Senate Counsel, Research
and Fiscal Analysis
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Tom Bottern
State of Minnesota
S.F. No. 3937 - Human Services Reform Omnibus Bill (First Engrossment)
Author: Senator Jim Abeler
Prepared By: Joan White, Senate Counsel (651/296-3814)
Liam Monahan, Senate Analyst (651/296-1791)
Date: April 23, 2018


Article 1 – Children and Families; Licensing

Sections 1 to 3, 5, 6, and 8 to 10, are provisions necessary to comply with the federal Child Care and Development Block Grant (CCDBG) requirements.

Sections 1 and 5 (119B.011, subd. 13b, 119B.025, subd. 1) establish an expedited application process for homeless families applying for the child care assistance program (CCAP). Proof of eligibility must be submitted within three months of the application date.

Section 2 (119B.011, subd. 19) requires all providers to meet federal health and safety requirements as certified by the licensing state or tribe, or as determined by receipt of CCDBG funds in the licensing state.

Section 3 (119B.011, subd. 20) modifies assistance for transition year families to ensure that families who received MFIP for at least one, instead of three, of the last six months, will quality for transition year child care.

Section 4 (119B.02, subd. 7) requires that the commissioner conduct the child care market survey every three years, instead of biennially, and conduct the next survey of prices charged by child care providers in Minnesota in fiscal year 2021.  This is not a federal requirement.

Section 6 (119B.03, subd. 9) eliminates the six-month limit on the portability pool assistance. The portability pool is funded with up to five percent of the annual appropriation for basic sliding fee, and provides continuous child care assistance for eligible families who move to a different county in Minnesota.

Section 7 (119B.06, subd. 1) modifies the administration of the child care block grant, specifically the discretional amounts provided for federal fiscal year 2018 and reserved for quality activities. The commissioner must ensure that funds are prioritized to increase the availability of training and business planning assistance for child care providers.

Sections 8 and 9 (119B.09, subd.1 and 119B.095, subd. 2) modify provisions to allow families to remain eligible for CCAP until the redetermination, when a child turns 13 years old or a child with a disability turns 15 years old.

Section 10 (119B.13, subd. 1) amends the child care assistance provider rates.  The maximum rate is the greater of the percentile calculated by the commissioner of the most recent rate survey or the rates in effect at the time of the update.  For the first update on February 22, 2019, the commissioner is required to determine the percentile of the most recent survey, not to exceed the 25th percentile, that can be funded using the CCDBG and any subsequent federal appropriation for FY2019, after complying with other federal CCDBG requirements enacted in 2018.  Beginning in fiscal year 2022, the commissioner, in consultation with the Commissioner of Management and Budget, shall determine the amount of federal funding for child care assistance rates, not to exceed the 25th percentile, so the rates are paid only with federal CCDBG funds.  If federal funds are not sufficient to maintain the enacted compliance requirements, the commissioner must adjust maximum rates to remain within the limits of available funds.

Section 11 (245A.06, subd. 8) amends the Department of Human Services Licensing Act, specifically Minnesota Statutes, section 245A.06, by eliminating the requirement that a child care provider or child care center post a correction order in a conspicuous place.

Section 12 (245A.175) amends the Department of Human Services Licensing Act, specifically the child foster care training requirements related to fetal alcohol spectrum disorders (FASD).  This section requires that, except for providers and services under Minnesota Statutes, chapter 245D, the annual training include at least one hour of training on FASD, which must be counted towards the 12 hours training required per year.

Section 13 (254A.035, subd. 2) extends from June 30, 2018, to June 30, 2023, the American Indian Advisory Council.

Section 14 (256K.45, subd. 2) provides that the commissioner is exempt from preparing the required report under this section of law, and instead update the 2007 report on homeless youth under section 22.

Section 15 (256M.41, subd. 3) modifies the subdivision that distributes payments based on county performance. This section eliminates the 20 percent withhold, so the counties receive 100 percent of the allocation when funds are distributed. Under current law, 20 percent of the funds are withheld, and distributed to counties after the commissioner determines the county’s compliance with performance standards.

Section 16 (256M.41, subd. 4) requires the commissioner to set child protection measures and standards.  An underperforming county must demonstrate that the county has designated sufficient funds and implemented a reasonable strategy to improve child protection performance. The commissioner may redirect up to 20 percent of a county’s funds toward the performance improvement plan for a county not demonstrating significant improvement, or impose sanctions.

Section 17 (256N.24, subd. 2a) requires the Commissioner of Human Services, in consultation with representatives from communities of color and others, to review and revise the Minnesota assessment of parenting for children and youth (MAPCY) tool that is used to assess children to determine eligibility for benefits under Northstar Care for Children, and incorporate changes that take into consideration different cultures and the diverse needs of communities of color.

Section 18 (260.835, subd. 2) extends from June 30, 2018, to June 30, 2023, the American Indian Child Welfare Advisory Council.

Section 19 (260C.008, subd. 1) lists the rights of siblings who are placed in foster care.

Subdivision 2 provides the interpretation of the rights, which are established for the benefit of siblings in foster care, and the rights do not replace or diminish other rights, liberties, and responsibilities that may exist relative to children in foster care.

Subdivision 3 requires that a copy of the rights be provided to a child who has a sibling at the time the child enters foster care, and the foster care provider.  The copy must contain the contact information for the Office of Ombudsman for Families and a statement explaining how to file a complaint with the office.

This section is effective for children entering foster care on or after August 1, 2018. Subdivision 3 is effective August 1, 2018, for all children in foster care.

Section 20 (260C.81) establishes the Child Welfare Training Academy.  The academy must be administered through five regional hubs, and each hub shall deliver training targeted to the needs to of the region.  Each child welfare worker and supervisor shall be required to complete a certification including a competency-based knowledge test and a skills demonstration after initial training, and biennially thereafter. The commissioner shall develop ongoing training requirements and a method for tracking certifications. The commissioner shall enter into a partnership with the U of M to collaborate in the administration of the workforce training, and enter into a partnership with one or more agencies to provide consultation, subject matter expertise, and capacity building in organizational resilience and child welfare workforce well-being. Subdivision 2 allows the commissioner to adopt rules necessary to establish the child welfare training academy.

Section 21 (626.556, subd. 17) requires the commissioner to partner with select Minnesota counties and tribal child welfare agencies, including Hennepin County and at least one rural county, and other counties must represent a balance around the state, to make recommendations for the creation of a safety and risk-based framework that will improve appropriate, timely, and adequate responses to a child’s safety needs using a trauma-informed lens. The commissioner, county, and tribal child welfare agencies shall review the child maltreatment statutes, administrative rules, guidelines, and practice, and make recommendations on modifications needed to implement a safety and risk-based framework and a response system that enhances the protection of children. In forming the recommendations, the commissioner shall consult with county attorneys, law enforcement and others.  Under paragraph (b), the commissioner is required to make the recommendations by January 31, 2019.

Section 22 requires the Commissioner of Human Services to update the information in the 2007 Legislative Report on homeless youth in lieu of the biennial homeless youth report under chapter 256K.  In developing the updated report, the commissioner may use existing data, studies, and analysis provided by the state, county, and other entities, including the different sources listed in the bill. The report may include three key elements, which are listed in subdivision 2. The report is due February 15, 2018.

Section 23 requires the commissioner to form an African American child welfare work group within the implementation work group for the Governor’s Child Protection Task Force to help formulate policies and procedures relating to African American child welfare services. The work group shall report its findings and recommendations by February 1, 2019.

Section 24 requires the commissioner to work with six counties, which must include Hennepin County and at least one rural county, and other counties must represent a balance around the state, to review the background study and licensing processes for relative foster care, and report recommendations by January 31, 2019.

Section 25 requires the Commissioners of Human Services and Health, and the Revisor of Statutes to draft legislation to consolidate into one new state agency the licensing, background study, and related oversight functions that are currently in DHS and MDH.  This would include the Office of Inspector General, the Minnesota Adult Abuse Reporting Center, and the Office of Health Facility Complaints.  The legislation is due to the chairs and ranking minority members of the committees having jurisdiction over human services issues by December 15, 2018, with the new agency beginning operations on July 1, 2019.

Article 2 – State-Operated Services; Chemical and Mental Health

Sections 1 and 2 (245.4889, subds.1 and 1a) amend the children’s mental health act. Section 1 strikes the clause that allows school-linked mental health grants to be used for transportation, because it is moved to the next section, and adds a clause requiring a grantee to obtain all available third-part reimbursement sources, which is current practice.

Section 2 (245.4889, subd. 1a) lists the eligible applicants for school-linked mental health grants, and provides that allowable expenses include transportation and equipment and set-up fees to deliver services via telemedicine.

Section 3 (246.0415) modifies the state-operated services chapter of law, by requiring that clients who exhibit assaultive or violent behavior, have severe behavior issues, or are involved with or are at risk of being involved with the criminal justice system be placed in or moved to a setting that meets the client’s needs and ensures the safety of the public. Clients must not be placed in a residential setting that jeopardizes the safety of others until the commissioner determines that the client is low risk for committing violent acts.

Sections 4 and 5 (254B.02, subd. 1 and 254B.06, subd. 1) strike language that allows the Department of Human Services to use consolidated chemical dependency treatment fund (CCDTF) revenues for administrative purposes.

Section 6 establishes the person-centered telepresence platform expansion work group.  Subdivision 1 requires the commissioner to convene the work group to explore opportunities to collaborate and expand strategies for person-centered innovation using Internet telepresence in delivering health and human services, as well as related educational and correctional services.  This subdivision lists the members that the Commissioner of Human Services, in consultation with the Commissioner of Health, shall appoint, and lists the duties of the work group in subdivision 3.  A report is due by January 15, 2019, under subdivision 4, and the work group expires on January 16, 2019, under subdivision 5.

Article 3 – Community Supports and Continuing Care

Section 1 (245A.03, subdivision 7, paragraph (a), clause (7)) extends an existing foster care licensing moratorium from June 30, 2018, to June 30, 2019, for certain previously unlicensed setting to become licensed.

Clause (8) excludes from the foster care license moratorium a vacancy created in a foster care setting that has been granted a foster care licensing moratorium exception under clause (7).

Section 2 (245A.11, subdivision 2a, paragraph (g)) amends the Department of Human Services Licensing Act, specifically the provision determining capacity for adult foster care settings. This section modifies the requirements in paragraph (f) related to the commissioner’s authority to issue an adult foster care license with a capacity of five adults, by requiring that the facility be licensed before June 20, 2021, instead of March 11, 2011. Paragraph (g) provides that the commissioner shall not issue a new foster care license under paragraph (f) after June 30, 2021, instead of June 30, 2019. The commissioner is required to allow a facility with an adult foster care license before June 30, 2021, instead of June 30, 2019, to continue with a capacity of five adults provided the license holder complies with the requirements in paragraph (f).

Section 3 (245D.03, subdivision 1) clarifies which services are governed by Minnesota Statutes, chapter 245D, licensing standards by including the medical assistance waivers under which the services are provided, and changes the name of behavioral support services to positive support services.

Section 4 (245D.071, subdivision 5) amends the home and community-based services standards related to service planning for intensive support services.

Paragraph (a) is editorial.

Paragraph (b) requires a licensed provider of intensive home and community-based services, when conducting a service plan review, to include and document a discussion of how a person receiving intensive services might use technology to help the person meet the person’s goals. (In 2017, the legislature passed identical language for the purposes of initial service planning.)

Sections 5 – 7 change the name of behavioral support services to positive support services, amend the home and community-based services standards related to the qualifications for individuals providing positive support services, and make other conforming and clarifying changes.

Section 5 (245D.091, subdivision 2, clause (12), item (vi)) allows an individual with master’s degree or higher and a demonstrated expertise in positive supports to qualify as a positive supports professional.

Section 6 (245D.091, subdivision 3)

Paragraph (a), clause (3), permits a board-certified behavior analyst or assistant behavior analyst to qualify as a positive support analyst.

Paragraph (b), clause (1), modifies additional qualifications for a positive support analyst be requiring four years of supervised experience that includes specific tasks.

Paragraph (b), clause (2), allows a person who meets the other positive support analyst qualifications to qualify as a positive support analyst if the person receives the required training within 90 days following hire and adds additional training requirements.  Under current law, such a person does not qualify as a behavior analyst until after the training is completed.

Paragraph (c) allows a person who qualifies as a positive support professional to qualify as a positive support analyst without meeting the training requirements of paragraph (b).

Section 7 (245D.091, subdivision 4)

Paragraph (b) allows a person who meets the other positive support specialist qualifications to qualify as a behavior specialist if the person receives the required training within 90 days following hire.  Under current law, such a person does not qualify as a behavior specialist until after the training is completed.  The bill does change the existing training requirements.

Paragraph (c) allows a person who qualifies as a positive support professional to qualify as a positive support specialist without meeting the training requirements of paragraph (b).

Sections 8 and 14 - 21, amend the long-term care consultation services statute, as well as the statutes governing the elderly waiver, the developmental disability waiver, and the disability waivers related to assessments.

Section 8 (256B.0659, subdivisions 3a) clarifies that lead agencies may continue to use legacy assessment tools for PCA assessments.

Section 9 (256B.0659, subdivision 11, paragraph (d)) specifies the requirements a personal care attendant must meet in order for the services the personal care attendant provides to qualify for an existing enhanced rate.

Section 10 (256B.0659, subdivision 17a) codifies an existing enhanced rate for personal care attendant services provided to individuals requiring 12 or more hours of service.

Sections 11 and 13 (256B.0659, subdivisions 21 and 28) require provider agencies to document whether a personal care attendant has received the training that would qualify the services the personal care attendant provides for an enhanced rate.

Section 12 (256B.0659, subdivision 24, clause (15)) requires a provider agency to pass through the entire value of the enhanced rate in the form of wages and benefits to the personal care attendants who provide the services that qualify for the enhanced rate.

Section 14 (256B.0911, subdivision 1a, paragraph (b)) removes from the MnCHOICES assessment process service eligibility determinations for home care nursing and reassessments for people with developmental disabilities receiving only Rule 185 case management services, and also removes long-term care consultation services (otherwise known as a MnCHOICES assessment) as the required process for determining whether the family of a minor with a disability is eligible for a support grant.

Section 15 (256B.0911, subdivision 3a, paragraph (a)) makes conforming changes by striking from the MnCHOICES statute references to home care nursing.

Paragraph (c) requires the MnCHOICES assessment process to be conversational in nature.

Paragraph (d) removes a requirement that a legal representative of a person receiving a MnCHOICES assessment be physically present during an assessor’s face-to-face assessment of the person seeking long-term care, and permits the legal representative to participate in the assessment remotely instead.

Paragraph (e) removes the existing requirement that a MnCHOICES assessor complete a community support plan within 40 calendar days of the assessment. DHS will determine a new deadline for completing the community support plan, but the total time for the assessor to complete the community support plan and the case manager to complete the coordinated service and support plan must not exceed 56 days.

Paragraph (j), clause (9), requires a certified assessor to point out in the assessment documents the location of the statement concerning the person’s right to appeal the results of an assessment.

Paragraph (k) allows the results of a MnCHOICES assessment to establish service eligibility for developmental disability waiver services for up to 60 days from the time of the assessment. Paragraph (k) interacts with existing paragraph (m) to permit a service eligibility update for developmental disability waiver services to extend the validity of a MnCHOICES assessment for an additional 30 days. These changes align the service eligibility timelines for developmental disability waiver services with the timelines for the other home and community-based waiver and alternative care services.

Section 16 (256B.0911, subdivision 3f, paragraph (a)) requires a certified assessor to review a person’s most recent assessment prior to a reassessment, and requires DHS to establish timelines for a MnCHOICES assessor, following an annual MnCHOICES reassessment, to complete an updated coordinated support plan and a case manager to complete an updated coordinated service and support plan.

Section 17 (256B.0911, subdivision 5, paragraph (c)) requires the Commissioner of Human Services, in cooperation with lead agencies, to develop and collect data on a set of measures of increasing efficiency in the MnCHOICES assessment process, and to report an analysis of that data to lead agencies and to the Legislature.  Paragraphs (a) and (b) contain existing requirements that the commissioner make the assessment process more efficient.  This paragraph requires the commissioner to demonstrate that the process is becoming more efficient.

Sections 18 – 19 and 21 (256B.0915, subdivision 6, paragraph (a), clause (1); 256B.092, subdivision 1b, paragraph (a), clause (1); and 256B.49, subdivision 13, paragraph (a), clause (1)) remove the current ten-day deadline for case managers to complete coordinated service and support plans for people receiving any home and community-based waiver services or alternative care.  DHS will determine a new deadline for completing coordinated service and support plans, but the total time for a MnCHOICES assessor to complete the community support plan and the case manager to complete the coordinated service and support plan must not exceed 56 days.

Section 20 (256B.092, subdivision 1g) amends the developmental disability waiver statute to permit individuals who are currently receiving only Rule 185 case management services to make an informed choice to decline a MnCHOICES reassessment.

Section 22 (256B.4914, subdivision 2) adds a definition of “direct care staff” for the purposes of data collection and reporting requirements in subdivisions 10 and 10a.

Section 24 (256B.4914, subdivision 4) makes conforming changes to cross-references.

Section 25 (256B.4914, subdivision 5, paragraph (k)) adds a competitive workforce factor to the framework rates calculated under the disability waiver rates system (DWRS). The competitive workforce factor decreases over time.  The scheduled implementation dates, factor percentage, and the average estimated rate increase are as follows:

  • beginning January 1, 2019 (2nd ½ of FY 19), the competitive workforce factor is 8.35, resulting in an estimated average rate increase over Feb. 2018 forecasted rates of +7%;
  • beginning July 1, 2019 (FY 20), the competitive workforce factor is 5.5, resulting in an estimated average rate increase over Feb. 2018 forecasted rates of +5.5%; and
  • beginning July 1, 2020 (FY 21) and thereafter, the competitive workforce factor is 1.8, resulting in an estimated average rate increase over Feb. 2018 forecasted rates of +1.6%.

Note: under current law, banding will begin to phase-out during FY 21; or during FY 2020 if federal approval for the seventh year of banding is not received.

Section 26 (256B.4914, subdivision 10) requires the commissioner to collect and evaluate data related to the direct care staff labor market, and expands an existing report to the legislature to include an evaluation of the effectiveness of the competitive workforce factor.

Section 27 (256B.4914, subdivision 10a, paragraph (f)) requires providers to submit to the commissioner labor market data.

Paragraph (g) requires the commissioner to publish an annual report on the labor market for direct care staff that includes an evaluation of the effectiveness of the competitive workforce factor.

Section 28 (256I.03, subd. 8) amends the definition of “supplementary services” by adding a cross-reference to the requirements under Minnesota Statutes, section 256I.04, subdivision 2h (section 3).

Section 29 (256I.04, subd. 2b) requires that providers of housing supports confirm in their housing support agreement that the provider will not limit or restrict the number of hours an applicant or recipient chooses to be employed, as specified in subdivision 5 (section 4).

Section 30 (256I.04, subd. 2h) is a new subdivision that requires providers of supplementary services to ensure that recipients have, at a minimum, assistance with services identified in the individual’s professional statement of need.  This section also requires all providers to maintain case notes with the date and description of services provided to individual recipients.

Section 31 (256I.04, subd. 5) is a new subdivision that prohibits a provider from limiting or restricting the number of hours an applicant or recipient is employed.

Section 32 (256I.05, subdivision 3) modifies the housing support chapter of law, specifically the limits on rates.  The modification in this section maintains rates for clients who meet the same eligibility criteria, but allow the provider to charge a lower rate for individuals who do not qualify for housing support.

Section 33 (Laws 2014 – Disability Waiver Reimbursement Rate Adjustments) repeals the application of the seven percent after-model rate increase to DWRS rates (i.e., framework rates) while continuing to apply the seven-percent increase to “banded” rates. The effective date of the repeal in January 1, 2019, to coincide with the expected implementation date of the competitive workforce factor.

Section 34 (Laws 2017, First Special Session Chapter 6, Article 1, Section 52) require the commissioner, within the context of an existing reporting requirement, to examine the option for a flat-rate payment methodology for MnCHOICES assessments.

Section 35 (Electronic Visit Verification)

Subdivision 2, paragraph (d), clarifies that home health services, medical supplies and equipment, and home and community-based services will be subject to electronic visit verification requirements.

Subdivision 3 requires the commissioner of human services to make a state-selected electronic visit verification system available to all providers by January 1, 2019.

Subdivision 3a, paragraphs (a) and (b), allows providers to select their own electronic visit verification system provided the system meets various requirements established by the commissioner.

Paragraph (c) clarifies the implementation dates by which providers must implement an electronic visit verification system.

Section 36 (Analysis of Licensing Adult Foster Care) requires an analysis of the licensing of adult foster care settings identified by the commissioner.  The commissioner must engage stakeholders and family members in the process of determining if revisions to the definition of residential program are needed, and in developing recommendations.  A summary of the analysis is due to the legislative committees with jurisdiction over human services issues by February 15, 2019.

Section 37 (Direction to the commissioner) requires the commissioner to continue to apply the entire seven percent after-model rate increase to DWRS rates (i.e., framework rates) between July 1, 2018, and December 31, 2018, even though federal financial participation for this rate increase has been disallowed by the Centers for Medicare and Medicaid Services. This language results in all state funding for the seven percent rate increase for an additional six months.

Section 38 (Direction to the Commissioner) permits an existing housing with services establishment providing customized living services under the BI and CADI waivers to redistribute its service capacity to other establishments.

Section 39 (Direction to the Commissioner) requires the Commissioner of Human Services to ensure that the updates to the MnCHOICES assessment tool incorporates a qualitative approach to interviewing.

Section 40 (Revisor's Instruction) directs the revisor to codify the electronic visit verification language in Minnesota Statutes, chapter 256B.

Section 41 (Repealer) repeals the existing paper-based personal care attendant visit verification requirements upon implementation of the electronic visit verification system.

Article 4 – Health Care

Section 1 (256B.0625, subdivision 17, paragraph (c)) requires drivers providing nonemergency medical transportation services (NEMT) who are employed by or subcontractors for seven-county metro-based nonemergency medical transportation providers or taxicabs to individually enroll with the commissioner by January 1, 2019.

Section 2 (256B.0625. subdivision 17d) requires DHS to perform ongoing program integrity audits of NEMT services to ensure that fee-for-service providers are complying with state and federal standards.

Section 3 (256B.0625, subdivision 17e) applies a five-year enrollment exclusion for terminated NEMT providers and requires a one-year probationary period upon reenrollment.

Section 4 (256B.0625, subdivision 17f) requires the commissioner to provide documentation training for providers.

Section 5 (Direction to the Commissioner) requires the commissioner to submit a report to the legislature on the impact on NEMT program integrity of individual driver enrollment in the metro area.

Section 6 (Repealer) repeals the prohibition on the commissioner's use of a broker for the purposes related to NEMT services for ambulatory persons.

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