2005 Minnesota Statutes

     256B.0654 Private duty nursing. 

    Subdivision 1.    Definitions.  (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 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.  

    (b) "Complex and regular private duty nursing care" means: 

    (1) complex care is private duty nursing provided to 
 recipients who are ventilator dependent or for whom a physician 
 has certified that were it not for private duty nursing the 
 recipient would meet the criteria for inpatient hospital 
 intensive care unit (ICU) level of care; and 

    (2) regular care is private duty nursing provided to all 
 other recipients. 

    Subd. 2.    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 section 
 256B.0655, subdivision 4; 

    (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 
 9505.0501 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 and 
 sections 256B.0651, 256B.0653, 256B.0655, and 256B.0656 than 
 would otherwise be authorized under section 256B.49.  

    Subd. 3.    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 and sections 
 256B.0651, 256B.0653, 256B.0655, and 256B.0656, "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 regular private duty nursing rates paid for 
 serving a single individual 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; 
 or 

    (4) outside the home or foster care home of one of the 
 recipients when normal life activities take the recipients 
 outside the home.  

    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 two 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 2. 

    Subd. 4.    Hardship criteria; private duty nursing.  (a)
 Payment is allowed for extraordinary services that require 
 specialized nursing skills and are provided by parents of minor 
 children, spouses, and legal guardians who are providing private 
 duty nursing care under the following conditions: 

    (1) the provision of these services is not legally required 
 of the parents, spouses, or legal guardians; 

    (2) the services are necessary to prevent hospitalization 
 of the recipient; and 

    (3) the recipient is eligible for state plan home care or a 
 home and community-based waiver and one of the following 
 hardship criteria are met: 

    (i) the parent, spouse, or legal guardian resigns from a 
 part-time or full-time job to provide nursing care for the 
 recipient; or 

    (ii) the parent, spouse, or legal guardian goes from a 
 full-time to a part-time job with less compensation to provide 
 nursing care for the recipient; or 

    (iii) the parent, spouse, or legal guardian takes a leave 
 of absence without pay to provide nursing care for the 
 recipient; or 

    (iv) because of labor conditions, special language needs, 
 or intermittent hours of care needed, the parent, spouse, or 
 legal guardian is needed in order to provide adequate private 
 duty nursing services to meet the medical needs of the recipient.

    (b) Private duty nursing may be provided by a parent, 
 spouse, or legal guardian who is a nurse licensed in Minnesota.  
 Private duty nursing services provided by a parent, spouse, or 
 legal guardian cannot be used in lieu of nursing services 
 covered and available under liable third-party payors, including 
 Medicare.  The private duty nursing provided by a parent, 
 spouse, or legal guardian must be included in the service plan.  
 Authorized skilled nursing services provided by the parent, 
 spouse, or legal guardian may not exceed 50 percent of the total 
 approved nursing hours, or eight hours per day, whichever is 
 less, up to a maximum of 40 hours per week.  Nothing in this 
 subdivision precludes the parent's, spouse's, or legal 
 guardian's obligation of assuming the nonreimbursed family 
 responsibilities of emergency backup caregiver and primary 
 caregiver. 

    (c) A parent or a spouse may not be paid to provide private 
 duty nursing care if the parent or spouse fails to pass a 
 criminal background check according to chapter 245C, or if it 
 has been determined by the home health agency, the case manager, 
 or the physician that the private duty nursing care provided by 
 the parent, spouse, or legal guardian is unsafe. 

    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; 2000 c 474 s 
 8-11; 1Sp2001 c 9 art 3 s 29-41; 2002 c 375 art 2 s 17; 2002 c 
 379 art 1 s 113; 2003 c 15 art 1 s 33; 1Sp2003 c 14 art 3 s 
 26-28; 2005 c 10 art 1 s 49,50; 1Sp2005 c 4 art 7 s 15-19