate in the 
screening team meeting.  The screening team shall consider the 
opinions of parents and near relatives in making its 
recommendations.  The screening team shall determine that the 
services outlined in the plan are available in the community 
before recommending a discharge.  The case manager shall provide 
a copy of the plan to the person, legal representative, parents, 
near relatives, the ombudsman established under section 245.92, 
and the protection and advocacy system established under United 
States Code, title 42, section 6042, at least 30 days prior to 
the date the proposed discharge is to occur.  The information 
provided to parents and near relatives must include notice of 
the rights of parents and near relatives to object to a proposed 
discharge by requesting a review as provided in clause (7).  If 
a discharge occurs, the case manager and a staff person from the 
regional treatment center from which the person was discharged 
must conduct a monitoring visit as required in Minnesota Rules, 
part 9525.0115, within 90 days of discharge and provide an 
evaluation within 15 days of the visit to the person, legal 
representative, parents, near relatives, ombudsman, and the 
protection and advocacy system established under United States 
Code, title 42, section 6042. 
     (3) In order for a discharge or transfer from a regional 
treatment center to be approved, the concurrence of a majority 
of the screening team members is required.  The screening team 
shall determine that the services outlined in the discharge plan 
are available and accessible in the community before the person 
is discharged.  The recommendation of the screening team cannot 
be changed except by subsequent action of the team and is 
binding on the county and on the commissioner.  If the 
commissioner or the county determines that the decision of the 
screening team is not in the best interests of the person, the 
commissioner or the county may seek judicial review of the 
screening team recommendation.  A person or legal representative 
may appeal under section 256.045, subdivision 3 or 4a. 
     (4) For persons who have overriding health care needs or 
behaviors that cause injury to self or others, or cause damage 
to property that is an immediate threat to the physical safety 
of the person or others, the following additional conditions 
must be met: 
    (i) For a person with overriding health care needs, either 
a registered nurse or a licensed physician shall review the 
proposed community services to assure that the medical needs of 
the person have been planned for adequately.  For purposes of 
this paragraph, "overriding health care needs" means a medical 
condition that requires daily clinical monitoring by a licensed 
registered nurse. 
    (ii) For a person with behaviors that cause injury to self 
or others, or cause damage to property that is an immediate 
threat to the physical safety of the person or others, a 
qualified mental retardation professional, as defined in 
paragraph (a), shall review the proposed community services to 
assure that the behavioral needs of the person have been planned 
for adequately.  The qualified mental retardation professional 
must have at least one year of experience in the areas of 
assessment, planning, implementation, and monitoring of 
individual habilitation plans that have used behavior 
intervention techniques. 
    (5) No person with mental retardation or a related 
condition may be discharged from a regional treatment center 
before an appropriate community placement is available to 
receive the person. 
    (6) Effective July 1, 1991, a resident of a regional 
treatment center may not be discharged to a community 
intermediate care facility with a licensed capacity of more than 
15 beds.  Effective July 1, 1993, a resident of a regional 
treatment center may not be discharged to a community 
intermediate care facility with a licensed capacity of more than 
ten beds. 
     (7) If the person, legal representative, parent, or near 
relative of the person proposed to be discharged from a regional 
treatment center objects to the proposed discharge, the 
individual who objects to the discharge may request a review 
under section 256.045, subdivision 4a, and may request 
reimbursement as allowed under section 256.045.  The person must 
not be transferred from a regional treatment center while a 
review or appeal is pending.  Within 30 days of the request for 
a review, the local agency shall conduct a conciliation 
conference and inform the individual who requested the review in 
writing of the action the local agency plans to take.  The 
conciliation conference must be conducted in a manner consistent 
with section 256.045, subdivision 4a.  A person, legal 
representative, parent, or near relative of the person proposed 
to be discharged who is not satisfied with the results of the 
conciliation conference may submit to the commissioner a written 
request for a hearing before a state human services referee 
under section 256.045, subdivision 4a.  The person, legal 
representative, parent, or near relative of the person proposed 
to be discharged may appeal the order to the district court of 
the county responsible for furnishing assistance by serving a 
written copy of a notice of appeal on the commissioner and any 
adverse party of record within 30 days after the day the 
commissioner issued the order and by filing the original notice 
and proof of service with the court administrator of the 
district court.  Judicial review must proceed under section 
256.045, subdivisions 7 to 10.  For a person under public 
guardianship, the ombudsman established under section 245.92 may 
object to a proposed discharge by requesting a review or hearing 
or by appealing to district court as provided in this clause.  
The person must not be transferred from a regional treatment 
center while a conciliation conference or appeal of the 
discharge is pending. 
    Sec. 2.  Minnesota Statutes 1989 Supplement, section 
256B.48, subdivision 6, is amended to read: 
    Subd. 6.  [MEDICARE CERTIFICATION.] (a)  [DEFINITION.] For 
purposes of this subdivision, "nursing facility" means a nursing 
home that is certified as a skilled nursing facility or, after 
September 30, 1990, a nursing home licensed under chapter 144A 
that is certified as a nursing facility.  
    (b)  [FULL MEDICARE PARTICIPATION REQUIRED.] All nursing 
facilities shall fully participate in Medicare part A and part B 
unless, after submitting an application, Medicare certification 
is denied by the federal health care financing administration.  
Medicare review shall be conducted at the time of the annual 
medical assistance review.  Charges for Medicare-covered 
services provided to residents who are simultaneously eligible 
for medical assistance and Medicare must be billed to Medicare 
part A or part B before billing medical assistance.  Medical 
assistance may be billed only for charges not reimbursed by 
Medicare.  
    (c)  [UNTIL SEPTEMBER 30, 1990.] Until September 30, 1990, 
a nursing facility satisfies the requirements of paragraph (b) 
if: (1) at least 50 percent of the facility's beds that are 
licensed under section 144A and certified as skilled nursing 
beds under the medical assistance program are Medicare 
certified; or (2) if a nursing facility's beds are licensed 
under section 144A, and some are medical assistance certified as 
skilled nursing beds and others are Medical assistance certified 
as intermediate care facility I beds, at least 50 percent of the 
facility's total skilled nursing beds and intermediate care 
facility I beds or 100 percent of its skilled nursing beds, 
whichever is less, are Medicare certified. 
    (d)  [OCTOBER 1, 1990, TO JUNE 30, 1991 AFTER SEPTEMBER 30, 
1990.] After September 30, 1990, and until June 30, 1991, a 
nursing facility satisfies the requirements of paragraph (b) if 
at least 50 percent of the facility's beds certified as nursing 
facility beds under the medical assistance program are Medicare 
certified. 
    (e)  [AFTER JUNE 30, 1991.] After June 30, 1991, a nursing 
facility satisfies the requirements of paragraph (b) if 100 
percent of the facility's beds that are certified as nursing 
facility beds under the medical assistance program are Medicare 
certified. 
    (f) [PROHIBITED TRANSFERS.] A resident in a skilled nursing 
bed or, after September 30, 1990, a resident in any nursing 
facility bed, who is eligible for medical assistance and who 
becomes eligible for Medicare has the right to refuse an 
intrafacility skilled nursing bed transfer if the commissioner 
approves the exception request based on written documentation 
submitted by a physician that the transfer would create or 
contribute to a health problem for the resident.  A resident who 
is occupying a skilled nursing bed or, after September 30, 1990, 
a nursing facility bed certified by the medical assistance and 
Medicare programs, has the right to refuse a transfer if the 
resident's bed is needed for a Medicare-eligible patient or 
private-pay patient and if the commissioner approves the 
exception based on written documentation submitted by a 
physician that the transfer would create or contribute to a 
health problem for the resident. [CONFLICT WITH MEDICARE 
DISTINCT PART REQUIREMENTS.] At the request of a facility, the 
commissioner of human services may reduce the 50 percent 
Medicare participation requirement in paragraphs (c) and (d) to 
no less than 20 percent if the commissioner of health determines 
that, due to the facility's physical plant configuration, the 
facility cannot satisfy Medicare distinct part requirements at 
the 50 percent certification level.  To receive a reduction in 
the participation requirement, a facility must demonstrate that 
the reduction will not adversely affect access of 
Medicare-eligible residents to Medicare-certified beds. 
    (g) (f)  [INSTITUTIONS FOR MENTAL DISEASE.] The 
commissioner may grant exceptions to the requirements of 
paragraph (b) for nursing facilities that are designated as 
institutions for mental disease. 
    (h) (g)  [NOTICE OF RIGHTS.] The commissioner shall inform 
recipients of their rights under this subdivision and section 
144.651, subdivision 29. 
     Sec. 3.  [PLAN FOR DOWNSIZING INTERMEDIATE CARE 
FACILITIES.] 
    The commissioner of human services, in consultation with 
representatives of intermediate care facilities, parents, 
advocates, and other interested persons and organizations, shall 
develop a plan to eliminate discharges from regional treatment 
centers to larger community intermediate care facilities.  The 
plan must be presented to the legislature by January 1, 1991. 
    Presented to the governor April 28, 1990 
    Signed by the governor May 4, 1990, 11:04 p.m.