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Minnesota Legislature

Office of the Revisor of Statutes

Chapter 256B

Section 256B.49

Recent History

256B.49 Chronically ill children and disabled persons; home and community-based waiver study and application.

Subdivision 1. Study; waiver application. The commissioner shall authorize a study to assess the need for home and community-based waivers for chronically ill children who have been and will continue to be hospitalized without a waiver, and for disabled individuals under the age of 65 who are likely to reside in an acute care or nursing home facility in the absence of a waiver. If a need for these waivers can be demonstrated, the commissioner shall apply for federal waivers necessary to secure, to the extent allowed by law, federal participation under United States Code, title 42, sections 1396-1396p, as amended through December 31, 1982, for the provision of home and community-based services to chronically ill children who, in the absence of such a waiver, would remain in an acute care setting, and to disabled individuals under the age of 65 who, in the absence of a waiver, would reside in an acute care or nursing home setting. If the need is demonstrated, the commissioner shall request a waiver under United States Code, title 42, sections 1396-1396p, to allow medicaid eligibility for blind or disabled children with ineligible parents where income deemed from the parents would cause the applicant to be ineligible for supplemental security income if the family shared a household and to furnish necessary services in the home or community to disabled individuals under the age of 65 who would be eligible for medicaid if institutionalized in an acute care or nursing home setting. These waivers are requested to furnish necessary services in the home and community setting to children or disabled adults under age 65 who are medicaid eligible when institutionalized in an acute care or nursing home setting. The commissioner shall assure that the cost of home and community-based care will not be more than the cost of care if the eligible child or disabled adult under age 65 were to remain institutionalized. The average monthly limit for the cost of home and community-based services to a community alternative care waiver client, determined on a 12-month basis, shall not exceed the statewide average medical assistance adjusted base-year operating cost for nursing and accommodation services under sections 256.9685 to 256.969 for the diagnostic category to which the waiver client would be assigned except the admission and outlier rates shall be converted to an overall per diem. The average monthly limit for the cost of services to a traumatic brain injury neurobehavioral hospital waiver client, determined on a 12-month basis, shall not exceed the statewide average medical assistance adjusted base-year operating cost for nursing and accommodation services of neurobehavioral rehabilitation programs in Medicare designated long-term hospitals under sections 256.9685 to 256.969. The following costs must be included in determining the total average monthly costs for a waiver client:

(1) cost of all waivered services; and

(2) cost of skilled nursing, private duty nursing, home health aide, and personal care services reimbursable by medical assistance.

The commissioner of human services shall seek federal waivers as necessary to implement the average monthly limit. The commissioner shall seek to amend the federal waivers obtained under this section to apply criteria to protect against spousal impoverishment as authorized under United States Code, title 42, section 1396r-5, and as implemented in sections 256B.0575, 256B.058, and 256B.059, except that the amendment shall seek to add to the personal needs allowance permitted in section 256B.0575, an amount equivalent to the group residential housing rate as set by section 256I.03, subdivision 5.

Subd. 2. Rules. The commissioner of human services may adopt rules as necessary to implement subdivision 1.

Subd. 3. Continued services for persons over age 65. Persons who are found eligible for services under this section before their 65th birthday may remain eligible for these services after their 65th birthday if they meet all other eligibility factors.

Subd. 4. Inflation adjustment. For the biennium ending June 30, 1993, the commissioner of human services shall not provide an annual inflation adjustment for home and community-based waivered services, except as provided in section 256B.491, subdivision 3, and except that the commissioner shall provide an inflation adjustment for the community alternatives for disabled individuals (CADI) and community alternative care (CAC) waivered services programs for the fiscal year beginning July 1, 1991. For fiscal years beginning after June 30, 1993, the commissioner of human services shall not provide automatic annual inflation adjustments for home and community-based waivered services. The commissioner of finance shall include, as a budget change request in each biennial detailed expenditure budget submitted to the legislature under section 16A.11, annual adjustments in reimbursement rates for each home and community-based waivered service program.

Subd. 5. Provide waiver eligibility for certain chronically ill and certain disabled persons. Chronically ill or disabled individuals, who are likely to reside in acute care if waiver services were not provided, could be found eligible for services under this section without regard to age.

Subd. 6. Admission certification. In determining an individual's eligibility for the community alternative care (CAC) waiver program, and an individual's eligibility for medical assistance under section 256B.055, subdivision 12, paragraph (b), the commissioner may review or contract for review of the individual's medical condition to determine level of care using criteria in Minnesota Rules, parts 9505.0520 to 9505.0540.

For purposes of this subdivision, a person requires long-term care in an inpatient hospital setting if the person has an ongoing condition that is expected to last one year or longer, and would require continuous or frequent hospitalizations during that period, but for the provision of home care services under this section.

Subd. 7. Persons with developmental disabilities or related conditions. Individuals who apply for services under the community alternatives for disabled individuals (CADI) waiver program or the traumatic brain injury nursing facility waiver program who have developmental disabilities or related conditions must be screened for the appropriate institutional level of care in accordance with section 256B.092.

Subd. 8. Case management services. The county may allow a case manager to delegate certain aspects of the case management activity to another individual employed by the county provided there is oversight of the individual by the case manager. The case manager may not delegate those aspects which require professional judgment including assessments, reassessments, and care plan development.

Subd. 9. Prevocational and supported employment services. The commissioner shall seek to amend the community alternatives for disabled individuals waivers and the traumatic brain injury waivers to include prevocational and supported employment services.

Subd. 10. Private duty nursing services provided by a spouse. The commissioner shall seek to amend the community alternative care home and community-based waivered services program to include payment for spouses providing private duty nursing care to a recipient who can direct his or her own care. For purposes of this subdivision, a recipient can direct his or her own care if the recipient can communicate:

(1) orientation to person, place, and time;

(2) an understanding of the recipient's plan of care, including medications and medication schedule;

(3) needs; and

(4) an understanding of safety issues, including how to access emergency assistance.

Private duty nursing may be provided by a spouse who is a licensed nurse employed by a Medicare certified home health agency, in cases where there is a lack of a sufficient number of qualified providers or private duty nurses and to prevent the hospitalization of the recipient. Private duty nursing services provided by a spouse cannot be used in lieu of nursing services covered and available under liable third-party payers including Medicare and medical assistance not paid by the waiver. The private duty nursing provided by a spouse must be included in the plan of care and must be scheduled by the home health agency, and may be covered for up to 24 hours per week. In no case shall the authorization of these services provided by the spouse exceed 50 percent of the total approved nursing hours or eight hours per day, whichever is less. Nothing in this subdivision precludes the spouse's obligation of assuming the nonreimbursed family responsibilities of emergency backup caregiver and primary caregiver. The waiver interdisciplinary team shall recommend to the commissioner whether the provision of private duty nursing care by a spouse is appropriate. In no case shall a spouse be paid to provide private duty nursing care if the spouse fails to pass a criminal background check according to section 245A.04, or if it has been determined by the home health agency or the waiver case manager that the private duty nursing care provided by the spouse is unsafe. This subdivision is effective upon the date of federal approval.

HIST: 1984 c 640 s 32; 1984 c 654 art 5 s 24,58; 1990 c 568 art 3 s 76; 1991 c 292 art 4 s 61; 1992 c 513 art 7 s 114; 1Sp1993 c 1 art 5 s 105; 1995 c 207 art 6 s 87-89; 1996 c 451 art 5 s 29-31; 1997 c 7 art 5 s 31; 1997 c 203 art 4 s 47; art 7 s 24; 1999 c 156 s 1