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S.F. No. 1356 - Department of Human Services Policy Bill
 
Author: Senator Kathy Sheran
 
Prepared By: Joan White, Senate Counsel (651/296-3814)
Katie Cavanor, Senate Counsel (651/296-3801)
Liam Monahan, Senate Analyst (651/296-1791)
 
Date: March 8, 2015



 

Article 1 – Children and Family Services

Sections 1-3 amend the Department of Human Services child care chapter of law, specifically, the child care assistance program.

Section 1 (119B.011, subd. 16) modifies the definition of “legal nonlicensed child care provider,” to include certain providers caring for children in their own home, which allows these providers to receive CCAP payments. This section is effective the day following final enactment.

Section 2 (119B.025, subd. 1) allows extended time if the date a form is due falls on a Saturday, Sunday, or holiday,

Section 3 (119B.09, subd. 9) modifies legal nonlicensed child care provisions clarifying that this section of law applies only to providers who care for children in a setting other than a child care center.

The modifications to provisions related to Indian children resulted from a request by the Minnesota tribes that certain portions of the 2007 Tribal State Agreement be codified, expressing concern with noncompliance with the Indian Child Welfare Act and the Minnesota Indian Family Preservation Act.  

Sections 4 to 6, 8 to 12, 22 to 24, 27, and 28 (245A.035, subds.1, 5, 245C.22, subd. 7, 256N.02, subd. 18, 256N.23, subd. 6,  257.85, subd. 3, 259A.01, subd. 25, 259A.10, subd. 6, 260B.007, subd. 12, 260C.007, subds. 26b and 27, 260C.201, subd. 5, 260C.212, subd. 1) add a separate definition of “relative of an Indian child” in the child protection chapter of law, 260C, and add cross-references to the new definition in several other applicable chapters of law. This modification clarifies that the placement preferences under the Indian Child Welfare Act (ICWA) must be followed, and nonrelative foster parents may not be considered relatives for purposes of Indian children.

Section 7 (256.01, subd. 14b) allows the commissioner to use alternative administrative and judicial appeal processes for child maltreatment determinations for tribes participating in the American Indian child welfare projects.

Section 13 modifies the Minnesota Indian Family Preservation Act by adding a purpose statement, stressing the importance of the act and its impact on Indian families.

Sections 14, 20, and 26 (260.755, subd. 1a, 260.762, 260C.178, subd. 1) define the term “active efforts” in the Minnesota Indian Family Preservation Act. The state and federal act both require active efforts to prevent the removal of an Indian child from the child’s home and to reunify a child with the child’s family if the child has been placed out of the home, but the term is not defined in statute.  Sections 20 and 26 add cross-references to the definition. Section 20 is a new section of law that imposes several requirements on the local social services agency with regard to pursuing active efforts and specifies court findings with regard to the local social service active efforts. Section 26 adds a cross-reference to section 20.

Section 16 (260.755, subd. 8) amends the definition of “Indian child” to include that a determination by a tribe that a child is a member of the tribe is conclusive.  This section adds language to include some individuals who are under the age of 21, under certain circumstances.

Section 17 (260.755, subd. 14) amends the definition of “parent” to include a father as defined by tribal law or custom, and includes that paternity has been acknowledged when an unmarried father takes any action to hold himself out as the biological father of an Indian child.

Section 18 (260.761, subd. 1) changes the practice related to determining tribal lineage of a child.

Sections 19 and 32 (260.761, subd. 2, 626.556, subd. 10) modify agency and court notices to tribes, specifying the local agencies’ duty to provide notice at various stages of the case. The current notice process to tribes is inconsistent from county to county, and the changes in this section will result in consistency throughout the state.

Section 21 (260.771, subd. 3) allows that at any point in a proceeding for finalizing a permanency plan, the court is required to transfer the proceeding to the tribal court for purposes of achieving a customary adoption or other culturally appropriate permanency option, unless there is good cause to the contrary.

Sections 25, 29, and 30 (260C.168, 260C.212, subd. 2, 260C.511) add a definition for “best interests of an Indian child” to clarify that compliance with the ICWA and the Minnesota Indian Family Preservation Act is in the best interests of an Indian child.  Clarification is necessary so courts acknowledge the importance of the Indian culture when making determinations regarding the child’s placement.  Section 25 (260C.168) adds that that the provisions in this chapter must be construed consistently with the Minnesota Indian Family Preservation Act.

Sections 29 and 30 (260C.212, subd. 2, 260C.511) add language stating that the agency shall follow the placement preferences in the ICWA.

Section 31 (626.556, subd. 7) strikes the language passed last session prohibiting the use of screened out reports for any purpose other than to offer social services to the subjects of the screened out report.

Section 33 (626.556, subd. 11d) amends the Maltreatment of Minors Act, specifically the provision relating to the disclosure in child fatality or near fatality cases, by striking references to maltreatment, and expanding the information that must be included in the written summary related to a child fatality or near fatality to comply with the federal Child Abuse and Prevention Act (CAPTA).

Section 34 reinstates a provision repealed last year related to child support income withholding.

Article 2 - Chemical and Mental Health Services

Section 1 (168.012, subd. 1) allows Alcohol and Drug Division compliance inspectors to use unmarked vehicles when conducting unannounced tobacco compliance checks.

Section 2 (245.462, subd. 4) modifies the credentials of a case management associate to include peer specialists in the adult mental health statute.

Sections 3 and 4 (254B.05, subds. 1 and 5) amend the chemical dependency chapter of law.  Section 3 narrowly expands eligible vendors who may be reimbursed for services under the chemical dependency consolidated treatment fund.

Section 4 (254B.05, subd. 5) clarifies criteria for chemical dependency programs that provide child care and allows, subject to federal approval, direct face-to-face chemical dependency services to be provided via a two-way interactive video.

Sections 5-14 modify children’s therapeutic services and supports (CTSS), and are effective the day following final enactment.

Section 5 (256B.0943, subd. 1) amends definitions and adds new definitions.  Several existing definitions are modified and the following new terms are defined:  “clinical trainee,” “mental illness,” “psychotherapy,” and “rehabilitative services” or “psychiatric rehabilitation services.” 

Section 6 (256B.0943, subd. 2) clarifies service components of CTSS.

Section 7 (256B.0943, subd. 3) changes the determination of client eligibility.  The provision requires a diagnostic assessment that includes a current diagnosis.  With regard to the current diagnosis, the reference to “all five axes of the client’s current mental health status” is stricken and replaced with “differential diagnosis, in accordance with certain diagnostic manuals.” This section also strikes language allowing a child with autism to have an assessment every three years, and requires the provider to report progress data according to the medical assistance autism early intervention benefit.

Section 8 (256B.0943, subd. 4) requires providers to be certified for three core rehabilitation services of psychotherapy, skills training, and crisis assistance, and adds that the commissioner shall require corrective action, medical assistance repayment, or decertification of a provider who fails to meet the standards.

Section 9 (256B.0943, subd. 5) modifies the provider administrative requirements by clarifying the necessity of outcome reporting, and requiring as a condition of payment that each provider report client outcomes to DHS beginning July 1, 2017.

Section 10 (256B.0943, subd. 6) amends the provider entity clinical infrastructure requirements by clarifying policies related to baseline assessments, allowing parents to participate in the treatment services, requiring treatment progress to be documented at least once every 90 days, and modifying the services for which medical assistance will reimburse.

Section 11 (256B.0943, subd. 9) amends service delivery criteria by specifying when the program must be available, striking obsolete language related to a therapeutic preschool program that no longer exists, and adding language specifying service requirements of psychotherapy, skills training, crisis assistance, and mental health behavioral aide services in order to be eligible for medical assistance payments.

Section 12 (256B.0943, subd. 11) clarifies documentation and billing practices.

Section 13 (256B.0946, subd. 1) amends the statute related to intensive treatment in foster care to include children placed in a foster care home by a federally recognized Minnesota tribe. This section is effective the day following final enactment.

Section 14 (256B.0947, subd. 7a) modifies intensive rehabilitative mental health services by adding a list of services for which the benefit does not include. This section is effective the day following final enactment.

Section 15 requires the commissioner to study and report on the use of certified peer specialists in the mental health system.  The report must include an assessment of the use of peer specialists, an evaluation of the benefits of using a peer specialist in hospital and intensive residential treatment services (IRTS) settings, an analysis of existing duties and the cost of expanding duties, and necessary proposed legislation. The report is due February 1, 2016.

Section 16 repeals outdated rules related to residential services for adults with mental illness.

Article 3 - Direct Care and Treatment

Sections 1 and 2 (253B.212, subds. 1b and 2) section 1 allows the commissioner to contract with, and receive payment from, the Indian Health Service of the United States Department of Human Services for the care and treatment of members of an Indian tribe.  The tribe may also contract directly with the commissioner for treatment of members.

Section 2 (253B.212, subd. 2) is technical; adds references to section 1.

Article 4 - Operations

Sections 1-4 amend the child care chapter of law.

Sections 1 and 2 (119B.125, subds. 1 and 6) allow the commissioner to authorize a CCAP provider and request that providers make daily attendance records available, respectively.

Section 3 (119B.125, subd. 7) adds a subdivision specifying how a claim for an overpayment for failure to allow access to child care records is handled.

Section 4 (119B.125, subd. 8) adds a subdivision requiring a provider to report a child’s part-time attendance, under certain circumstances.

Section 5 (245.095) adds a new provision prohibiting a provider, vendor, or individual enrolled, licensed or receiving funds who is excluded from any program administered by the commissioner from enrolling or becoming licensed in any other program administered by the commissioner.

Section 6 to 23 amend the Department of Human Services Licensing Act.

Section 6 (245A.02, subd. 13) changes the definition of “individual who is related” by changing from “natural child” to “birth child.”

Section 7 (245A.02, subd. 20) defines the term “weekly” as at least every seven days.

Section 8 (245A.02, subd. 21) defines the term “monthly” as at least every 30 days.

Section 9 (245A.02, subd. 22) defines the term “quarterly” as at least every 90 days.

Section 10 245A.04, subd. 15a) amends the statute that requires providers to have a plan for the transfer of client records in the event the program closes.   New language clarifies that this requirement does not apply to license holders who reside on the premises of the program.

Section 11 (245A.07, subd. 2) restructures subdivision for clarity relating to when a commissioner shall immediately suspend a license.

Section 12 (245A.07, subd. 2a) adds language related to the burden of proof at an expedited hearing related to the immediate suspension of a license.

Section 13 (245A.11, subd. 4) is a relatively technical change incorporating the updated term “community residential setting” into the licensing zoning statute.

Sections 14 and 15 (245A.12, 245A.13) amend the voluntary and involuntary receivership of residential programs by adding nonresidential programs to the statutes.

Section 16 (245A.1443) adds a new section of law specifying the requirements for chemical dependency treatment program that serve parents with children.  The license holder must provide education to the child’s parent, assess the parent’s capacity to meet the health and safety needs of the child while at the facility, and develop written procedures addressing whether the program permits a parent to arrange for supervision of the child by another client in the program.

Section 17 (245A.16, subd. 1) modifies the section of law that lists the variances that may only be issued by the commissioner by adding “requirements relating to chemical use problems of a license holder or a household member of license holder,” and strikes obsolete language.

Section 18 (245A.175) amends the mental health training requirement for child foster care license holders, to require that all caregivers and staff receive the same training as the foster care license holder.

Sections 19 and 20 (245A.192, subds. 3 and 15) amend the opioid treatment provider licensure requirements by requiring that the doctors providing orders for an opioid treatment program be enrolled as a Minnesota health care program provider and meet all applicable provider standards.  Section 20 adds a new subdivision requiring the program to report suspected drug diversion to law enforcement.

Section 21 to 23 modify child care center training

Sections 21 and 22 (245A.40, subds. 3 and 4) close a loop hole in the law allowing 90 days in which to receive required training by clarifying that there must be at least one staff person who has satisfactorily completed first aid training and CPR during hours of operation, on field trips, and when transporting children.

Section 23 (245A.40, subd. 5) clarifies training requirements for sudden unexpected infant death and abusive head trauma training.

Section 24 to 33 modify the background study chapter of law. 

Section 24 (245C.02, subd. 2) amends the definition of “access to persons served by a program” to include access to the persons’ personal, financial, or health information. 

Sections 25, 26, and 27 (245C.04, subds. 4, 5, 6) provide that certain agencies, providers, and programs that initiate a NETStudy 2.0 background study are exempt from the requirement to initiate a new study for individuals who are on the agency’s roster.

Section 28 (245C.05, subd. 1) strikes “Minnesota” with regard to the driver’s license an individual subject to a background study must provide. 

Section 29 (245C.07) clarifies when the background study is transferrable if the subject is affiliated with multiple facilities. 

Section 30 (245C.09, subd. 1) provides that failure to provide required fingerprints and a photograph within 14 days of the background study initiation is reasonable cause to disqualify the subject, deny a license, or suspend or revoke a license.

Section 31 (245C.10, subd. 1a) provides that the provision in the employment chapter of law prohibiting an employer from requiring an employee to pay for a background study does not apply to background studies under the DHS background study chapter of law. 

Sections 32 and 33 (245C.20, subds. 2 and 2a) add language related to background studies initiated by an educational program, and make conforming changes.

Sections 34 to 38 modify the child care assistance program fraud chapter of law by imposing an administration sanction for recruiting CCAP recipients with the intent to commit fraud, and imposing a criminal penalty under section 51

Section 34 (245E.01, subd. 8) expands the definition of “financial misconduct.”

Section 35 (245E.01, subd. 13a) defines “recruiter offering conditional employment.”

Section 36 (245E.02, subd. 1) expands the authority of the commissioner to investigate when the financial misconduct relates to acting as a recruiter offering conditional employment.

Section 37 (245E.02, subd. 3a) prohibits the hiring of a child care center employee when, as a condition of employment, the employee is required to have at least one child who is eligible for child care assistance under certain circumstances. 

Section 38 (245E.02, subd. 4) modifies the commissioner’s authority to impose administrative sanctions by adding that the commissioner may suspend, deny, or terminate payments to a provider, and adds a new paragraph related to sanctions for acting as a recruiter offering conditional employment. 

Sections 39 and 40 (245E.06, subds. 2 and 3) add a notwithstanding clause to clarify timelines that potentially conflict.

Section 41 (256.01, subd. 4) expands the commissioner’s authority to take depositions and issue subpoenas for the purpose of any investigation, hearing, or proceeding of DHS.  Also, new paragraph (e) prohibits institutions that are served a subpoena from the Office of the Inspector General from notifying the subject of the subpoena.

Section 42 (256.041) codifies the Cultural and Ethnic Communities Leadership Council that passed in 2013. The expiration date of the council was changed from March 15, 2015, to June 30, 2020.

Section 43 (256.046, subd. 1) requires the initiation of an administrative fraud hearing for individuals accused of wrongfully obtaining emergency assistance and emergency general assistance.

Section 44 (256B.0625, subd. 17b) requires as a condition of payment that nonemergency medical transportation providers document details about the rides they provide.

Section 45 (256B.0705) requires PCA agencies to verify that PCAs are providing service by making random, unscheduled telephone calls to the location where PCA services are being provided at a time they are scheduled to be performed.

Sections 46 to 49 (402A.12, 402A.16, subds. 2 and 4, 402A.18) change the term “standards” to “thresholds” in the human services performance management system to provide clarity and distinguish this program from other state and federal programs measuring performance.

Section 50 (471.346) amends the municipal contracting law related to publicly owned and leased vehicles to clarify that cars used by DHS for fraud investigations do not need to have the name of the political subdivision displayed on the side of the vehicle. 

Section 51 (609.816) establishes a new felony for wrongfully employing a person at a child care center, related to the changes in sections 34 to 38

Section 52 (609.821) amends the criminal code to add a definition for “trafficking of SNAP benefits,” and adds that a person who engages in trafficking of SNAP benefits has committed financial card fraud. This section is effective the day following final enactment for crimes committed on or after that date. 

Section 53 repeals a provision related to the recovery of child care overpayments that will allow counties to receive a portion of the recovery.

Article 5 – Health Care

Section 1 (256B.0625, subd. 31) modifies the current limitation that electronic tablets covered by medical assistance only be used as a communication system by permitting them to also be used for other purposes authorized under an home and community-based services (HCBS) waiver. 

Section 2 requires the commissioner to amend Minnesota Rules regarding prior authorization requirements for certain medical supplies and equipment.   Requires the commissioner to amend Minnesota Rules to conform to the removal of these prior authorization requirements and permits the commissioner to use the good cause exemption in Minnesota Statutes, section 14.388.

Section 3 repeals several obsolete Minnesota Rules relating to special performance agreements with durable medical equipment providers that no longer exist, and a form for providers to use related to child and teen check-up program that is no longer used.

Article 6 – Continuing Care

Section 1 (144.0724, subd. 12) makes a conforming change to a cross-reference.

Section 2 (148E.065, subd. 4a) removes from an exception for social work licensure city, county, and state agency staff who perform mandated duties for the disability linkage line and the senior linkage line and who perform nursing facility prescreenings.

Section 3 (245D.10, subd. 3) paragraph (b) imposes a limit in the circumstances under which a licensed home and community-based service provider may temporarily suspend service to a person receiving such services.

Paragraph (c) imposes a limit in the circumstances under which a licensed home and community-based service provider may terminate service to a person receiving such services.

Paragraph (d) expands the required elements of a service provider’s policies to include additional documentation and notification requirements for intended suspension or termination of services.  This paragraph also requires providers to take additional steps to prevent suspension or termination of services.

Section 4 (256.045, subd. 3) paragraph (a) expands the list of individuals to whom state agency hearings are available to include (1) individuals receiving home and community-based services who have received a notice of termination of residential supports and services that is not subject to the case management appeal process available to individuals receiving DD waiver services, and (2) individuals receiving disability waiver services whose request for an alternative disability waiver payment rate was denied.

Paragraph (e) limits the scope of any appeal under 256.045, subdivision 3, paragraph (a), clause (12), to the question of whether the termination was permitted and the requirements for termination were met.

Section 5 (256.045, subd. 6) permits the commissioner to delay for up to 60 days the termination of residential supports and services when a county agency cannot make alternative arrangements to meet the person’s needs before the date on which the provider intends to terminate service. During the delay, the county agency must ensure that the additional services are provided to protect the health and safety of other program participants.

Section 6 (256.975, subd. 7) paragraph (b) expands the services provided by the Senior LinkAge Line to include providing long-term care options counseling to former residents of nursing homes who were discharged to community settings.

Paragraph (c) requires nursing homes to provide to the Senior LinkAge Line contact information for current residents of nursing homes who are deemed appropriate for discharge as well as former residents of nursing homes who have been discharged into a community setting.

Section 7 to 10 modify the Long-term Care Consultation Services program (aka MnCHOICES)

Section 7 (256B.0911, subd. 1a) expands the definition of long-term care consultation services to include service eligibility determinations for community first services and supports (CFSS).

Section 8 (256B.0911, subd. 2b) incorporates into statute “MnCHOICES,” which is the name of the single, comprehensive assessment and support planning Web-based application for long-term services and supports in Minnesota.

Section 9 (256B.0911, subd. 3) requires each lead agency to establish and maintain a team of at least two certified MnCHOICES assessors, of which at least one is a social worker and at least one is either a public health nurse or a registered nurse.

Section 10 (256B.0911, subd. 3a) paragraph (b) removes the requirement that the long-term consultation team must confer about every individual screened or assessed.

Paragraph (c) requires lead agencies to use the MnCHOICES assessment when developing a community support plan.

Sections 11 to 18 modify the Alternative Care (AC) program to align the program with the requirements of a waiver. Bringing the AC program into conformity with the waiver will allow federal financial participation in the AC program, which is currently only state-funded.

Section 11 (256B.0913, subd. 4) limits funding under the alternative care program to persons who are citizens of the United States or United States nationals.

Section 12 (256B.0913, subd. 5) modifies the goods and services for which alternative care funding may be used. This section also provides a cross-reference to the funding allocation requirements for alternative care services that receive federal financial participation under the 1115 waiver (aka the 2020 Reform waiver).

Section 13 (256B.0913, subd. 5a) specifies that Minnesota health care programs cover sign language and spoken language interpreter services for recipients eligible for alternative care if the service is necessary for the recipient to obtain covered services.

Section 14 (256B.0913, subd. 6) requires the commissioner to recover overpayments.

Section 15 (256B.0913, subd. 10) provides two cross-references to the funding allocation requirements for alternative care services that receive federal financial participation under the 1115 waiver (aka the 2020 Reform waiver).

Section 16 (256B.0913, subd. 11) provides three cross-references to the funding allocation requirements for alternative care services that receive federal financial participation under the 1115 waiver (aka the 2020 Reform waiver).

Section 17 (256B.0913, subd. 12) paragraph (b) expands the list of individuals for whom the required alternative care client fee is waived by including people receiving temporary alternative care services.

Section 18 (256B.0913, subd. 17) adds the funding allocation requirements for alternative care services that receive federal financial participation under the 1115 waiver (aka the 2020 Reform waiver).

Section 19 (256B.85) modifies the Community First Services and Supports (CFSS) program, which is designed to replace the Personal Care Assistance (PCA) program with a more comprehensive program encompassing other self-directed services.  CFSS is awaiting federal approval. The modifications are necessary, but not sufficient, for federal approve of CFSS. Many of the changes in this section are technical changes or involve reorganization of the language. Significant policy changes include the following:

Subdivisions 11a – 12b expand the responsibilities of CFSS agency-providers.

Subdivision 11a specifies for agency-provider agencies the requirement and method to evaluate CFSS services.

Subdivision 11b specifies for agency-provider agencies the requirement to and method of ensuring that a support worker is competent to meet the needs of a CFSS participant.

Subdivision 12a, paragraph (a) specifies for agency-provider agencies their duty to develop grievance procedures and policies that meet the requirement of this subdivision.

Paragraph (b) specifies for agency-provider agencies their duty to develop policies and procedures for responding to an “incident,” which is also defined in this paragraph to mean an occurrence involving the participant that requires a response that is outside the range of the ordinary provision of service to the participant.

Subdivision 12b specifies for agency-provider agencies the requirement to and procedures for giving notice of the termination of service to a client.

Subdivision 17 adds a requirement that consultation services providers must enter into a written service agreement with CFSS participants or a participant’s representative.

Subdivision 20 clarifies that consultation service providers must provide all CFSS participants with sufficient information to ensure that all participants are able to choose and manage the services and models they choose.  Subdivision 20 also strikes language requiring consultation service providers to provide information about grievance processes, individual rights and risk management.

Subdivisions 20a and 20b expand the service-related rights and protection-related rights of CFSS participants, but only of those under the agency-provider model, and expand the notice requirements with respect to these rights.

Subdivision 23a, paragraphs (a) and (b) permit the commissioner to issue sanctions against service providers or participant employers for failing to comply with laws or rules.

Paragraph (c) requires agency-providers to give 30 days’ notice to CFSS participants that the agency-provider will be terminating service as a result of sanctions imposed on the agency-provider by the commissioner.

Paragraph (d) permits but does not require the commissioner to inform the Office of Ombudsman for Long-Term Care, lead agencies, and participants served by an agency-provider if the commissioner imposes sanctions on that agency-provider.

Sections 20 to 25 (626.557, subds. 9a, 9b, and 10, 626.5572, subds. 5, 6, and 21) modify the common entry point, which is the phone line for receiving oral reports of suspected maltreatment of vulnerable adults, to clarify procedures if there are reports from multiple locations or if a report is referred to an investigative agency in error.  Other changes include modifying definitions to ensure the protection of vulnerable adults regardless of services or setting.

Section 26 (Laws 2013, chapter 108, article 7, section 58) delays the implementation of the modified nursing facility level of care criteria from January 1, 2014, to January 1, 2015.  It also delays by one year the department’s obligation to provide reports to the Legislature concerning the implementation of the new criteria.

Section 27 requires the commissioner, upon federal approval, to take initial steps to come into compliance with the home and community-based services transition plan, which is a plan to amend statutes and policies to ensure that all home and community-based waiver recipients are being served in the most integrated setting possible.

Section 28 (Revisor’s Instructions) alters the name of a program.

Section 29 (Repealer), paragraph (a) repeals a section of statute (Minnesota Statutes, section 245D.061, subdivision 3), the language of which is moved by this bill to Minnesota Statutes, section 245D.06, subdivision 6.

Paragraph (b) repeals Minnesota Rules because this bill incorporates these rules into Minnesota Statutes, section 626.557, subdivisions 9c and 10.

 
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