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Minnesota Legislature

Office of the Revisor of Statutes

Chapter 256B

Section 256B.49

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Recent History

256B.49 HOME AND COMMUNITY-BASED SERVICE WAIVERS FOR DISABLED.
    Subdivision 1.[Repealed, 1Sp2001 c 9 art 3 s 76]
    Subd. 2.[Repealed, 1Sp2001 c 9 art 3 s 76]
    Subd. 3.[Repealed, 1Sp2001 c 9 art 3 s 76]
    Subd. 4.[Repealed, 1Sp2001 c 9 art 3 s 76]
    Subd. 5.[Repealed, 1Sp2001 c 9 art 3 s 76]
    Subd. 6.[Repealed, 1Sp2001 c 9 art 3 s 76]
    Subd. 7.[Repealed, 1Sp2001 c 9 art 3 s 76]
    Subd. 8.[Repealed, 1Sp2001 c 9 art 3 s 76]
    Subd. 9.[Repealed, 1Sp2001 c 9 art 3 s 76]
    Subd. 10.[Repealed, 1Sp2001 c 9 art 3 s 76]
    Subd. 11. Authority. (a) The commissioner is authorized to apply for home and
community-based service waivers, as authorized under section 1915(c) of the Social Security Act
to serve persons under the age of 65 who are determined to require the level of care provided in a
nursing home and persons who require the level of care provided in a hospital. The commissioner
shall apply for the home and community-based waivers in order to:
    (i) promote the support of persons with disabilities in the most integrated settings;
    (ii) expand the availability of services for persons who are eligible for medical assistance;
    (iii) promote cost-effective options to institutional care; and
    (iv) obtain federal financial participation.
    (b) The provision of waivered services to medical assistance recipients with disabilities shall
comply with the requirements outlined in the federally approved applications for home and
community-based services and subsequent amendments, including provision of services according
to a service plan designed to meet the needs of the individual. For purposes of this section, the
approved home and community-based application is considered the necessary federal requirement.
    (c) The commissioner shall provide interested persons serving on agency advisory
committees, task forces, the Centers for Independent Living, and others who request to be on a
list to receive, notice of, and an opportunity to comment on, at least 30 days before any effective
dates, (1) any substantive changes to the state's disability services program manual, or (2) changes
or amendments to the federally approved applications for home and community-based waivers,
prior to their submission to the federal Centers for Medicare and Medicaid Services.
    (d) The commissioner shall seek approval, as authorized under section 1915(c) of the Social
Security Act, to allow medical assistance eligibility under this section for children under age 21
without deeming of parental income or assets.
    (e) The commissioner shall seek approval, as authorized under section 1915(c) of the Social
Act, to allow medical assistance eligibility under this section for individuals under age 65 without
deeming the spouse's income or assets.
    Subd. 12. Informed choice. Persons who are determined likely to require the level of care
provided in a nursing facility or hospital shall be informed of the home and community-based
support alternatives to the provision of inpatient hospital services or nursing facility services.
Each person must be given the choice of either institutional or home and community-based
services using the provisions described in section 256B.77, subdivision 2, paragraph (p).
    Subd. 13. Case management. (a) Each recipient of a home and community-based waiver
shall be provided case management services by qualified vendors as described in the federally
approved waiver application. The case management service activities provided will include:
(1) assessing the needs of the individual within 20 working days of a recipient's request;
(2) developing the written individual service plan within ten working days after the
assessment is completed;
(3) informing the recipient or the recipient's legal guardian or conservator of service options;
(4) assisting the recipient in the identification of potential service providers;
(5) assisting the recipient to access services;
(6) coordinating, evaluating, and monitoring of the services identified in the service plan;
(7) completing the annual reviews of the service plan; and
(8) informing the recipient or legal representative of the right to have assessments completed
and service plans developed within specified time periods, and to appeal county action or inaction
under section 256.045, subdivision 3.
(b) The case manager may delegate certain aspects of the case management service activities
to another individual provided there is oversight by the case manager. The case manager may not
delegate those aspects which require professional judgment including assessments, reassessments,
and care plan development.
    Subd. 14. Assessment and reassessment. (a) Assessments of each recipient's strengths,
informal support systems, and need for services shall be completed within 20 working days of
the recipient's request. Reassessment of each recipient's strengths, support systems, and need for
services shall be conducted at least every 12 months and at other times when there has been a
significant change in the recipient's functioning.
(b) Persons with developmental disabilities who apply for services under the nursing facility
level waiver programs shall be screened for the appropriate level of care according to section
256B.092.
(c) Recipients who are found eligible for home and community-based services under this
section before their 65th birthday may remain eligible for these services after their 65th birthday
if they continue to meet all other eligibility factors.
    Subd. 15. Individualized service plan. (a) Each recipient of home and community-based
waivered services shall be provided a copy of the written service plan which:
(1) is developed and signed by the recipient within ten working days of the completion of
the assessment;
(2) meets the assessed needs of the recipient;
(3) reasonably ensures the health and safety of the recipient;
(4) promotes independence;
(5) allows for services to be provided in the most integrated settings; and
(6) provides for an informed choice, as defined in section 256B.77, subdivision 2, paragraph
(p), of service and support providers.
(b) When a county is evaluating denials, reductions, or terminations of home and
community-based services under section 256B.49 for an individual, the case manager shall offer
to meet with the individual or the individual's guardian in order to discuss the prioritization of
service needs within the individualized service plan. The reduction in the authorized services for
an individual due to changes in funding for waivered services may not exceed the amount needed
to ensure medically necessary services to meet the individual's health, safety, and welfare.
    Subd. 16. Services and supports. (a) Services and supports included in the home and
community-based waivers for persons with disabilities shall meet the requirements set out
in United States Code, title 42, section 1396n. The services and supports, which are offered
as alternatives to institutional care, shall promote consumer choice, community inclusion,
self-sufficiency, and self-determination.
(b) Beginning January 1, 2003, the commissioner shall simplify and improve access to home
and community-based waivered services, to the extent possible, through the establishment of a
common service menu that is available to eligible recipients regardless of age, disability type,
or waiver program.
(c) Consumer directed community support services shall be offered as an option to all
persons eligible for services under subdivision 11, by January 1, 2002.
(d) Services and supports shall be arranged and provided consistent with individualized
written plans of care for eligible waiver recipients.
(e) A transitional supports allowance shall be available to all persons under a home and
community-based waiver who are moving from a licensed setting to a community setting.
"Transitional supports allowance" means a onetime payment of up to $3,000, to cover the costs,
not covered by other sources, associated with moving from a licensed setting to a community
setting. Covered costs include:
(1) lease or rent deposits;
(2) security deposits;
(3) utilities set-up costs, including telephone;
(4) essential furnishings and supplies; and
(5) personal supports and transports needed to locate and transition to community settings.
(f) The state of Minnesota and county agencies that administer home and community-based
waivered services for persons with disabilities, shall not be liable for damages, injuries,
or liabilities sustained through the purchase of supports by the individual, the individual's
family, legal representative, or the authorized representative with funds received through the
consumer-directed community support service under this section. Liabilities include but are not
limited to: workers' compensation liability, the Federal Insurance Contributions Act (FICA), or
the Federal Unemployment Tax Act (FUTA).
    Subd. 16a. Medical assistance reimbursement. (a) The commissioner shall seek federal
approval for medical assistance reimbursement of independent living skills services, foster care
waiver service, supported employment, prevocational service, structured day service, and adult
day care under the home and community-based waiver for persons with a traumatic brain injury,
the community alternatives for disabled individuals waivers, and the community alternative
care waivers.
    (b) Medical reimbursement shall be made only when the provider demonstrates evidence of
its capacity to meet basic health, safety, and protection standards through one of the methods in
paragraphs (c) to (e).
    (c) The provider is licensed to provide services under chapter 245B and agrees to apply these
standards to services funded through the traumatic brain injury, community alternatives for
disabled, or community alternative care home and community-based waivers.
    (d) The local agency contracting for the services certifies on a form provided by the
commissioner that the provider has the capacity to meet the individual needs as identified in each
person's individual service plan. When certifying that the service provider meets the necessary
provider qualifications, the local agency shall verify that the provider has policies and procedures
governing the following:
    (1) protection of the consumer's rights and privacy;
    (2) risk assessment and planning;
    (3) record keeping and reporting of incidents and emergencies with documentation of
corrective action if needed;
    (4) service outcomes, regular reviews of progress, and periodic reports;
    (5) complaint and grievance procedures;
    (6) service termination or suspension;
    (7) necessary training and supervision of direct care staff that includes:
    (i) documentation in personnel files of 20 hours of orientation training in providing training
related to service provision;
    (ii) training in recognizing the symptoms and effects of certain disabilities, health conditions,
and positive behavioral supports and interventions;
    (iii) a minimum of five hours of related training annually; and
    (iv) when applicable:
    (A) safe medication administration;
    (B) proper handling of consumer funds; and
    (C) compliance with prohibitions and standards developed by the commissioner to satisfy
federal requirements regarding the use of restraints and restrictive interventions. The local agency
shall review at least annually each service provider's continued compliance with the standards
governing basic health, safety, and protection of rights.
    (e) The commissioner shall seek federal approval for Medicaid reimbursement of foster
care services under the home and community-based waiver for persons with a traumatic brain
injury, the community alternatives for disabled individuals waiver, and community alternative
care waiver when the provider demonstrates evidence of its capacity to meet basic health,
safety, and protection standards. The local agency shall verify that the provider is licensed under
Minnesota Rules, parts 9555.5105 to 9555.6265, and certify that the provider has policies and
procedures that govern:
    (1) compliance with prohibitions and standards developed by the commissioner to meet
federal requirements regarding the use of restraints and restrictive interventions; and
    (2) documentation of service needs and outcomes, regular reviews of progress, and periodic
reports.
The local agency shall review at least annually each service provider's continued compliance with
the standards governing basic health, safety, and protection of rights standards.
    Subd. 17. Cost of services and supports. (a) The commissioner shall ensure that the average
per capita expenditures estimated in any fiscal year for home and community-based waiver
recipients does not exceed the average per capita expenditures that would have been made to
provide institutional services for recipients in the absence of the waiver.
(b) The commissioner shall implement on January 1, 2002, one or more aggregate,
need-based methods for allocating to local agencies the home and community-based waivered
service resources available to support recipients with disabilities in need of the level of care
provided in a nursing facility or a hospital. The commissioner shall allocate resources to single
counties and county partnerships in a manner that reflects consideration of:
(1) an incentive-based payment process for achieving outcomes;
(2) the need for a state-level risk pool;
(3) the need for retention of management responsibility at the state agency level; and
(4) a phase-in strategy as appropriate.
(c) Until the allocation methods described in paragraph (b) are implemented, the annual
allowable reimbursement level of home and community-based waiver services shall be the
greater of:
(1) the statewide average payment amount which the recipient is assigned under the waiver
reimbursement system in place on June 30, 2001, modified by the percentage of any provider rate
increase appropriated for home and community-based services; or
(2) an amount approved by the commissioner based on the recipient's extraordinary
needs that cannot be met within the current allowable reimbursement level. The increased
reimbursement level must be necessary to allow the recipient to be discharged from an institution
or to prevent imminent placement in an institution. The additional reimbursement may be used to
secure environmental modifications; assistive technology and equipment; and increased costs
for supervision, training, and support services necessary to address the recipient's extraordinary
needs. The commissioner may approve an increased reimbursement level for up to one year of
the recipient's relocation from an institution or up to six months of a determination that a current
waiver recipient is at imminent risk of being placed in an institution.
(d) Beginning July 1, 2001, medically necessary private duty nursing services will be
authorized under this section as complex and regular care according to sections 256B.0651
and 256B.0653 to 256B.0656. The rate established by the commissioner for registered nurse or
licensed practical nurse services under any home and community-based waiver as of January 1,
2001, shall not be reduced.
    Subd. 18. Payments. The commissioner shall reimburse approved vendors from the medical
assistance account for the costs of providing home and community-based services to eligible
recipients using the invoice processing procedures of the Medicaid management information
system (MMIS). Recipients will be screened and authorized for services according to the federally
approved waiver application and its subsequent amendments.
    Subd. 19. Health and welfare. The commissioner of human services shall take the necessary
safeguards to protect the health and welfare of individuals provided services under the waiver.
    Subd. 20. Traumatic brain injury and related conditions. The commissioner shall seek
to amend the traumatic brain injury waiver to include, as eligible persons, individuals with an
acquired or degenerative disease diagnosis where cognitive impairment is present, such as
multiple sclerosis.
    Subd. 21. Report. The commissioner shall expand on the annual report required under
section 256B.0916, subdivision 7, to include information on the county of residence and financial
responsibility, age, and major diagnoses for persons eligible for the home and community-based
waivers authorized under subdivision 11 who are:
(1) receiving those services;
(2) screened and waiting for waiver services; and
(3) residing in nursing facilities and are under age 65.
History: 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; 1Sp2001 c 9 art 3 s
58-67; 2002 c 277 s 32; 2002 c 379 art 1 s 113; 1Sp2003 c 14 art 3 s 46; 2004 c 288 art 3 s 25;
2005 c 56 s 1; 1Sp2005 c 4 art 7 s 44; 2007 c 147 art 6 s 45; art 7 s 58

NOTE: The amendment to subdivision 16 by Laws 2005, First Special Session chapter 4,
article 7, section 44, is effective upon federal approval and to the extent approved as a federal
waiver amendment. Laws 2005, First Special Session chapter 4, article 7, section 44, the effective
date.