1999 Minnesota Statutes

     256B.0627 Covered service; home care services. 

    Subdivision 1.    Definition.  (a) "Assessment" means a 
 review and evaluation of a recipient's need for home care 
 services conducted in person.  Assessments for private duty 
 nursing shall be conducted by a registered private duty nurse.  
 Assessments for home health agency services shall be conducted 
 by a home health agency nurse.  Assessments for personal care 
 assistant services shall be conducted by the county public 
 health nurse or a certified public health nurse under contract 
 with the county.  A face-to-face assessment must include:  a 
 health status assessment and determination of need, evaluation 
 of service outcomes, collection of case data, identification of 
 appropriate services and service plan development or 
 modification, coordination of services, referrals and follow-up 
 to appropriate payers and community resources, completion of 
 required reports, obtaining service authorization, and consumer 
 education.  A face-to-face assessment for personal care services 
 is conducted on those recipients who have never had a county 
 public health nurse assessment.  A face-to-face assessment must 
 occur at least annually or when there is a significant change in 
 the recipient's condition or when there is a change in the need 
 for personal care assistant services.  A service update may 
 substitute for the annual face-to-face assessment when there is 
 not a significant change in recipient condition or a change in 
 the need for personal care assistant service.  A service update 
 or review for temporary increase includes a review of initial 
 baseline data, evaluation of service outcomes, redetermination 
 of service need, modification of service plan and appropriate 
 referrals, update of initial forms, obtaining service 
 authorization, and on going consumer education.  Assessments for 
 medical assistance home care services for mental retardation or 
 related conditions and alternative care services for 
 developmentally disabled home and community-based waivered 
 recipients may be conducted by the county public health nurse to 
 ensure coordination and avoid duplication.  Assessments must be 
 completed on forms provided by the commissioner within 30 days 
 of a request for home care services by a recipient or 
 responsible party. 

    (b) "Care plan" means a written description of personal 
 care assistant services developed by the qualified professional 
 with the recipient or responsible party to be used by the 
 personal care assistant with a copy provided to the recipient or 
 responsible party. 

    (c) "Home care services" means a health service, determined 
 by the commissioner as medically necessary, that is ordered by a 
 physician and documented in a service plan that is reviewed by 
 the physician at least once every 62 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.  

    (d) "Medically necessary" has the meaning given in 
 Minnesota Rules, parts 9505.0170 to 9505.0475.  

    (e) "Personal care assistant" means a person who:  (1) is 
 at least 18 years old, except for persons 16 to 18 years of age 
 who participated in a related school-based job training program 
 or have completed a certified home health aide competency 
 evaluation; (2) is able to effectively communicate with the 
 recipient and personal care provider organization; (3) effective 
 July 1, 1996, has completed one of the training requirements as 
 specified in Minnesota Rules, part 9505.0335, subpart 3, items A 
 to D; (4) has the ability to, and provides covered personal care 
 services according to the recipient's care plan, responds 
 appropriately to recipient needs, and reports changes in the 
 recipient's condition to the supervising qualified professional; 
 (5) is not a consumer of personal care services; and (6) is 
 subject to criminal background checks and procedures specified 
 in section 245A.04.  

    (f) "Personal care provider organization" means an 
 organization enrolled to provide personal care services under 
 the medical assistance program that complies with the 
 following:  (1) owners who have a five percent interest or more, 
 and managerial officials are subject to a background study as 
 provided in section 245A.04.  This applies to currently enrolled 
 personal care provider organizations and those agencies seeking 
 enrollment as a personal care provider organization.  An 
 organization will be barred from enrollment if an owner or 
 managerial official of the organization has been convicted of a 
 crime specified in section 245A.04, or a comparable crime in 
 another jurisdiction, unless the owner or managerial official 
 meets the reconsideration criteria specified in section 245A.04; 
 (2) the organization must maintain a surety bond and liability 
 insurance throughout the duration of enrollment and provides 
 proof thereof.  The insurer must notify the department of human 
 services of the cancellation or lapse of policy; and (3) the 
 organization must maintain documentation of services as 
 specified in Minnesota Rules, part 9505.2175, subpart 7, as well 
 as evidence of compliance with personal care assistant training 
 requirements. 

    (g) "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. 

    (h) "Service plan" means a written description of the 
 services needed based on the assessment developed by the nurse 
 who conducts the assessment together with the recipient or 
 responsible party.  The service plan shall include a description 
 of the covered home care services, frequency and duration of 
 services, and expected outcomes and goals.  The recipient and 
 the provider chosen by the recipient or responsible party must 
 be given a copy of the completed service plan within 30 calendar 
 days of the request for home care services by the recipient or 
 responsible party. 

    (i) "Skilled nurse visits" are provided in a recipient's 
 residence under a plan of care or service plan that specifies a 
 level of care which the nurse is qualified to provide.  These 
 services are: 

    (1) nursing services according to the written plan of care 
 or service plan and accepted standards of medical and nursing 
 practice in accordance with chapter 148; 

    (2) services which due to the recipient's medical condition 
 may only be safely and effectively provided by a registered 
 nurse or a licensed practical nurse; 

    (3) assessments performed only by a registered nurse; and 

    (4) teaching and training the recipient, the recipient's 
 family, or other caregivers requiring the skills of a registered 
 nurse or licensed practical nurse.  

    Subd. 2.    Services covered.  Home care services 
 covered under this section include:  

    (1) nursing services under section 256B.0625, subdivision 
 6a; 

    (2) private duty nursing services under section 256B.0625, 
 subdivision 7; 

    (3) home health aide services under section 256B.0625, 
 subdivision 6a; 

    (4) personal care services under section 256B.0625, 
 subdivision 19a; 

    (5) supervision of personal care assistant services 
 provided by a qualified professional under section 256B.0625, 
 subdivision 19a; 

    (6) consulting professional of personal care assistant 
 services under the fiscal agent option as specified in 
 subdivision 10; 

    (7) face-to-face assessments by county public health nurses 
 for services under section 256B.0625, subdivision 19a; and 

    (8) service updates and review of temporary increases for 
 personal care assistant services by the county public health 
 nurse for services under section 256B.0625, subdivision 19a. 

    Subd. 3. Repealed, 1991 c 292 art 7 s 26 

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

    (4) respiratory assistance; 

    (5) transfers and ambulation; 

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

    (7) turning and positioning; 

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

    (9) application and maintenance of prosthetics and 
 orthotics; 

    (10) cleaning medical equipment; 

    (11) dressing or undressing; 

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

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

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

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

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

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

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

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

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

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

    (1) services not ordered by the physician; 

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

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

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

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

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

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

    (8) sterile procedures; 

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

    (10) services provided by parents of adult recipients, 
 adult children, or siblings of the recipient, 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, special language needs, or 
 intermittent hours of care needed, the relative is needed in 
 order to provide an adequate number of qualified personal care 
 assistants to meet the medical needs of the recipient; 

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

    (12) home maintenance, or chore services; 

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

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

    Subd. 5.    Limitation on payments.  Medical assistance 
 payments for home care services shall be limited according to 
 this subdivision.  

    (a)    Limits on services without prior authorization.  
 A recipient may receive the following home care services during 
 a calendar year: 

    (1) up to two face-to-face assessments to determine a 
 recipient's need for personal care assistant services; 

    (2) one service update done to determine a recipient's need 
 for personal care services; and 

    (3) up to five skilled nurse visits.  

    (b)    Prior authorization; exceptions.  All home care 
 services above the limits in paragraph (a) 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; 

    (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; 

    (4) the commissioner has determined that a county or state 
 human services agency has made an error; or 

    (5) the professional nurse determines an immediate need for 
 up to 40 skilled nursing or home health aide visits per calendar 
 year and submits a request for authorization within 20 working 
 days of the initial service date, and medical assistance is 
 determined to be the appropriate payer. 

    (c)    Retroactive authorization.  A request for 
 retroactive authorization will be evaluated according to the 
 same criteria applied to prior authorization requests.  

    (d)    Assessment and service plan.  Assessments under 
 section 256B.0627, subdivision 1, paragraph (a), shall be 
 conducted initially, and at least annually thereafter, in person 
 with the recipient and result in a completed service plan using 
 forms specified by the commissioner.  Within 30 days of 
 recipient or responsible party request for home care services, 
 the assessment, the service plan, and other information 
 necessary to determine medical necessity such as diagnostic or 
 testing information, social or medical histories, and hospital 
 or facility discharge summaries shall be submitted to the 
 commissioner.  For personal care services: 

    (1) The amount and type of service authorized based upon 
 the assessment and service plan will follow the recipient if the 
 recipient chooses to change providers.  

    (2) If the recipient's medical need changes, the 
 recipient's provider may assess the need for a change in service 
 authorization and request the change from the county public 
 health nurse.  Within 30 days of the request, the public health 
 nurse will determine whether to request the change in services 
 based upon the provider assessment, or conduct a home visit to 
 assess the need and determine whether the change is appropriate. 

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

    (e)    Prior authorization.  The commissioner, or the 
 commissioner's designee, shall review the assessment, service 
 update, request for temporary services, service plan, and any 
 additional information that is submitted.  The commissioner 
 shall, within 30 days after receiving a complete request, 
 assessment, and service plan, authorize home care services as 
 follows:  

    (1)    Home health services.  All home health services 
 provided by a licensed nurse or a home health aide 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.  The commissioner 
 shall limit nurse and home health aide visits to no more than 
 one visit each per day. 

    (2)    Personal care services.  (i) All personal care 
 services and supervision by a qualified professional must be 
 prior authorized by the commissioner or the commissioner's 
 designee except for the assessments established in paragraph 
 (a).  The amount of personal care services authorized must be 
 based on the recipient's home care rating.  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 comparable 
 case mix level; or 

    (B) up to three times the average number of direct care 
 hours provided in nursing facilities for recipients who have 
 complex medical needs or are dependent in at least seven 
 activities of daily living and need physical assistance with 
 eating or have a neurological diagnosis; or 

    (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 Level I behavior, plus any 
 inflation adjustment as provided by the legislature for personal 
 care service; or 

    (D) up to the amount the commissioner would pay, as of July 
 1, 1991, plus any inflation adjustment provided for home care 
 services, 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.0911 
 or 256B.092; and 

    (F) a reasonable amount of time for the provision of 
 supervision by a qualified professional of personal care 
 services.  

    (ii) The number of direct care hours shall be determined 
 according to the annual cost report submitted to the department 
 by nursing facilities.  The average number of direct care hours, 
 as established by May 1, 1992, shall be calculated and 
 incorporated into the home care limits on July 1, 1992.  These 
 limits shall be calculated to the nearest quarter hour. 

    (iii) The home care rating shall be determined by the 
 commissioner or the commissioner's designee based on information 
 submitted to the commissioner by the county public health nurse 
 on forms specified by the commissioner.  The home care rating 
 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 recipients who need home care including children 
 and adults under 65 years of age.  The commissioner shall 
 establish these forms and protocols under this section and shall 
 use an advisory group, including representatives of recipients, 
 providers, and counties, for consultation in establishing and 
 revising the forms and protocols. 

    (iv) A recipient shall qualify as having complex medical 
 needs if the care required is difficult to perform and because 
 of recipient's medical condition requires more time than 
 community-based standards allow or requires more 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; 

    (G) quadriplegia; or 

    (H) other comparable medical conditions or treatments the 
 commissioner determines would otherwise require institutional 
 care.  

    (v) A recipient shall qualify as having Level I behavior if 
 there is reasonable supporting evidence that the recipient 
 exhibits, or that without supervision, observation, or 
 redirection would exhibit, one or more of the following 
 behaviors that cause, or have the potential to cause: 

    (A) injury to the recipient's own body; 

    (B) physical injury to other people; or 

    (C) destruction of property. 

    (vi) Time authorized for personal care relating to Level I 
 behavior in subclause (v), items (A) to (C), shall be based on 
 the predictability, frequency, and amount of intervention 
 required. 

    (vii) A recipient shall qualify as having Level II behavior 
 if the recipient exhibits on a daily basis one or more of the 
 following behaviors that interfere with the completion of 
 personal care services under subdivision 4, paragraph (a): 

    (A) unusual or repetitive habits; 

    (B) withdrawn behavior; or 

    (C) offensive behavior. 

    (viii) A recipient with a home care rating of Level II 
 behavior in subclause (vii), items (A) to (C), shall be rated as 
 comparable to a recipient with complex medical needs under 
 subclause (iv).  If a recipient has both complex medical needs 
 and Level II behavior, the home care rating shall be the next 
 complex category up to the maximum rating under subclause (i), 
 item (B). 

    (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 in quarter-hour units 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: 

    (A) up to two times the average amount of direct care hours 
 provided in nursing facilities statewide for case mix 
 classification "K" as established by the annual cost report 
 submitted to the department by nursing facilities in May 1992; 

    (B) private duty nursing in combination with other home 
 care services up to the total cost allowed under clause (2); 

    (C) up to 16 hours per day if the recipient requires more 
 nursing than the maximum number of direct care hours as 
 established in item (A) and the recipient meets the hospital 
 admission criteria established under Minnesota Rules, parts 
 9505.0500 to 9505.0540.  

    The commissioner may authorize up to 16 hours per day of 
 medically necessary private duty nursing services or up to 24 
 hours per day of medically necessary private duty nursing 
 services until such time as the commissioner is able to make a 
 determination of eligibility for recipients who are 
 cooperatively applying for home care services under the 
 community alternative care program developed under section 
 256B.49, or until it is determined by the appropriate regulatory 
 agency that a health benefit plan is or is not required to pay 
 for appropriate medically necessary health care services.  
 Recipients or their representatives must cooperatively assist 
 the commissioner in obtaining this determination.  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.  

    (f)    Prior authorization; time limits.  The 
 commissioner or the commissioner's designee shall determine the 
 time period for which a prior authorization shall be effective.  
 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.  Under no circumstances, 
 other than the exceptions in paragraph (b), shall a prior 
 authorization be valid prior to the date the commissioner 
 receives the request or for more than 12 months.  A recipient 
 who appeals a reduction in previously authorized home care 
 services may continue previously authorized services, other than 
 temporary services under paragraph (h), pending an appeal under 
 section 256.045.  The commissioner must provide a detailed 
 explanation of why the authorized services are reduced in amount 
 from those requested by the home care provider.  

    (g)    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, primary payer coverage determination information as 
 required, the service 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. 

    (h)    Prior authorization requests; temporary services. 
  The agency nurse, the independently enrolled private duty 
 nurse, or county public health nurse 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 service or care plan information, 
 and primary payer coverage determination information as required.
 Authorization for a temporary level of home care services 
 including nurse supervision is limited to the time specified by 
 the commissioner, but shall not exceed 45 days, unless extended 
 because the county public health nurse has not completed the 
 required assessment and service plan, or the commissioner's 
 determination has not been made.  The level of services 
 authorized under this provision shall have no bearing on a 
 future prior authorization. 

    (i)    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 (a). 

    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.  Requests for home 
 care services for recipients residing in a foster care setting 
 must include the foster care placement agreement and 
 determination of difficulty of care; 

    (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 case management is provided as required in section 
 256B.0625, subdivision 19a; 

    (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 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, other than room and board payments that exceed the 
 total amount that public funds would pay for the recipient's 
 care in a medical institution. 

    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. 

    Subd. 7.    Noncovered home care services.  The 
 following home care services are not eligible for payment under 
 medical assistance:  

    (1) skilled nurse visits for the sole purpose of 
 supervision of the home health aide; 

    (2) a skilled nursing visit: 

    (i) only for the purpose of monitoring medication 
 compliance with an established medication program for a 
 recipient; or 

    (ii) to administer or assist with medication 
 administration, including injections, prefilling syringes for 
 injections, or oral medication set-up of an adult recipient, 
 when as determined and documented by the registered nurse, the 
 need can be met by an available pharmacy or the recipient is 
 physically and mentally able to self-administer or prefill a 
 medication; 

    (3) home care services to a recipient who is eligible for 
 covered services including hospice, if elected by the recipient, 
 under the Medicare program or any other insurance held by the 
 recipient; 

    (4) services to other members of the recipient's household; 

    (5) a visit made by a skilled nurse solely to train other 
 home health agency workers; 

    (6) any home care service included in the daily rate of the 
 community-based residential facility where the recipient is 
 residing; 

    (7) nursing and rehabilitation therapy services that are 
 reasonably accessible to a recipient outside the recipient's 
 place of residence, excluding the assessment, counseling and 
 education, and personal care; 

    (8) any home health agency service, excluding personal care 
 assistant services and private duty nursing services, which are 
 performed in a place other than the recipient's residence; and 

    (9) Medicare evaluation or administrative nursing visits on 
 dual-eligible recipients that do not qualify for Medicare visit 
 billing. 

    Subd. 8.    Shared personal care assistant services.  (a)
 Medical assistance payments for shared personal care assistance 
 services shall be limited according to this subdivision. 

    (b) Recipients of personal care assistant services may 
 share staff and the commissioner shall provide a rate system for 
 shared personal care assistant services.  For two persons 
 sharing services, the rate paid to a provider shall not exceed 
 1-1/2 times the rate paid for serving a single individual, and 
 for three persons sharing services, the rate paid to a provider 
 shall not exceed twice the rate paid for serving a single 
 individual.  These rates apply only to situations in which all 
 recipients were present and received shared services on the date 
 for which the service is billed.  No more than three persons may 
 receive shared services from a personal care assistant in a 
 single setting. 

    (c) Shared service is the provision of personal care 
 services by a personal care assistant to two or three recipients 
 at the same time and in the same setting.  For the purposes of 
 this subdivision, "setting" means: 

    (1) the home or foster care home of one of the individual 
 recipients; or 

    (2) a child care program in which all recipients served by 
 one personal care assistant are participating, which is licensed 
 under chapter 245A or operated by a local school district or 
 private school.  

    The provisions of this subdivision do not apply when a 
 personal care assistant is caring for multiple recipients in 
 more than one setting. 

    (d) The recipient or the recipient's responsible party, in 
 conjunction with the county public health nurse, shall determine:

    (1) whether shared personal care assistant services is an 
 appropriate option based on the individual needs and preferences 
 of the recipient; and 

    (2) the amount of shared services allocated as part of the 
 overall authorization of personal care services. 

    The recipient or the responsible party, in conjunction with 
 the supervising qualified professional, shall arrange the 
 setting and grouping of shared services based on the individual 
 needs and preferences of the recipients.  Decisions on the 
 selection of recipients to share services must be based on the 
 ages of the recipients, compatibility, and coordination of their 
 care needs. 

    (e) The following items must be considered by the recipient 
 or the responsible party and the supervising qualified 
 professional, and documented in the recipient's health service 
 record: 

    (1) the additional qualifications needed by the personal 
 care assistant to provide care to several recipients in the same 
 setting; 

    (2) the additional training and supervision needed by the 
 personal care assistant to ensure that the needs of the 
 recipient are met appropriately and safely.  The provider must 
 provide on-site supervision by a qualified professional within 
 the first 14 days of shared services, and monthly thereafter; 

    (3) the setting in which the shared services will be 
 provided; 

    (4) the ongoing monitoring and evaluation of the 
 effectiveness and appropriateness of the service and process 
 used to make changes in service or setting; and 

    (5) a contingency plan which accounts for absence of the 
 recipient in a shared services setting due to illness or other 
 circumstances and staffing contingencies. 

    (f) The provider must offer the recipient or the 
 responsible party the option of shared or one-on-one personal 
 care assistant services.  The recipient or the responsible party 
 can withdraw from participating in a shared services arrangement 
 at any time. 

    (g) In addition to documentation requirements under 
 Minnesota Rules, part 9505.2175, a personal care provider must 
 meet documentation requirements for shared personal care 
 assistant services and must document the following in the health 
 service record for each individual recipient sharing services: 

    (1) permission by the recipient or the recipient's 
 responsible party, if any, for the maximum number of shared 
 services hours per week chosen by the recipient; 

    (2) permission by the recipient or the recipient's 
 responsible party, if any, for personal care assistant services 
 provided outside the recipient's residence; 

    (3) permission by the recipient or the recipient's 
 responsible party, if any, for others to receive shared services 
 in the recipient's residence; 

    (4) revocation by the recipient or the recipient's 
 responsible party, if any, of the shared service authorization, 
 or the shared service to be provided to others in the 
 recipient's residence, or the shared service to be provided 
 outside the recipient's residence; 

    (5) supervision of the shared personal care assistant 
 services by the qualified professional, including the date, time 
 of day, number of hours spent supervising the provision of 
 shared services, whether the supervision was face-to-face or 
 another method of supervision, changes in the recipient's 
 condition, shared services scheduling issues and 
 recommendations; 

    (6) documentation by the qualified professional of 
 telephone calls or other discussions with the personal care 
 assistant regarding services being provided to the recipient; 
 and 

    (7) daily documentation of the shared services provided by 
 each identified personal care assistant including: 

    (i) the names of each recipient receiving shared services 
 together; 

    (ii) the setting for the shared services, including the 
 starting and ending times that the recipient received shared 
 services; and 

    (iii) notes by the personal care assistant regarding 
 changes in the recipient's condition, problems that may arise 
 from the sharing of services, scheduling issues, care issues, 
 and other notes as required by the qualified professional. 

    (h) Unless otherwise provided in this subdivision, all 
 other statutory and regulatory provisions relating to personal 
 care services apply to shared services. 

    Nothing in this subdivision shall be construed to reduce 
 the total number of hours authorized for an individual recipient.

    Subd. 9.    Flexible use of personal care assistant hours. 
  (a) The commissioner may allow for the flexible use of 
 personal care assistant hours.  "Flexible use" means the 
 scheduled use of authorized hours of personal care assistant 
 services, which vary within the length of the service 
 authorization in order to more effectively meet the needs and 
 schedule of the recipient.  Recipients may use their approved 
 hours flexibly within the service authorization period for 
 medically necessary covered services specified in the assessment 
 required in subdivision 1.  The flexible use of authorized hours 
 does not increase the total amount of authorized hours available 
 to a recipient as determined under subdivision 5.  The 
 commissioner shall not authorize additional personal care 
 assistant services to supplement a service authorization that is 
 exhausted before the end date under a flexible service use plan, 
 unless the county public health nurse determines a change in 
 condition and a need for increased services is established. 

    (b) The recipient or responsible party, together with the 
 county public health nurse, shall determine whether flexible use 
 is an appropriate option based on the needs and preferences of 
 the recipient or responsible party, and, if appropriate, must 
 ensure that the allocation of hours covers the ongoing needs of 
 the recipient over the entire service authorization period.  As 
 part of the assessment and service planning process, the 
 recipient or responsible party must work with the county public 
 health nurse to develop a written month-to-month plan of the 
 projected use of personal care assistant services that is part 
 of the service plan and ensures that the: 

    (1) health and safety needs of the recipient will be met; 

    (2) total annual authorization will not exceed before the 
 end date; and 

    (3) how actual use of hours will be monitored.  

    (c) If the actual use of personal care assistant service 
 varies significantly from the use projected in the plan, the 
 written plan must be promptly updated by the recipient or 
 responsible party and the county public health nurse. 

    (d) The recipient or responsible party, together with the 
 provider, must work to monitor and document the use of 
 authorized hours and ensure that a recipient is able to manage 
 services effectively throughout the authorized period.  The 
 provider must ensure that the month-to-month plan is 
 incorporated into the care plan.  Upon request of the recipient 
 or responsible party, the provider must furnish regular updates 
 to the recipient or responsible party on the amount of personal 
 care assistant services used.  

    (e) The recipient or responsible party may revoke the 
 authorization for flexible use of hours by notifying the 
 provider and county public health nurse in writing. 

    (f) If the requirements in paragraphs (a) to (e) have not 
 substantially been met, the commissioner shall deny, revoke, or 
 suspend the authorization to use authorized hours flexibly.  The 
 recipient or responsible party may appeal the commissioner's 
 action according to section 256.045.  The denial, revocation, or 
 suspension to use the flexible hours option shall not affect the 
 recipient's authorized level of personal care assistant services 
 as determined under subdivision 5. 

    Subd. 10.    Fiscal agent option available for personal 
 care assistant services.  (a) "Fiscal agent option" is an 
 option that allows the recipient to: 

    (1) use a fiscal agent instead of a personal care provider 
 organization; 

    (2) supervise the personal care assistant; and 

    (3) use a consulting professional. 

    The commissioner may allow a recipient of personal care 
 assistant services to use a fiscal agent to assist the recipient 
 in paying and accounting for medically necessary covered 
 personal care assistant services authorized in subdivision 4 and 
 within the payment parameters of subdivision 5.  Unless 
 otherwise provided in this subdivision, all other statutory and 
 regulatory provisions relating to personal care services apply 
 to a recipient using the fiscal agent option. 

    (b) The recipient or responsible party shall: 

    (1) hire, and terminate the personal care assistant and 
 consulting professional, with the fiscal agent; 

    (2) recruit the personal care assistant and consulting 
 professional and orient and train the personal care assistant in 
 areas that do not require professional delegation as determined 
 by the county public health nurse; 

    (3) supervise and evaluate the personal care assistant in 
 areas that do not require professional delegation as determined 
 in the assessment; 

    (4) cooperate with a consulting professional and implement 
 recommendations pertaining to the health and safety of the 
 recipient; 

    (5) hire a qualified professional to train and supervise 
 the performance of delegated tasks done by the personal care 
 assistant; 

    (6) monitor services and verify in writing the hours worked 
 by the personal care assistant and the consulting professional; 

    (7) develop and revise a care plan with assistance from a 
 consulting professional; 

    (8) verify and document the credentials of the consulting 
 professional; and 

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

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

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

    (2) request and secure background checks on personal care 
 assistants and consulting professionals according to section 
 245A.04; 

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

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

    (5) verify and document hours worked by the personal care 
 assistant and consulting professional; 

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

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

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

    (d) The fiscal agent: 

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

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

    (3) shall be considered a joint employer of the personal 
 care assistant and consulting professional to the extent 
 specified in this section. 

    The fiscal agent or owners of the entity that provides 
 fiscal agent services under this subdivision must pass a 
 criminal background check as required in section 256B.0627, 
 subdivision 1, paragraph (e). 

    (e) The consulting professional providing assistance to the 
 recipient shall meet the qualifications specified in section 
 256B.0625, subdivision 19c.  The consulting professional shall 
 assist the recipient in developing and revising a plan to meet 
 the recipient's assessed needs, and supervise the performance of 
 delegated tasks, as determined by the public health nurse.  In 
 performing this function, the consulting professional must visit 
 the recipient in the recipient's home at least once annually.  
 The consulting professional must report to the local county 
 public health nurse concerns relating to the health and safety 
 of the recipient, and any suspected abuse, neglect, or financial 
 exploitation of the recipient to the appropriate authorities.  

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

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

    (2) the salary and benefits for the personal care assistant 
 and those providing professional consultation; 

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

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

    (5) procedures for hiring and terminating the personal care 
 assistant and those providing professional consultation. 

    (g) The rates paid for personal care services, professional 
 assistance, and fiscal agency services under this subdivision 
 shall be the same rates paid for personal care services and 
 qualified professional services under subdivision 2 
 respectively.  Except for the administrative fee of the fiscal 
 agent specified in paragraph (f), the remainder of the rates 
 paid to the fiscal agent must be used to pay for the salary and 
 benefits for the personal care assistant or those providing 
 professional consultation. 

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

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

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

    (3) a face-to-face assessment must be conducted by the 
 local county public health nurse at least annually, or when 
 there is a significant change in the recipient's condition or 
 change in the need for personal care assistant services.  The 
 county public health nurse shall determine the services that 
 require professional delegation, if any, and the amount and 
 frequency of related supervision; 

    (4) the recipient cannot select the shared services option 
 as specified in subdivision 8; and 

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

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

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

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

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

    The recipient or responsible party may appeal the 
 commissioner's action according to section 256.045.  The denial, 
 revocation, or suspension to use the fiscal agent option shall 
 not affect the recipient's authorized level of personal care 
 assistant services as determined in subdivision 5.  

    Subd. 11.    Shared private duty nursing care option.  
 (a) Medical assistance payments for shared private duty nursing 
 services by a private duty nurse shall be limited according to 
 this subdivision.  For the purposes of this section, "private 
 duty nursing agency" means an agency licensed under chapter 144A 
 to provide private duty nursing services. 

    (b) Recipients of private duty nursing services may share 
 nursing staff and the commissioner shall provide a rate 
 methodology for shared private duty nursing.  For two persons 
 sharing nursing care, the rate paid to a provider shall not 
 exceed 1.5 times the nonwaivered private duty nursing rates paid 
 for serving a single individual who is not ventilator dependent, 
 by a registered nurse or licensed practical nurse.  These rates 
 apply only to situations in which both recipients are present 
 and receive shared private duty nursing care on the date for 
 which the service is billed.  No more than two persons may 
 receive shared private duty nursing services from a private duty 
 nurse in a single setting. 

    (c) Shared private duty nursing care is the provision of 
 nursing services by a private duty nurse to two recipients at 
 the same time and in the same setting.  For the purposes of this 
 subdivision, "setting" means: 

    (1) the home or foster care home of one of the individual 
 recipients; or 

    (2) a child care program licensed under chapter 245A or 
 operated by a local school district or private school; or 

    (3) an adult day care service licensed under chapter 245A. 

    This subdivision does not apply when a private duty nurse 
 is caring for multiple recipients in more than one setting. 

    (d) The recipient or the recipient's legal representative, 
 and the recipient's physician, in conjunction with the home 
 health care agency, shall determine: 

    (1) whether shared private duty nursing care is an 
 appropriate option based on the individual needs and preferences 
 of the recipient; and 

    (2) the amount of shared private duty nursing services 
 authorized as part of the overall authorization of nursing 
 services. 

    (e) The recipient or the recipient's legal representative, 
 in conjunction with the private duty nursing agency, shall 
 approve the setting, grouping, and arrangement of shared private 
 duty nursing care based on the individual needs and preferences 
 of the recipients.  Decisions on the selection of recipients to 
 share services must be based on the ages of the recipients, 
 compatibility, and coordination of their care needs. 

    (f) The following items must be considered by the recipient 
 or the recipient's legal representative and the private duty 
 nursing agency, and documented in the recipient's health service 
 record: 

    (1) the additional training needed by the private duty 
 nurse to provide care to several recipients in the same setting 
 and to ensure that the needs of the recipients are met 
 appropriately and safely; 

    (2) the setting in which the shared private duty nursing 
 care will be provided; 

    (3) the ongoing monitoring and evaluation of the 
 effectiveness and appropriateness of the service and process 
 used to make changes in service or setting; 

    (4) a contingency plan which accounts for absence of the 
 recipient in a shared private duty nursing setting due to 
 illness or other circumstances; 

    (5) staffing backup contingencies in the event of employee 
 illness or absence; and 

    (6) arrangements for additional assistance to respond to 
 urgent or emergency care needs of the recipients. 

    (g) The provider must offer the recipient or responsible 
 party the option of shared or one-on-one private duty nursing 
 services.  The recipient or responsible party can withdraw from 
 participating in a shared service arrangement at any time. 

    (h) The private duty nursing agency must document the 
 following in the health service record for each individual 
 recipient sharing private duty nursing care: 

    (1) permission by the recipient or the recipient's legal 
 representative for the maximum number of shared nursing care 
 hours per week chosen by the recipient; 

    (2) permission by the recipient or the recipient's legal 
 representative for shared private duty nursing services provided 
 outside the recipient's residence; 

    (3) permission by the recipient or the recipient's legal 
 representative for others to receive shared private duty nursing 
 services in the recipient's residence; 

    (4) revocation by the recipient or the recipient's legal 
 representative of the shared private duty nursing care 
 authorization, or the shared care to be provided to others in 
 the recipient's residence, or the shared private duty nursing 
 services to be provided outside the recipient's residence; and 

    (5) daily documentation of the shared private duty nursing 
 services provided by each identified private duty nurse, 
 including: 

    (i) the names of each recipient receiving shared private 
 duty nursing services together; 

    (ii) the setting for the shared services, including the 
 starting and ending times that the recipient received shared 
 private duty nursing care; and 

    (iii) notes by the private duty nurse regarding changes in 
 the recipient's condition, problems that may arise from the 
 sharing of private duty nursing services, and scheduling and 
 care issues. 

    (i) Unless otherwise provided in this subdivision, all 
 other statutory and regulatory provisions relating to private 
 duty nursing services apply to shared private duty nursing 
 services. 

    Nothing in this subdivision shall be construed to reduce 
 the total number of private duty nursing hours authorized for an 
 individual recipient under subdivision 5. 

    Subd. 12.    Public health nurse assessment rate.  (a) 
 The reimbursement rates for public health nurse visits that 
 relate to the provision of personal care services under this 
 section and section 256B.0625, subdivision 19a, are: 

    (i) $210.50 for a face-to-face assessment visit; 

    (ii) $105.25 for each service update; and 

    (iii) $105.25 for each request for a temporary service 
 increase. 

    (b) The rates specified in paragraph (a) must be adjusted 
 to reflect provider rate increases for personal care assistant 
 services that are approved by the legislature for the fiscal 
 year ending June 30, 2000, and subsequent fiscal years.  Any 
 requirements applied by the legislature to provider rate 
 increases for personal care assistant services also apply to 
 adjustments under this paragraph. 

    HIST: 1986 c 444; 1990 c 568 art 3 s 51; 1991 c 292 art 7 s 
 12,25; 1992 c 391 s 3-6; 1992 c 464 art 2 s 1; 1992 c 513 art 7 
 s 50; 1Sp1993 c 1 art 5 s 51-53; 1995 c 207 art 6 s 52-55; 1996 
 c 451 art 5 s 17-20; 1997 c 203 art 4 s 28,29; 3Sp1997 c 3 s 9; 
 1998 c 407 art 4 s 29-31; 1999 c 245 art 4 s 50-58 

*   NOTE: Subdivision 10, as added by Laws 1999, chapter 245, 
*article 4, section 56, is effective upon federal approval.  Laws 
*1999, chapter 245, article 4, section 121.