Minnesota Session Laws - 1992, Regular Session

  

                         Laws of Minnesota 1992 

                        CHAPTER 391-S.F.No. 2337 
           An act relating to human services; providing for 
          medical assistance coverage of home health services 
          delivered in a facility under certain circumstances; 
          providing for medical assistance coverage of personal 
          care services provided outside the home when 
          authorized by the responsible party; allowing foster 
          care providers to deliver personal care services if 
          monitored; defining responsible party; allowing 
          recipients to request continuation of services at a 
          previously authorized level while an appeal is 
          pending; requiring cost effectiveness of services to 
          be considered; amending Minnesota Statutes 1991 
          Supplement, sections 256B.0625, subdivisions 6a and 
          19a; and 256B.0627, subdivisions 1, 4, 5, and 6. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
     Section 1.  Minnesota Statutes 1991 Supplement, section 
256B.0625, subdivision 6a, is amended to read: 
    Subd. 6a.  [HOME HEALTH SERVICES.] Home health services are 
those services specified in Minnesota Rules, part 9505.0290. 
Medical assistance covers home health services at a recipient's 
home residence.  Medical assistance does not cover home health 
services at a hospital, nursing facility, intermediate care 
facility, or a health care facility licensed by the commissioner 
of health, unless the program is funded under a home- and 
community-based services waiver or unless the commissioner of 
human services has prior authorized skilled nurse visits for 
less than 90 days for a resident at an intermediate care 
facility for persons with mental retardation, to prevent an 
admission to a hospital or nursing facility.  Home health 
services must be provided by a Medicare certified home health 
agency.  All nursing and home health aide services must be 
provided according to section 256B.0627. 
    Sec. 2.  Minnesota Statutes 1991 Supplement, section 
256B.0625, subdivision 19a, is amended to read: 
    Subd. 19a.  [PERSONAL CARE SERVICES.] Medical assistance 
covers personal care services in a recipient's home.  Recipients 
who can direct their own care, or persons who cannot direct 
their own care when accompanied authorized by the responsible 
party, may use approved hours outside the home when normal life 
activities take them outside the home and when, without the 
provision of personal care, their health and safety would be 
jeopardized.  Medical assistance does not cover personal care 
services at a hospital, nursing facility, intermediate care 
facility or a health care facility licensed by the commissioner 
of health, except as authorized in section 256B.64 for 
ventilator-dependent recipients in hospitals.  Total hours of 
service and payment allowed for services outside the home cannot 
exceed that which is otherwise allowed for personal care 
services in an in-home setting according to section 256B.0627.  
All personal care services must be provided according to section 
256B.0627.  Personal care services may not be reimbursed if the 
personal care assistant is the spouse of the recipient or the 
parent of a recipient under age 18, the responsible party, or 
the foster care provider of a recipient who cannot direct their 
the recipient's own care or the recipient's legal guardian 
unless, in the case of a foster provider, a county or state case 
manager visits the recipient as needed, but no less than every 
six months, to monitor the health and safety of the recipient 
and to ensure the goals of the care plan are met.  Parents of 
adult recipients, adult children of the recipient or adult 
siblings of the recipient may be reimbursed for personal care 
services if they are granted a waiver under section 
256B.0627.  An exception for foster care providers may be made 
according to section 256B.0627, subdivision 5, paragraph (j). 
     Sec. 3.  Minnesota Statutes 1991 Supplement, section 
256B.0627, subdivision 1, is amended to read: 
    Subdivision 1.  [DEFINITION.] (a) "Home care services" 
means a health service, determined by the commissioner as 
medically necessary, that is ordered by a physician and 
documented in a care plan that is reviewed by the physician at 
least once every 60 days for the provision of home health 
services, or private duty nursing, or at least once every 365 
days for personal care.  Home care services are provided to the 
recipient at the recipient's residence that is a place other 
than a hospital or long-term care facility or as specified in 
section 256B.0625.  
    (b) "Medically necessary" has the meaning given in 
Minnesota Rules, parts 9505.0170 to 9505.0475.  
    (c) "Care plan" means a written description of the services 
needed which shall include is signed by the recipient or 
responsible party and includes a detailed description of the 
covered home care services, who is providing the services, 
frequency of those services, and duration of those services.  
The care plan shall also include, and expected outcomes and 
goals including expected date of goal accomplishment.  
    (d) "Responsible party" means an individual residing with a 
recipient of personal care services who is capable of providing 
the supportive care necessary to assist the recipient to live in 
the community, is at least 18 years old, and is not a personal 
care assistant.  Responsible parties who are parents of minors 
or guardians of minors or incapacitated persons may delegate the 
responsibility to another adult during a temporary absence of at 
least 24 hours but not more than six months.  The person 
delegated as a responsible party must be able to meet the 
definition of responsible party, except that the delegated 
responsible party is required to reside with the recipient only 
while serving as the responsible party.  Foster care license 
holders may be designated the responsible party for residents of 
the foster care home if case management is provided as required 
in section 256B.0625, subdivision 19a.  For persons who, as of 
April 1, 1992, are sharing personal care services in order to 
obtain the availability of 24-hour coverage, an employee of the 
personal care provider organization may be designated as the 
responsible party if case management is provided as required in 
section 256B.0625, subdivision 19a. 
    Sec. 4.  Minnesota Statutes 1991 Supplement, section 
256B.0627, subdivision 4, is amended to read: 
    Subd. 4.  [PERSONAL CARE SERVICES.] (a) The personal care 
services that are eligible for payment are the following:  
    (1) bowel and bladder care; 
    (2) skin care to maintain the health of the skin; 
    (3) range of motion exercises; 
    (4) respiratory assistance; 
    (5) transfers; 
    (6) bathing, grooming, and hairwashing necessary for 
personal hygiene; 
     (7) turning and positioning; 
     (8) assistance with furnishing medication that is normally 
self-administered; 
     (9) application and maintenance of prosthetics and 
orthotics; 
     (10) cleaning medical equipment; 
     (11) dressing or undressing; 
     (12) assistance with food, nutrition, and diet activities; 
     (13) accompanying a recipient to obtain medical diagnosis 
or treatment; 
    (14) helping the recipient to complete daily living skills 
such as personal and oral hygiene and medication schedules; 
    (15) supervision and observation that are medically 
necessary because of the recipient's diagnosis or disability; 
and 
    (16) incidental household services that are an integral 
part of a personal care service described in clauses (1) to (15).
    (b) The personal care services that are not eligible for 
payment are the following:  
    (1) personal care services that are not in the care plan 
developed by the supervising registered nurse in consultation 
with the personal care assistants and the recipient or the 
responsible party directing the care of the recipient; 
    (2) services that are not supervised by the registered 
nurse; 
    (3) services provided by the recipient's spouse, legal 
guardian, or parent of a minor child; 
    (4) services provided by a foster care provider of a 
recipient who cannot direct their own care, unless prior 
authorized by the commissioner under paragraph (j) monitored by 
a county or state case manager under section 256B.0625, 
subdivision 19a; 
    (5) sterile procedures; 
    (6) injections of fluids into veins, muscles, or skin; 
    (7) services provided by parents of adult recipients, adult 
children, or adult siblings, unless these relatives meet one of 
the following hardship criteria and the commissioner waives this 
requirement: 
    (i) the relative resigns from a part-time or full-time job 
to provide personal care for the recipient; 
    (ii) the relative goes from a full-time to a part-time job 
with less compensation to provide personal care for the 
recipient; 
    (iii) the relative takes a leave of absence without pay to 
provide personal care for the recipient; 
    (iv) the relative incurs substantial expenses by providing 
personal care for the recipient; or 
    (v) because of labor conditions, the relative is needed in 
order to provide an adequate number of qualified personal care 
assistants to meet the medical needs of the recipient; 
    (8) homemaker services that are not an integral part of a 
personal care services; and 
    (9) home maintenance, or chore services. 
    Sec. 5.  Minnesota Statutes 1991 Supplement, section 
256B.0627, subdivision 5, is amended to read: 
    Subd. 5.  [LIMITATION ON PAYMENTS.] Medical assistance 
payments for home care services shall be limited according to 
this subdivision.  
    (a)  [EXEMPTION FROM PAYMENT LIMITATIONS.] The level, or 
the number of hours or visits of a specific service, of home 
care services to a recipient that began before and is continued 
without increase on or after December 1987, shall be exempt from 
the payment limitations of this section, as long as the services 
are medically necessary.  
     (b)  [LIMITS ON SERVICES WITHOUT PRIOR AUTHORIZATION.] A 
recipient may receive the following amounts of home care 
services during a calendar year: 
     (1) a total of 40 home health aide visits, skilled nurse 
visits, health promotions, or health assessments under section 
256B.0625, subdivision 6a; and 
     (2) a total of ten hours of nursing supervision under 
section 256B.0625, subdivision 7 or 19a.  
     (c)  [PRIOR AUTHORIZATION; EXCEPTIONS.] All home care 
services above the limits in paragraph (b) must receive the 
commissioner's prior authorization, except when: 
     (1) the home care services were required to treat an 
emergency medical condition that if not immediately treated 
could cause a recipient serious physical or mental disability, 
continuation of severe pain, or death.  The provider must 
request retroactive authorization no later than five working 
days after giving the initial service.  The provider must be 
able to substantiate the emergency by documentation such as 
reports, notes, and admission or discharge histories; 
     (2) the home care services were provided on or after the 
date on which the recipient's eligibility began, but before the 
date on which the recipient was notified that the case was 
opened.  Authorization will be considered if the request is 
submitted by the provider within 20 working days of the date the 
recipient was notified that the case was opened; or 
     (3) a third party payor for home care services has denied 
or adjusted a payment.  Authorization requests must be submitted 
by the provider within 20 working days of the notice of denial 
or adjustment.  A copy of the notice must be included with the 
request. 
     (d)  [RETROACTIVE AUTHORIZATION.] A request for retroactive 
authorization under paragraph (c) will be evaluated according to 
the same criteria applied to prior authorization requests.  
Implementation of this provision shall begin no later than 
October 1, 1991, except that recipients who are currently 
receiving medically necessary services above the limits 
established under this subdivision may have a reasonable amount 
of time to arrange for waivered services under section 256B.49 
or to establish an alternative living arrangement.  All current 
recipients shall be phased down to the limits established under 
paragraph (b) on or before April 1, 1992. 
     (e)  [ASSESSMENT AND CARE PLAN.] The home care provider 
shall conduct an assessment and complete a care plan using forms 
specified by the commissioner.  For the recipient to receive, or 
continue to receive, home care services, the provider must 
submit evidence necessary for the commissioner to determine the 
medical necessity of the home care services.  The provider shall 
submit to the commissioner the assessment, the care 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. 
    (f)  [PRIOR AUTHORIZATION.] The commissioner, or the 
commissioner's designee, shall review the assessment, the care 
plan, and any additional information that is submitted.  The 
commissioner shall, within 30 days after receiving a request for 
prior authorization, authorize home care services as follows:  
    (1)  [HOME HEALTH SERVICES.] All home health services 
provided by a nurse or a home health aide that exceed the limits 
established in paragraph (b) must be prior authorized by the 
commissioner or the commissioner's designee.  Prior 
authorization must be based on medical necessity and 
cost-effectiveness when compared with other care options.  When 
home health services are used in combination with personal care 
and private duty nursing, the cost of all home care services 
shall be considered for cost effectiveness. 
    (2)  [PERSONAL CARE SERVICES.] (i) All personal care 
services must be prior authorized by the commissioner or the 
commissioner's designee except for the limits on supervision 
established in paragraph (b).  The amount of personal care 
services authorized must be based on the recipient's case mix 
classification according to section 256B.0911, except that 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 and the amount of assistance needed is similar to the 
assistance appropriate for a typical child of the same age.  
Based on medical necessity, the commissioner may authorize: 
    (A) up to two times the average number of direct care hours 
provided in nursing facilities for the recipient's case mix 
level; 
     (B) up to three times the average number of direct care 
hours provided in nursing facilities for recipients who have 
complex medical needs; 
     (C) up to 60 percent of the average reimbursement rate, as 
of July 1, 1991, for care provided in a regional treatment 
center for recipients who have complex behaviors; 
     (D) up to the amount the commissioner would pay, as of July 
1, 1991, for care provided in a regional treatment center for 
recipients referred to the commissioner by a regional treatment 
center preadmission evaluation team.  For purposes of this 
clause, home care services means all services provided in the 
home or community that would be included in the payment to a 
regional treatment center; or 
     (E) up to the amount medical assistance would reimburse for 
facility care for recipients referred to the commissioner by a 
preadmission screening team established under section 256B.091 
or 256B.092. 
     (ii) The number of direct care hours shall be determined 
according to annual cost reports which are submitted to the 
department by nursing facilities each year.  The average number 
of direct care hours, as established by May 1, shall be 
incorporated into the home care limits on July 1 each year. 
     (iii) The case mix level shall be determined by the 
commissioner or the commissioner's designee based on information 
submitted to the commissioner by the personal care provider on 
forms specified by the commissioner.  The forms shall be a 
combination of current assessment tools developed under sections 
256B.0911 and 256B.501 with an addition for seizure activity 
that will assess the frequency and severity of seizure activity 
and with adjustments, additions, and clarifications that are 
necessary to reflect the needs and conditions of children and 
nonelderly adults who need home care.  The commissioner shall 
establish these forms and protocols under this section and shall 
use the advisory group established in section 256B.04, 
subdivision 16, for consultation in establishing the forms and 
protocols by October 1, 1991. 
     (iv) A recipient shall qualify as having complex medical 
needs if they require the care required is difficult to perform 
and requires more time than community-based standards allow or 
the recipient's condition or treatment requires more training or 
skill than would ordinarily be required and the recipient needs 
or has one or more of the following: 
     (A) daily tube feedings; 
     (B) daily parenteral therapy; 
     (C) wound or decubiti care; 
     (D) postural drainage, percussion, nebulizer treatments, 
suctioning, tracheotomy care, oxygen, mechanical ventilation; 
     (E) catheterization; 
    (F) ostomy care; or 
     (G) quadriplegia; or 
    (G) (H) other comparable medical conditions or treatments 
the commissioner determines would otherwise require 
institutional care. 
     (v) A recipient shall qualify as having complex behavior if 
the recipient exhibits on a daily basis the following: 
     (A) self-injurious behavior; 
     (B) unusual or repetitive habits; 
     (C) withdrawal behavior; 
     (D) hurtful behavior to others; 
     (E) socially or offensive behavior; 
     (F) destruction of property; or 
     (G) a need for constant one-to-one supervision for 
self-preservation. 
     (vi) The complex behaviors in clauses (A) to (G) have the 
meanings developed under section 256B.501. 
     (3)  [PRIVATE DUTY NURSING SERVICES.] All private duty 
nursing services shall be prior authorized by the commissioner 
or the commissioner's designee.  Prior authorization for private 
duty nursing services shall be based on medical necessity and 
cost-effectiveness when compared with alternative care options.  
The commissioner may authorize medically necessary private duty 
nursing services when: 
     (i) the recipient requires more individual and continuous 
care than can be provided during a nurse visit; or 
     (ii) the cares are outside of the scope of services that 
can be provided by a home health aide or personal care assistant.
     The commissioner may authorize up to 16 hours per day of 
private duty nursing services or up to 24 hours per day of 
private duty nursing services until such time as the 
commissioner is able to make a determination of eligibility for 
recipients who are applying for home care services under the 
community alternative care program developed under section 
256B.49, or until it is determined that a health benefit plan is 
required to pay for medically necessary nursing services.  
Recipients who are eligible for the community alternative care 
program may not receive more hours of nursing under this section 
than would otherwise be authorized under section 256B.49. 
    (4)  [VENTILATOR-DEPENDENT RECIPIENTS.] If the recipient is 
ventilator-dependent, the monthly medical assistance 
authorization for home care services shall not exceed what the 
commissioner would pay for care at the highest cost hospital 
designated as a long-term hospital under the Medicare program.  
For purposes of this clause, home care services means all 
services provided in the home that would be included in the 
payment for care at the long-term hospital.  
"Ventilator-dependent" means an individual who receives 
mechanical ventilation for life support at least six hours per 
day and is expected to be or has been dependent for at least 30 
consecutive days.  
    (g)  [PRIOR AUTHORIZATION; TIME LIMITS.] The commissioner 
or the commissioner's designee shall determine the time period 
for which a prior authorization shall remain valid.  If the 
recipient continues to require home care services beyond the 
duration of the prior authorization, the home care provider must 
request a new prior authorization through the process described 
above.  Under no circumstances shall a prior authorization be 
valid for more than 12 months.  A recipient who appeals a 
reduction in previously authorized home care services may 
request that the previously authorized services, other than 
temporary services under paragraph (i), be continued pending an 
appeal under section 256.045, subdivision 10.  
    (h)  [APPROVAL OF HOME CARE SERVICES.] The commissioner or 
the commissioner's designee shall determine the medical 
necessity of home care services, the level of caregiver 
according to subdivision 2, and the institutional comparison 
according to this subdivision, the cost effectiveness of 
services, and the amount, scope, and duration of home care 
services reimbursable by medical assistance, based on the 
assessment, the care plan, the recipient's age, the cost of 
services, the recipient's medical condition, and diagnosis or 
disability.  The commissioner may publish additional criteria 
for determining medical necessity according to section 256B.04. 
    (i)  [PRIOR AUTHORIZATION REQUESTS; TEMPORARY SERVICES.] 
The department has 30 days from receipt of the request to 
complete the prior authorization, during which time it may 
approve a temporary level of home care service.  Authorization 
under this authority for a temporary level of home care services 
is limited to the time specified by the commissioner.  Providers 
may request a temporary authorization for home care services by 
telephone.  The commissioner may approve a temporary level of 
home care services based on the assessment and care plan 
information provided by an appropriately licensed nurse.  
Authorization for a temporary level of home care services is 
limited to the time specified by the commissioner, but shall not 
exceed 30 days.  The level of services authorized under this 
provision shall have no bearing on a future prior authorization. 
    (j)  [PRIOR AUTHORIZATION REQUIRED IN FOSTER CARE SETTING.] 
Home care services provided in an adult or child foster care 
setting must receive prior authorization by the department 
according to the limits established in paragraph (b). 
     The commissioner may not authorize: 
     (1) home care services that are the responsibility of the 
foster care provider under the terms of the foster care 
placement agreement and administrative rules; 
     (2) personal care services when the foster care license 
holder is also the personal care provider or personal care 
assistant unless the recipient can direct the recipient's own 
care, or the recipient is referred to the commissioner by a case 
management is provided as required in section 256B.0625, 
subdivision 19a regional treatment center preadmission 
evaluation team; 
     (3) personal care services when the responsible party is an 
employee of, or under contract with, or has any direct or 
indirect financial relationship with the personal care provider 
or personal care assistant, unless the recipient is referred to 
the commissioner by a regional treatment center preadmission 
evaluation team case management is provided as required in 
section 256B.0625, subdivision 19a; 
     (4) home care services when the number of foster care 
residents is greater than four unless the county responsible for 
the recipient's foster placement made the placement prior to 
April 1, 1992, requests that home care services be provided, and 
case management is provided as required in section 256B.0625, 
subdivision 19a; or 
     (5) home care services when combined with foster care 
payments, less the base rate other than room and board payments 
plus the cost of home- and community-based waivered services 
unless the costs of home care services and waivered services are 
combined and managed under the waiver program, that exceed the 
total amount that public funds would pay for the recipient's 
care in a medical institution. 
    Sec. 6.  Minnesota Statutes 1991 Supplement, section 
256B.0627, subdivision 6, is amended to read: 
    Subd. 6.  [RECOVERY OF EXCESSIVE PAYMENTS.] The 
commissioner shall seek monetary recovery from providers of 
payments made for services which exceed the limits established 
in this section.  This subdivision does not apply to services 
provided to a recipient at the previously authorized level 
pending an appeal under section 256.045, subdivision 10. 
    Sec. 7.  [EFFECTIVE DATE.] 
    Sections 1 to 6 are effective the day following final 
enactment. 
    Presented to the governor March 31, 1992 
    Signed by the governor March 31, 1992, 5:58 p.m.