2019 Legislative Update Book

LE UP GI S DA LA TE TIV E 2019

Ar e por tont he f i r s ty e a rof t he 9 1 ˢ ᵗ L e g i s l a t i v eSe s s i on

June 28, 2019 Welcome to the 2019 Legislative Update Book! We hope you find the contents useful as a reference to help you understand the laws that passed this year and to help you prepare for implementation. We encourage you to use the information you find in these pages to talk with your own staff, elected officials, customers, family members, and community leaders about topics of concern for you.

While the main body of work before legislators this year was the development and passage of our state’s biennial budget, much of our time during the legislative session was spent discussing the issues around elder care protection and negotiating a final agreement: the 2019 Elder Care & Vulnerable Adult Protection Act. You will find several sections in the book covering the three broad areas from this act: prohibitions on retaliation in nursing facilities (effective August 1, 2019) and assisted living facilities (when licensed); electronic monitoring in nursing facilities and senior housing settings effective January 1, 2020; and assisted living licensure, effective August 1, 2021.

The 2019 legislative session was somewhat of an experiment—we are the only state in the country with a split legislature—Senate Republican majority and House Democratic majority. With a new democratic governor and nearly 40 new House members beginning their terms January 1, 2019, there were many “interesting” proposals discussed as well as a clear need for education about our issues. Gov. Tim Walz, as a first-time governor, relied heavily on the draft budget developed by his predecessor, as well as the advice of his new agency directors, in releasing a proposed biennial budget. Unfortunately, he chose to include a package of nursing facility rate reductions totaling nearly $70 million in state share only—a surprising proposal, given the fact the state’s budget was healthy and in the black. As a result, a great deal of our time when not involved in the elder care protection discussions was spent presenting our case on why these cuts were a bad idea. Sometimes what does NOT pass can be our greatest achievement!

We couldn’t have done it without the advocacy and grassroots connections of so many of our members—not only in educating new legislators, but also in actively participating in social media messages and direct outreach when the nursing facility cuts continued to be promoted by the House democratic leadership and the governor’s office.

The “experiment” of the 2019 legislative session did not end in a classic “rush to the finish line” way. Rather, there were days of closed-door meetings involving the governor and legislative leaders making significant decisions about what to include/exclude in the state’s budget, with no input from external stakeholders. They did complete their work nearly on time—it took a few days extension from the adjournment of the “regular” session to pass mammoth spending bills off the House and Senate floors.

There will be a great deal of work to do in the interim: rulemaking for assisted living licensure; developing tools and resources to help members succeed in implementation of new laws; “repair” relationships that were tested during the final negotiations of the session; and begin anew with planning for the 2020 legislative session, scheduled for noon on February 11, 2020.

If you have any questions or need more information about anything you find in this book, do not hesitate to contact me at 952-851-2487. You may also access this book and/or individual pages in an electronic version on our website in the Advocacy section: www.careproviders.org/advocacy.

Sincerely,

Patti Cullen, CAE President/CEO

Care Providers of Minnesota 7851 Metro Parkway, Suite 200 • Bloomington, MN 55425 • Phone 952/854-2844 • MN Toll-Free 800/462-0024 • Fax 952/854-6214 • www.careproviders.org Leading Members to Excellence

7851 Metro Parkway, Suite 200 Bloomington, MN 55425 952-854-2844 / 1-800-462-0024 www.careproviders.org

2019 LEGISLATIVE UPDATE A report to the membership on the first year of the 91st Legislative Session

Patti Cullen, CAE President/CEO Prepared by: Care Providers of Minnesota Advocacy staff

This report does not constitute legal analyses of the changes in law reported herein. For legal opinions on the application of new statutory language to specific fact situations, contact your organization’s legal counsel. This publication may not be reproduced in whole or in part in any form without the written permission of Care Providers of Minnesota. Š Care Providers of Minnesota, Inc., 2019

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2019 Legislative Update Book Table of Contents

I. Session summary ..................................................................................................................13 II. Assisted living licensure a. Assisted living licensure summary ................................................................................21 b. Assisted living director requirement ..............................................................................25 i. Assisted living director decision tree .................................................................27 c. Licensed assisted living site, physical environment & fire safety requirements ............. 29 d. Assisted living license rulemaking ................................................................................31 e. Retaliation prohibited in licensed assisted living facilities ..............................................33 III. Skilled nursing facility/nursing facility a. Retaliation prohibited in nursing facilities ......................................................................37 b. Swing bed cap increase................................................................................................39 c. Nursing facility property ................................................................................................41 d. Nursing facility moratorium exception project funding ...................................................45 e. Relocation of nursing facility beds & consolidations ......................................................47 f. Border city rates ...........................................................................................................51 g. Property Assessed Clean Energy (PACE) for nursing facilities ..................................... 53 IV. Electronic monitoring ............................................................................................................57 V. Home care, housing with services & other community services a. Retaliation prohibited in registered housing with services settings ................................ 67 b. Customized living services provider transfer of capacity ............................................... 71 c. Elderly waiver statute recodification ..............................................................................73 d. Updates to current home care regulations ....................................................................75 e. Billing & documentation requirements for HCBS providers ........................................... 79 f. Elderly waiver customized living incentive grants .........................................................83 g. Housing access grant modification to population served............................................... 85 h. PCA enhanced rate allows for elderly monthly case mix budget cap increase .............. 87 i. CADI—Tiered standards, customized living & integrated community supports ............. 89 j. Modification to housing support contracts .....................................................................91 k. Assurance of supplementary services from housing supports providers ....................... 93 l. EW, CADI, CL & home care providers to submit annual labor market information ........ 95 m. Disability waiver rate setting changes, including 4.7% workforce factor ........................ 97 VI. Minnesota Department of Human Services a. Vendor accountability & DHS program integrity .......................................................... 101 b. DHS licensing changes ..............................................................................................103 c. Modifications to HCBS standards in 245D programs .................................................. 105 d. Long-term care consultation (MnCHOICES) modifications ......................................... 107 VII. Miscellaneous a. Opioids—Council & stewardship fund established; fees & revenue requirements ....... 111 b. Epinephrine auto-injector expansion ........................................................................... 113 c. Wage theft ..................................................................................................................115 d. Limits on receiving public funds ..................................................................................117

e. f. g. h. i. j. k.

Changes to the Board of Examiners for Nursing Home Administrators fees ............... 119 Medical cannabis—Changes to registered designated caregiver ................................ 121 False Claims Act civil penalties...................................................................................123 Blue Ribbon Commission established......................................................................... 125 Nonemergency medical transportation program integrity ............................................ 129 Prescription drug repository program established ....................................................... 131 Mental health provisions .............................................................................................133

VIII. Reports a. DHS reports required by legislature ............................................................................ 137 b. Integrated community supports setting capacity report ............................................... 139 IX. Studies a. DHS to study reconfiguration of DD & CADI waivers .................................................. 143 b. New PCA rate methodology to be studied .................................................................. 145 c. Recommendations to increase use of supportive technology ..................................... 147

SESSI ON

s ummary

2019 Session Summary

The November 2018 elections translated into big changes for Minnesota’s 2019 legislative session; the elections translated into a new governor, and an entirely new cabinet, and a new House majority led

by Minnesota Democrat Melissa Hortman as the House speaker.

Governor Minnesota elected a new governor—Democrat Tim Walz. Former US Congressman Walz beat Republican Jeff Johnson with a 54% to 42% advantage. Gov. Walz brought in a new cabinet and new staff to begin the transition from campaigning to governing. First up on his plate right after the election was pulling together a biennial budget proposal for the coming legislative session discussions.

Minnesota Senate The control of the Minnesota Senate came down to one race—Senate District 13. This open seat resulted when Sen. Michelle Fishbach became the lieutenant governor to Mark Dayton and decided to join the “Tim Pawlenty for Governor” campaign as lieutenant governor. The race featured Jeff Howe (R) who represented the southern part of the district in the House of Representatives, and Joe Perske (D) who is a county commissioner in the area. Jeff Howe emerged victorious in 58% to 42%, keeping the Minnesota Senate in Republican majority.

The Senate Republicans retained Sen. Paul Gazelka (R–Nisswa) as majority leader, and elected a new Senate president, Sen. Jeremy Miller (R–Winona). The Senate further expanded their majority when Sen. Tony Lourey (DFL–Kerrick) was appointed DHS commissioner and the Republican, Jason Rarrick (R–Pine City), won the Senate District 11 Special Election.

Minnesota House of Representatives House Republicans held a wide advantage heading into the fall elections. They continued “banking” on the rural message and Trump’s popularity in outstate Minnesota to bring them back in the majority, but retirements of popular incumbents in swing seats, along with Trump’s disastrous numbers in the suburbs, put them at risk. In the end, the number of suburban losses led to a flipping of the House from Republican to Democratic majority. Democrats needed 11 more seats and they took 18, so they held a 75–59 lead over the republicans. That meant a new House speaker, majority leader, and committee chairs, as well as a lot of education for the 39 new house members.

The new Speaker of the House was Melissa Hortman, who had served as their minority leader. The quote from election night from Rep. Hortman (verbatim): “Paul Gazelka is someone who believes in the institution of the House and the Senate and the legislature doing their work…I think Paul Gazelka will be a practical person as far as getting things done. We have some unfinished business from the last session, we didn’t do anything on the opioid abuse epidemic, the nursing home abuse and neglect problem, or the tax conformity bill…” This “starting point” quote had everyone thinking the session might end more smoothly than the last several sessions.

The House of Representatives elected the other leadership positions: Majority Leader Ryan Winkler (DFL–Golden Valley), and Majority Whip Liz Olson (DFL–Duluth). Winkler is entering his sixth term—he served from 2007 until he resigned his seat in 2015 to move overseas with his family. Winkler returned to the country last year and ran for and won his previous House seat. Liz Olson is in her second term and served on the House Aging Committee last legislative session. House Republicans retained current House Speaker Kurt Daudt (R–Crown) as their minority leader.

Session process With all new chairs in the House, the process moved along in fits and starts. Putting together a budget, scheduling hearings, and hearing all important bills in all of the necessary committees resulted in a bit of a learning curve for the new majority. Meanwhile, the Senate had different priorities and different

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timeframes, and although the Senate chairs had been through one previous budget cycle, they had to figure out how to work with the new governor and the House.

In the beginning, things went fairly smoothly as the leadership was saying the right things about having differences, but needing to work things out; the need to work together; and the need to work in a bipartisan manner for “One Minnesota.” Once they agreed on the deadlines for the various bills to clear all of the necessary committees, session started humming along. With the release of the February forecast, they realized they had less money in the budget than November, and things got tighter. As they moved through session and started having more floor sessions, the House sessions got feistier, and the fireworks were going off on several different “hot button” issues that were voted on and passed on the floor. The Senate, on the other hand, had fewer long and heated arguments, as many of the controversial issues that the House debated were not brought over to the Senate.

As they neared the last weeks of session, it became apparent the House, Senate, and governor were having problems agreeing on how much to spend. They missed the agreed-upon date for “budget targets” and the conference committee work slowed to a crawl while leadership negotiated on how much money to spend. The inexperience of the Governor and House started to show as the clock started to run out without the targets and work grinding to a halt.

Ultimately, they would need “special session” to complete their work, as they did not arrive at a global budget deal until the evening of Sunday, May 19. The state constitution dictates that “the legislature shall not meet in regular session, or in any adjournment thereof, after the first Monday following the third Saturday in May of any year” which meant the regular legislative session ended on May 20 before the conference committees were to finalize their budget bills with the new targets.

This work of the Conference committees went on during the week of May 20. As legislators buttoned up their work, the sticky issues would go to “tribunals” as the chairs of conference committees met with Speaker Hortman, Majority Leader Gazelka, and relevant commissioners to bridge the vast gaps between the language in their bills and final funding compromise. After failing to pass the agreed upon budget deal by the final day of regular session, the morning of Friday, May 24 marked both legislative bodies gaveling into the special session as the governor called legislature back to complete nine policy and one bonding bill between 10:00 AM on May 24 through 7:00 AM on May 25.

The 2019 legislative session went out relatively quietly and under the radar, as both House and Senate took their final motion to adjourn the special session sine die, or without a formal return date. Within minutes of their 7:00 AM deadline, both bodies had completed their work for the year, having passed all nine omnibus bills, with the exception of one bonding bill, and came in at the $48.3 billion dollar budget. The start of the next “regular” session is set for Tuesday, February 11, 2020.

The following is a short summary of several of the larger topics of discussion during the legislative session.

Assisted living licensure On Sunday, May 19, 2019, the Minnesota Senate and House passed important legislation that includes a series of protections for elderly and vulnerable Minnesotans and an extensive framework for the licensure of assisted living facilities. The Elder Care & Vulnerable Adult Protection Act of 2019 (HF90) is a significant reform to state law for elder care, especially for assisted living services.

The bill was the product of hundreds of hours of discussions over the past few years with major stakeholders and advocacy groups, including state regulators from the Departments of Health (MDH) and Human Services (DHS), Care Providers of Minnesota, AARP Minnesota, LeadingAge Minnesota, Minnesota Elder Justice Center, LTC Ombudsman, Elder Voices Family Advocates, and Alzheimer’s Association.

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The legislation includes a comprehensive package of consumer protections designed to ensure the rights of elderly and vulnerable adults, including protections for residents against retaliation in nursing facilities or assisted living facilities and a clear process for residents to appeal a termination of the assisted living housing or services.

The bill also enhances oversight of the state Office of Health Facility Complaints (OHFC) and provides needed funding for the Office of the Ombudsman of Long-Term Care. In addition, the bill contains provisions giving nursing facility and assisted living residents the explicit right to use electronic monitoring devices in their rooms. Finally, the bill includes an extensive framework for licensing assisted living facilities in Minnesota.

Once the new licensure system is in place, the current housing with services system will be eliminated for most providers (with a few categorical exemptions). There are two levels of licensure, one for assisted living facilities and another for facilities with dementia care services, which are subject to additional training requirements. Additional details can be found in other pages of this summary.

Education The outcome for education came out at about 6.8% over the current biennium—compared to the initial $1.6 billion proposed by the House, $1.4 billion proposed by the governor, and $940 million proposed by the Senate. Both House and Senate, in the course of a lengthy conference committee process, adopted the governor's shift to a special revenue account, also proposing increases in the funding for scholarships. Such funding increases are concentrated on increasing the annual basic funding formula.

The 2% increases each year of the biennium are aimed at assisting school districts in adjusting to the rising cost of special education and provisional funding for Governor Dayton's universal pre-K program.

Healthcare Though the two bills entering the Health & Human Services committees came into the conference committee process miles apart, the final, compromised-upon bill emerged in time for an informal hearing in both bodies in just over twelve hours before both House and Senate adjourned the special session. Both parties bent in the process of negotiations, and a good compromise was reached in a number of areas.

Many policy provisions from the 1,000+ page House omnibus did not make it through the finish line, such as Governor Walz's public health insurance option, or ONECare. Without any updates, the HHS budget had a predicted $1.1 billion of growth in the next two years. Through negotiations and the final global budget agreement, this growth was cut down to a budget of $14.5 billion, with the creation of a Blue Ribbon Commission responsible for bringing the HHS system into a more efficient and effective state.

Outside of the budgetary negotiations, two major pieces of policy, pharmaceutical benefit manager licensure and regulation, and the establishment of an opioid stewardship council made it past the finish line in the final days of session. The proposed $68 million in cuts to nursing facilities by Gov. Walz and the House DFL were also defeated in the negotiation process.

One of the major points of controversy and disagreement in the 2019 session was the healthcare provider tax, which at 2%, serves as a major point of revenue for the Healthcare Access Fund.

Supported by the House DFL and Gov. Walz, the Senate GOP preferred allowing the tax to sunset and draw funding from the general fund. A key point in the global budget agreement, the provider tax will remain indefinitely at a lowered 1.8%.

Among the areas of compromise was the extension of the reinsurance program for an additional three years. During the regular session, this language passed through the Senate, but was contrasted by the House's carrying of Gov. Walz's direct premium subsidies. Ultimately, compromise was reached, and the three-year extension of the program agreed upon.

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Taxes Starting off the session with conflicting tax proposals, lawmakers at the Minnesota legislature spent the final days of session debating the differences between the Senate and House/governor's plans. The former brought Minnesota into compliance with new federal law while providing relief to businesses to offset the costs of conformity, while the latter included increases in the taxes on businesses in order to comply with new federal base-broadening provisions.

Ultimately, the compromise reached by legislative leaders resulted in a net increase in business taxes through federal TCJA tax conformity (including adopting the deemed repatriated foreign income and GILTI/FDII provisions), data center sales tax exemption limits, and business property tax increases.

However, the final agreement does not include foreign income provisions and does include a modest reduction in the individual income tax and state business property tax.

Environment The environment & natural resources budget emerged from the conference committee process with no significant changes. With an appropriated $13.78 million, this budget provides agency funding for the Department of Natural Resources (DNR) and Board of Animal Health.

Following debate over turtle-racing, wolf-hunting, and a wild rice task force, compromise was reached in some areas, such as in policy surrounding addressing chronic wasting disease in farmed cervidae and an aquatic invasive species surcharge.

Transportation The transportation budget emerged from the “tribunals” of the week’s beginning sans increases in tab fees and the tax on fuel. Chair Hornstein in the House labeled the bill as “status quo” as it exited the conference committee process without many of the provisions he had hoped would make it through. Many pundits believed the 20-cent fuel tax proposed by the Walz administration and adopted by the House DFL would not become law because of the consistent unpopularity of gas taxes. Many politicos around the Capitol thought that a compromise would be reached and perhaps as much as a 10-cent tax may advance. Given the myriad of other revenue increases being sought by the governor and DFL, it became too unwieldy to discuss the fuel tax in a vacuum and have a discussion strictly on its merits. Gov. Walz still supports increasing the fuel tax to fund roads and bridges, and I suspect it will be discussed again in 2020.

The conference committee report does include compromise in the replacement of MNLARS, vehicle platooning authorization language, and just over $97 million in general fund appropriations.

Labor Wage theft was one of three major provisions moving through the DFL-led House of Representatives this year. The remaining two, paid family leave and earned sick and safe time, fell by the wayside during negotiations in the last few days of regular session.

The wage theft language that looks to be on its way to the governor's desk is scaled back in a number of ways from the original proposal. Authored by Rep. Mahoney, chair of the House Jobs committee, it had a very good chance to make it to the finish line from the get-go. Chair Mahoney quoted the bill as being one he would always remember. As currently drafted, the bill gives the commissioner of the Department of Labor & Industry (DLI) less investigative power and employers more compliance time with respect to records requests.

In its current and final state passed on May 25, the provision is much more intentional in its scope of targeting those who commit wage theft. This intentionality includes protections, known as the “intent to defraud standard” for employers who inadvertently error in paying wages in order to prevent the

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designation of employers who honestly make such a mistake as committing wage theft.

A priority of the House legislative leadership, paid family and medical leave (PFML), didn’t emerge from the negotiation process. The House policy would have led to the establishment of a state-run PFML insurance program. Through this program ,funded by a new payroll tax on employers and employees, each employee would have received up to 12 weeks of paid leave for serious health or pregnancy and 12 weeks paid leave for family care or parental leave.

Met by opposition on the grounds that it imposed a burdensome tax on employees and employers, and added administrative requirements on a benefit already provided by many employers. Though this provision was included in the House Jobs omnibus bill, it was defeated during the process of conference committee negotiations between House and Senate.

Another House proposal that became a huge labor issue during the course of session was sick and safe time. Much like PFML, this benefit provision made it into the House jobs omnibus bill and into the negotiation process. This provision would have mandated employers to provide sick and safe leave. It failed to gain support in the Senate over the concern that the proposal would impose burdensome administrative requirements and potentially subjected harsh penalties on employers.

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ASSI STEDLI VI NG l i c ens ure

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Assisted living licensure summary Regular session, HF90—Chapter 60 Assisted living licensure bill Effective: Various Short description The 150-page assisted living licensure bill is a compilation of current and new laws intended to establish clarity of expectations for assisted living facilities and guidance to the state agency responsible for licensing such entities and survey for compliance. Knowing and understanding all of the requirements will be essential prior to the August 1, 2021, implementation date.

Summary Assisted living licensure framework The licensure framework will apply to all assisted living settings; there are specific exemptions from this licensure, such as transitional housing, residential settings under 245A, and privately-owned communities, such as co-ops. There will be two levels of licensure: assisted living and assisted living with dementia care. The license will cover all services, unit lease, and physical plant requirements.

Residents will still have the option to receive services from an outside provider. The rulemaking process will start on July 1, 2019, to detail out some of the specific provisions.

Licensure fees There will be new licensure fees begining in 2021 and are set at a level to support surveys every other year. Assisted living fees will be $2,000 per building plus $75.00 per resident. Assisted living with dementia care fees will be $3,000 plus $100.00 per resident. Rulemaking will include a discussion of setting separate fee rates for providers serving a larger percentage of residents under the Elderly Waiver program and setting a maximum rate for licensure.

Minimum assisted living facility requirements This bill details general expectations of all assisted living facilities such as: distributing the bill of rights; providing service in compliance with the Nurse Practice Act; developing and implementing a staffing plan; ensuring one or more persons are available 24 hours/day who are awake; a listing of services that must be provided or made available (such as food, housekeeping, laundry, etc.); a list of policies and procedures; requiring an infection control program; requiring resident and family councils; and delineating a resident grievance procedure. It should be noted that many of these requirements are already in place under the comprehensive home care license law.

Assisted living bill of rights The comprehensive home care bill of rights was used as the base for the new assisted living bill of rights with a few additions/enhancements. For example, the right to organize and participate in resident and/or family councils was inserted as a right, as are rights to place an electronic monitoring device and additional discharge protections.

Business operations Several operational requirements can be found under this section of law including the following: • Provisions related to how to handle resident finances and property, including a requirement to provide a final statement and funds within 30 days of a termination or death • Facility must develop and implement an individualized abuse prevention plan for each resident • Specific employee records must be maintained • Facility must establish and maintain a comprehensive tuberculosis infection control program • Written emergency disaster plan and emergency and disaster training for all staff Resident assessment & services Key to ensuring we minimize the numbers of involuntary terminations or nonrenewals of housing is making sure those moving into our assisted living facilities can be served; that there is an awareness of 21

service needs; and that there is a process in place for reassessments and communication as needs change. Each resident moving into each licensed assisted living facility who will be receiving services from the assisted living facility must have an assessment conducted by a registered nurse prior to the move-in date, or contract execution date, whichever is earlier. Resident reassessment needs to be conducted within two weeks after initiation of services and a written service plan developed. In addition, a uniform checklist of services available/unavailable will be developed so residents and families will know prior to moving in which services can be provided at each location.

Medication management Much of the language regarding medication management for comprehensive home care settings was moved into the assisted living law. An assisted living facility that provides medication management services must develop, implement, and maintain specific medication management policies and procedures. The law specifies who can delegate medication administration and how; documentation requirements; medication management for residents who will be away from home; and storage and disposition of medications.

License applications & controlling individual restrictions The new law gives the commissioner of health authorizations to deny licensure—initial or renewal— under certain circumstances, such as prior negative survey history with nursing facilities or other assisted living facilities (establishes stays of revocations or non-renewals under certain conditions).

Physical plant On or after August 21, 2021, MDH Engineering will be reviewing and must approve architectural and engineering plans for new assisted living construction.

On or after August 21, 2021, MDH Engineering will be conducting on-site inspections of each licensed assisted living building, on a frequency of at least once every two years. It is our assumption this building inspection will coincide with the survey of the licensed assisted living facility.

On or after August 21, 2021, each assisted living facility must have a comprehensive fire protection system to include the following: • Approved sprinkler system or smoke detectors in each occupied room • Portable fire extinguishers • Physical environment kept in a “continuous state of good repair and operation” • Fire drills conducted in accordance with Life Safety Code • Compliance with most current edition of Life Safety Code, “Residential Board and Care Occupancies” chapter • New building requirements based on current edition of codes after August 1, 2021 • Design requirements after July 31, 2021, based on Facility Guidelines Institute “Guidelines for Design and Construction of Residential Health, Care and Support Facilities” • The facility shall be protected throughout by an approved, supervised, automatic sprinkler system by August 1, 2029 • New buildings must have building plans reviewed by MDH—the Engineering division of licensing will be doing these reviews The law includes provisions for requesting a waiver or variance and notes the process and conditions for doing so.

Assisted living contract requirements All current contracts with residents will need to be revised to take into account a singular license (rather than a separate lease and service agreement) as well as the specific provisions that must be included in the contract included in this law. The language in the bill does not preclude a facility from creating a

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two-part contract with one part describing the lease expectations and the other part delineating the services.

New procedures for contract terminations & consumer appeal rights There are new notice and discharge planning requirements for situations that require a contract termination and a new appeals process with the Office of Administrative Hearings for consumers wishing to contest a contract termination. There are separate terms and processes for termination for nonpayment, termination for violations of the contract, and expedited termination where there are health and safety issues involving other residents or facility staff. Emergency relocations are allowed with specific notice requirements; however, a facility shall not refuse to allow a resident to return if a termination of housing has not been effectuated. For situations where a facility just decides not to renew a resident’s housing under a contract, there are requirements that the facility either give 60 days’ notice of the nonrenewal and help with relocation planning or follow the termination procedure.

Regardless of how a resident is moved from the facility (termination, service reduction, planned closure), there are requirements for facilities to help coordinate the move, including development of a relocation plan that includes a “safe location.”

Surveys & fines Surveys will be conducted at least once every two years, with details on when follow-up surveys will be required/optional. The law delineates the fines associated with non-compliance at each level and defines the level and scope of violations. The commissioner MAY issue immediate fines for level 3 and level 4 correction orders or findings of maltreatment. The law further specifies a reconsideration of correction orders and fines process and the various remedies available to the commissioner for enforcement.

Retaliation prohibited Retaliation against residents/families/employees was an important issue for the consumer advocates, as there were many examples provided where the families felt they were being retaliated against if they complained formally or informally; or placed an electronic monitoring device in a resident’s room. This new law states that an assisted living facility or agent of the facility may not retaliate against a resident or employee if the resident, employee, or person acting on behalf of the resident, files a good-faith complaint, grievance, or maltreatment report or places an electronic monitoring device in the room. What constitutes retaliation against a resident is further defined and includes actions such as: discharges or transfers; restrictions or prohibition of access; restriction of rights; and unauthorized removal or tampering of electronic monitoring devices. Retaliation against an employee for reporting complaints/grievances includes unwarranted discharge or transfer; demotions or refusal to promote; reduction in compensation; and imposition of discipline. The commissioner can take enforcement action if it was determined that a retaliatory action took place within 30 days of a complaint or related activity happening.

Resident Quality of Care & Outcomes Improvement Task Force This new task force is to be established by July 1, 2020, with specified members and the goal of periodically providing recommendations on changes needed to promote safety and quality improvement practices on long-term care settings and with long-term care providers.

Dementia care Additional requirements are identified for assisted living facilities that advertise, market, or otherwise promote as providing specialized care for individuals with Alzheimer’s disease or other dementias. An assisted living facility with a secured dementia care unit must be licensed as an assisted living facility with dementia care. Facilities with this designation must demonstrate the capacity to manage residents with dementia, comply with the additional staffing and staff training requirements, and provide some specific services as needed by each resident. It is optional for assisted living facilities with dementia care to have secured units; however, if they have a secured unit, there are additional staffing and physical plant requirements.

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“I’m okay” checks Concerns about independent living settings providing services without accountability and transparency for consumers led to a section of law titled “I’m okay” check services. Unlicensed settings, which provide sleeping accommodations to one or more adults, at least 80% of which are 55 years of age or older, and offering or providing for a fee any supportive services (like housekeeping, meals, laundry, etc.) must disclose in a written contract whether they will offer “I’m okay” checks. If the resident contracts for “I’m okay” check services in this otherwise independent living setting, there must be details on the nature, extent, and frequency in the contract.

New qualifications for assisted living directors Assisted living directors will be ultimately in charge of the assisted living facility, so the law builds in initial requirements and ongoing training for this position. The examination and continuing education will be monitored by the Board of Executives for Long-Term Services & Supports (formerly the nursing home examiner board). In order to be qualified to serve as an assisted living director, an individual must: 1. have completed an approved training course and passed an examination approved by the board that is designed to test for competence and that includes assisted living facility laws in Minnesota; 2. (i) currently be licensed as a nursing home administrator or have been validated as a qualified health services executive by the National Association of Long-Term Care Administrator Boards; and (ii) have core knowledge of assisted living facility laws; or 3. apply for licensure by July 1, 2021, and satisfy one of the following: a. have a higher education degree in nursing, social services, or mental health, or another professional degree with training specific to management and regulatory compliance; b. have at least three years of supervisory, management, or operational experience and higher education training applicable to an assisted living facility; c. have completed at least 1,000 hours of an executive in training program provided by an assisted living director licensed under this subdivision; or d. have managed a housing with services establishment operating under assisted living title protection for at least three years.

Maltreatment compensation fund Consumer advocates expressed concerns that there were few additional protections available to consumers until the assisted living licensure law went into effect. As a result, under the home care statutes, once a finding of maltreatment for which the licensee is determined to be responsible is substantiated, the client can receive a compensation payment of either $1,000 or $5,000 depending on the level of maltreatment. The fine is paid by the home care agency to the commissioner, who, in turn, pays the compensation payment. The client can either choose this compensation payment, or take action civilly, but not both. This section expires on July 31, 2021, right before assisted living licensure is implemented.

Implications The implications for current registered housing with services buildings and home care providers serving clients in these registered settings are significant. The summary above is not all-inclusive due to the level of detail incorporated into the negotiations for this significant new law. Over the next two years Care Providers of Minnesota will be updating materials for members, including sample policies and resource manuals. Reference documents, such as visual flowsheets on who must be licensed, as well as our frequently-asked-questions documents, can be found in the members-only section of the Care Providers of Minnesota website at: https://www.careproviders.org/NewAL Bill language Chapter 60 (https://www.revisor.mn.gov/laws/2019/0/Session+Law/Chapter/60/)

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Assisted living director requirement

Regular session, HF90—Chapter 60, Article 1, Section 2, Subdivision 6; and Article 4, Section 9 Assisted living licensure bill Effective: July 1, 2020 Short description All licensed assisted living facilities and assisted living facilities with dementia care will be required to be managed by a licensed assisted living director. The Board of Executives for Long-Term Services & Supports (formerly BENHA) will be the agency to govern the license.

Summary Assisted living and assisted living with dementia care facilities will be required to hire a licensed assisted living director. This new statute outlines the three different pathways to obtain this licensure.

The flow chart on the following page clearly identifies these pathways.

Implications At the time this of publication, the standards and training requirements, as well as the examination for assisted living director licensure had not been determined.

Bill language Chapter 60, Article 1, Section 2, Subdivision 6; and Article 4, Section 9: https://www.revisor.mn.gov/laws/2019/0/Session+Law/Chapter/60/ ARTICLE 1—ASSISTED LIVING LICENSURE Sec. 2. [144I.01] DEFINITIONS. Subd. 6. Assisted living director. "Assisted living director" means a person who administers, manages, supervises, or is in general administrative charge of an assisted living facility, whether or not the individual has an ownership interest in the facility, and whether or not the person's functions or duties are shared with one or more individuals and who is licensed by the Board of Executives for Long Term Services and Supports pursuant to section 144A.20.

ARTICLE 4—ASSISTED LIVING LICENSURE CONFORMING CHANGES; DIRECTOR LICENSURE Sec. 9. Minnesota Statutes 2018, section 144A.20, is amended by adding a subdivision to read: Subd. 4. Assisted living director qualifications; ongoing training. (a) The Board of Executives may issue licenses to qualified persons as an assisted living director and shall approve training and examinations. No license shall be issued to a person as an assisted living director unless that person: (1) is eligible for licensure; (2) has applied for licensure under this subdivision within six months of hire; and (3) has satisfactorily met standards set by the board or is scheduled to complete the training in paragraph (b) within one year of hire. The standards shall be designed to assure that assisted living directors are individuals who, by training or experience, are qualified to serve as assisted living directors. (b) In order to be qualified to serve as an assisted living director, an individual must: (1) have completed an approved training course and passed an examination approved by the board that is designed to test for competence and that includes assisted living facility laws in Minnesota;

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(2)(i) currently be licensed as a nursing home administrator or have been validated as a qualified health services executive by the National Association of Long-Term Care Administrator Boards; and (ii) have core knowledge of assisted living facility laws; or (3) apply for licensure by July 1, 2021, and satisfy one of the following: (i) have a higher education degree in nursing, social services, or mental health, or another professional degree with training specific to management and regulatory compliance; (ii) have at least three years of supervisory, management, or operational experience and higher education training applicable to an assisted living facility; (iii) have completed at least 1,000 hours of an executive in training program provided by an assisted living director licensed under this subdivision; or (iv) have managed a housing with services establishment operating under assisted living title protection for at least three years. (c) An assisted living director must receive at least 30 hours of training every two years on topics relevant to the operation of an assisted living facility and the needs of its residents. An assisted living director must maintain records of the training required by this paragraph for at least the most recent three-year period and must provide these records to Department of Health surveyors upon request. Continuing education earned to maintain another professional license, such as a nursing home administrator license, nursing license, social worker license, mental health professional license, or real estate license, may be used to satisfy this requirement when the continuing education is relevant to the assisted living services offered and residents served at the assisted living facility.

EFFECTIVE DATE. This section is effective July 1, 2020.

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Assisted Living Director Licensure

By August 1, 2021, each Licensed Assisted Living Facility in Minnesota must be managed by a Licensed Assisted Living Director. There are three “routes” available to become a Licensed Assisted Living Director:

OPTION 1 (to be developed)

Has completed an approved training course and passed an examination approved by the Board of Executives for Long Term Services and Supports (formally BENHA) that is designed to test for competence and that includes assisted living facility laws in Minnesota

OPTION 2

Is a Licensed Nursing Home Administrator or has been validated as a Qualified Health Services Executive by the National Association of LongTerm Care Administrator Boards (NAB) and has a core knowledge of Minnesota Assisted Living laws (how to define and measure core knowledge is still to be determined)

OPTION 3

(“grandfathering” options)

Apply for licensure by July 1, 2021 AND satisfy at least ONE of the following requirements

Has a higher education degree in nursing, social services, or mental health, or another professional degree with training specific to management and regulatory compliance

Has completed at least 1,000 hours of an director/ executive in training program provided by a licensed assisted living director

Has managed a registered housing with services establishment under assisted living title protection for at least three years

Has at least three years of supervisory, management, or operational experience and higher education training applicable to an assisted living facility

Assisted Living Director licenses will be managed by the Minnesota Board of Executives for Long Term Services and Supports (formerly the Board of Examiners for Nursing Home Administrators/BENHA).

Each Licensed Assisted Living Director must receive at least 30 hours of training every two years on topics relevant to the operation of a Licensed Assisted Living Facility and the needs to its residents. If the Licensed Assisted Living Director is managing a Licensed Assisted Living with Dementia Care, the Director must complete and document that at least 10 hours of the required 30 hours of training relate to the care of individuals with dementia.

Care Providers of Minnesota 5/19

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Licensed assisted living site, physical environment & fire safety requirements Regular session, HF90—Chapter 60, Article 1, Section 25 Assisted living licensure bill Effective: August 1, 2021, with one requirement date of August 1, 2029

Short description The Engineering Services program at the Minnesota Department of Health proposed numerous assisted living building requirements to the assisted living licensure process. Many of the proposals were negotiated out of the final language, but many remained in the final bill. Following is what remained.

Summary Effective August 1, 2021, each licensed assisted living facility must comply with the following: 1. Have public utilities available and working or inspected and approved water and septic systems must be in place 2. Be accessible to fire department services and emergency medical services 3. Have natural drainage that is not subject to flooding 4. Have roads and walkways within the lot lines to the primary entrance and service entrance, including parking lots 5. Have space for outdoor activities for residents 6. Have a comprehensive fire protection system that includes the following: i. Smoke detectors in each occupied room (they can be battery operated and do not need to be connected to an external alarm system, but must be testing and maintained according to manufacturer’s directions) or protection throughout by an approved automatic building sprinkler system ii. Have installed portable fire extinguishers (tested and maintained) iii. A physical environment that is kept in a continuous state of good repair and operation with regard to the health, safety, comfort, and well-being of the residents iv. A documented maintenance and repair program 7. Conduct fire drills in accordance with the residential board and care requirements of the NFPA Life Safety Code (NFPA 101 33.7.3–33.7.36) a. This requires “emergency and relocation drills” at least six times per year, on a bimonthly basis, with not less than two drills conducted during the night when residents are sleeping b. The drills may be announced in advance and must include use of an assembly point and the experience of egressing through all exits and means of escape c. Those residents who cannot meaningfully assist in their own evacuation or who have special health problems are not required to actively participate in the drills 8. Maintain the building in a manner that does not constitute a distinct hazard to life—existing construction or elements, including assisted living facilities that were registered as housing with services establishments under chapter 144D prior to August 1, 2021, shall be permitted to be continued in use provided such use does not constitute a distinct hazard to life a. Any existing elements that an authority having jurisdiction deems a distinct hazard to life must be corrected b. The facility must document in the facility's records any actions taken to comply with a correction order and must submit to the commissioner for review and approval prior to correction 9. Comply with all applicable state and local governing laws, regulations, standards, ordinances, and codes for fire safety, building, and zoning requirements.

10. All assisted living facilities with six or more residents must do the following: i. Meet the provisions relevant to assisted living facilities in the most current edition of the Facility Guidelines Institute "Guidelines for Design & Construction of Residential Health, Care, and Support Facilities" and of adopted rules 29

a. This minimum design standard must be met for all new licenses, new construction, modifications, renovations, alterations, changes of use, or additions b. In addition to the guidelines, assisted living facilities shall provide the option of a bath in addition to a shower for all residents c. The most recent guidelines shall be utilized when published ii. Meet the applicable provisions of the most current edition of the NFPA Standard 101, Life Safety Code, Residential Board & Care Occupancies chapter a. The minimum design standard shall be met for all new licenses, new construction, modifications, renovations, alterations, changes of use, or additions b. The most recent code shall be utilized when published In addition, those assisted living facilities that are licensed for dementia care and have secured units, have the following additional building requirements: 1. The facility shall conduct and document a hazard vulnerability assessment or safety risk assessment performed on and around the property—the hazards indicated on the assessment must be assessed and mitigated to protect the residents from harm 2. The facility shall be protected throughout by an approved supervised automatic sprinkler system

by August 1, 2029 3. The facility shall comply with the applicable provisions of the most current edition of the NFPA Standard 101, Life Safety Code, Healthcare (limited care) chapter a. The minimum design standards shall be met for all new licenses, new construction, modifications, renovations, alterations, changes of use, or additions For all new licensure and construction beginning on or after August 1, 2021: 1. the facility shall submit architectural and engineering plans to MDH for review and approval; 2. unless construction is begun within one year after approval of the final working drawing and specifications, the drawings must be resubmitted for review and approval; 3. MDH must be notified within 30 days before completion of construction so that arrangements for a final inspection of the facility; and 4. at least one set of complete life safety plans, including changes resulting from remodeling or alterations, must be kept on file in the facility.

A facility may request that the commissioner grant a variance or waiver from the minimum site, physical environment, and fire protection safety requirements. Components and process for a variance or waiver request are outlined in the statute. Physical plant surveys shall be conducted by MDH on a frequency of at least every two years. MDH has shared they plan on hiring additional staff in the Engineering Services program to conduct the physical plant inspections.

Implications If your HWS setting is not currently fully sprinkled, begin planning for the installation of smoke detectors in all occupied rooms or start planning on how you will sprinkle the building. Verify that you have portable fire extinguishers installed and that they are on a testing and maintenance program. Verify that your HWS setting has a documented maintenance and repair program—if not, begin planning one.

Begin planning fire drills that comply with the Residential Board & Care requirements of the NFPA Life Safety Code (NFPA 101 33.7.3–33.7.36).

If your HWS setting intends to have a secured unit under the assisted living license with dementia care, and the building is not currently fully sprinkled, begin planning to have the building fully sprinkled by August 1, 2029. In the meantime, you need to install smoke detectors in all occupied rooms.

It is unclear if MDH will be conducting physical plant inspections prior to issuing assisted living licenses.

Bill language Chapter 60, Article 1, Section 25: https://www.revisor.mn.gov/laws/2019/0/Session+Law/Chapter/60/ 30

Assisted living license rulemaking

Regular session, HF90—Chapter 60, Article 1, Section 41 Assisted living licensure bill Effective: July 1, 2019 Short description There were many details regarding the new assisted living licensure law that were unable to get negotiated during the session. These important topics were assigned to rulemaking. The legislature often directs state offices to propose rules to implement the statues they are responsible for. Rules provide clarity and uniformity to fill in details that were not necessary to put directly in the statutes. The agency assigned to the rulemaking must follow a specific process laid out in statute. The required process includes the following: • The office must give notice that they are considering adopting rules and request public comment on what rules should be proposed • The office may propose rules any time after the end of the 60-day comment period but no later than 18 months after the date of the law authorizing the creation of rules • The office must give public notice of what rules they are proposing, and why the office is proposing the rules • The public must be given an opportunity to provide comments to the proposed rules • The office carefully considers all comments when proposing rules • A public hearing may be held on the proposed rules • An administrative law judge will review proposed rules and all public comments to make a final determination on whether the proposed rules are needed and reasonable The rulemaking process is to begin July 1, 2019, and will be led by the Minnesota Department of Health (MDH). MDH is assigned to publish any proposed rules by December 31, 2019, and publish final rules

by December 31, 2020. The overall rulemaking assignment is as follows: “The commissioner shall adopt rules for all assisted living facilities that promote person-centered planning and service delivery and optimal quality of life, and that ensure resident rights are protected, resident choice is allowed, and public health and safety is ensured.” Care Providers of Minnesota will be deeply involved in the rulemaking process.

Summary Specific topics to be addressed in the rulemaking process include the following: 1. Staffing appropriate to the two licensure categories to best protect the health and safety of residents, no matter their vulnerability 2. Training prerequisites and ongoing training, including dementia care training and standards for demonstrating competency 3. Procedures for discharge planning and ensuring resident appeal rights 4. Initial assessments, continuing assessments, and a uniform assessment tool 5. Emergency disaster and preparedness plans 6. A uniform checklist disclosure of services 7. A definition of serious injury that results from maltreatment 8. Conditions and fine amounts for planned closures 9. Procedures and timelines for the commissioner regarding termination appeals between facilities and the Office of Administrative Hearings 10. Considering the establishment of a maximum amount for any one fee 11. Procedures for relinquishing an assisted living facility with dementia care license and fine amounts for noncompliance 12. Procedures to efficiently transfer existing housing with services registrants and home care licensees to the new assisted living facility licensure structure (transition) Rulemaking is not limited to the topics listed above.

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Implications Many of the details regarding assisted living licensure will be developed through the rulemaking process. More will be known when the December 31, 2019, rulemaking report is published, comments received, and final rules adopted effective December 31, 2020‌just seven months before assisted living licensure goes into effect (August 1, 2021).

Bill language Chapter 60, Article 1, Section 41: https://www.revisor.mn.gov/laws/2019/0/Session+Law/Chapter/60/

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Retaliation prohibited in licensed assisted living facilities Regular session, HF90—Chapter 60, Article 1, Section 42 Assisted living licensure bill; consumer protections Effective: August 1, 2021

Short description During negotiations of the assisted living license law, consumer advocates and their representatives frequently brought up examples where they felt they, or their family members, had been retaliated against by a housing with services entity or their arranged home care provider. As a result, new anti-retaliation language was included in the assisted living licensure law. The law covers retaliation against employees, residents, and any person with a familial, personal, legal, or professional relationship with the resident. Note: There are three different retaliation prohibited sections in this book that have slight variations and apply to different settings/services.

Summary Retaliation against a resident includes the following actions taken or threatened to be taken as a result of the resident filing a complaint or grievance; filing a maltreatment report; seeking assistance due to the suspicion of a crime or systematic problems; advocating for improved care or services; taking or indicating intention to take civil action; participating in investigations; contracting for services from other providers; or placing or intending to place an electronic monitoring device: 1. Termination of a contract 2. Any form of discrimination 3. Restriction or prohibition of access: i. of the resident to the facility or visitors; or ii. of a family member or a person with a personal, legal, or professional relationship with the resident, to the resident, unless the restriction is the result of a court order 4. The imposition of involuntary seclusion or the withholding of food, care, or services 5. Restriction of any of the rights granted to residents under state or federal law 6. Restriction or reduction of access to or use of amenities, care, services, privileges, or living arrangements 7. Unauthorized removal, tampering with, or deprivation of technology, communication, or electronic monitoring devices A resident may request that the Minnesota Department of Health (MDH) determine if retaliation occurred.

The request must occur within 30 days of the perceived retaliatory action. The facility must then present evidence that the action taken was not retaliation. Retaliation against an employee includes the following actions taken or threatened to be taken: 1. Unwarranted discharge or transfer 2. Unwarranted demotion or refusal to promote 3. Unwarranted reduction in compensation, benefits, or privileges 4. The unwarranted imposition of discipline, punishment, or a sanction or penalty 5. Any form of unwarranted discrimination Implications Providers need to have solid written documentation confirming that any of the actions taken above were not taken for retaliatory reasons. Care Providers of Minnesota has sample templates of anti-retaliation policies that align with the new law available for members in the members-only section of the Association website: www.careproviders.org/retaliation.

Bill language Chapter 60, Article 1, Section 42: https://www.revisor.mn.gov/laws/2019/0/Session+Law/Chapter/60/ Sec. 42. [144I.50] RETALIATION PROHIBITED. Subdivision 1. Retaliation prohibited. A facility or agent of a facility may not retaliate against a resident or employee if the resident, employee, or any person acting on behalf of the resident: 33

right;

(1) files a good faith complaint or grievance, makes a good faith inquiry, or asserts any right; (2) indicates a good faith intention to file a complaint or grievance, make an inquiry, or assert any

(3) files, in good faith, or indicates an intention to file a maltreatment report, whether mandatory or voluntary, under section 626.557; (4) seeks assistance from or reports a reasonable suspicion of a crime or systemic problems or concerns to the director or manager of the facility, the Office of Ombudsman for Long-Term Care, a regulatory or other government agency, or a legal or advocacy organization; (5) advocates or seeks advocacy assistance for necessary or improved care or services or enforcement of rights under this section or other law; (6) takes or indicates an intention to take civil action; (7) participates or indicates an intention to participate in any investigation or administrative or judicial proceeding; (8) contracts or indicates an intention to contract to receive services from a service provider of the resident's choice other than the facility; or (9) places or indicates an intention to place a camera or electronic monitoring device in the resident's private space as provided under section 144.6502.

Subd. 2. Retaliation against a resident. For purposes of this section, to retaliate against a resident includes but is not limited to any of the following actions taken or threatened by a facility or an agent of the facility against a resident, or any person with a familial, personal, legal, or professional relationship with the resident: (1) termination of a contract; (2) any form of discrimination; (3) restriction or prohibition of access: (i) of the resident to the facility or visitors; or (ii) of a family member or a person with a personal, legal, or professional relationship with the resident, to the resident, unless the restriction is the result of a court order; (4) the imposition of involuntary seclusion or the withholding of food, care, or services; (5) restriction of any of the rights granted to residents under state or federal law; (6) restriction or reduction of access to or use of amenities, care, services, privileges, or living arrangements; or (7) unauthorized removal, tampering with, or deprivation of technology, communication, or electronic monitoring devices.

Subd. 3. Retaliation against an employee. For purposes of this section, to retaliate against an employee means any of the following actions taken or threatened by the facility or an agent of the facility against an employee: (1) unwarranted discharge or transfer; (2) unwarranted demotion or refusal to promote; (3) unwarranted reduction in compensation, benefits, or privileges; (4) the unwarranted imposition of discipline, punishment, or a sanction or penalty; or (5) any form of unwarranted discrimination.

Subd. 4. Determination by commissioner. A resident may request that the commissioner determine whether the facility retaliated against a resident. If a resident demonstrates to the commissioner that the facility took any action described in subdivision 2 within 30 days of an initial action described in subdivision 1, the facility must present evidence to the commissioner of the nonretaliatory reason relied on by the facility for the facility action. Based on the evidence provided by both parties, the commissioner shall determine if retaliation occurred.

Subd. 5. Other laws. Nothing in this section affects the rights available to a resident under section 626.557.

EFFECTIVE DATE. This section is effective August 1, 2021.

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SKI LLEDNURSI NG/ nurs i ngf ac i l i t i es

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Retaliation prohibited in nursing facilities

Regular session, HF90—Chapter 60, Article 3, Section 2 Assisted living licensure bill; consumer protections Effective: August 1, 2019 Short description During negotiations of the assisted living license law, consumer advocates and their representatives frequently brought up examples where they felt they, or their family members, had been retaliated against by a nursing facility. As a result, new anti-retaliation language was included in the consumer protections section of the elder care protection law. The law covers retaliation against employees, residents, and any person with a familial, personal, legal, or professional relationship with the resident.

Summary Retaliation against a resident includes the following actions taken or threatened to be taken as a result of the resident filing a complaint or grievance, filing a maltreatment report, seeking assistance due to the suspicion of a crime or systematic problems, advocating for improved care or services, taking or indicating intention to take civil action, participating in investigations, contracting for services from other providers, or placing or intending to place an electronic monitoring device: 1. Discharge or transfer 2. Any form of discrimination 3. Restriction or prohibition of access: i. of the resident to the facility or visitors, or ii. of a family member or a person with a personal, legal, or professional relationship with the resident, to the resident, unless the restriction is the result of a court order 4. The imposition of involuntary seclusion or the withholding of food, care, or services 5. Restriction of any of the rights granted to residents under state or federal law 6. Restriction or reduction of access to or use of amenities, care, services, privileges, or living arrangements 7. Unauthorized removal, tampering with, or deprivation of technology, communication, or electronic monitoring devices A resident may request that the Minnesota Department of Health determine if retaliation occurred. The request must occur within 30 days of the perceived retaliatory action. The facility must then present evidence that the action(s) taken was not retaliation. Retaliation against an employee includes the following actions taken or threatened to be taken: 1. Unwarranted discharge or transfer 2. Unwarranted demotion or refusal to promote 3. Unwarranted reduction in compensation, benefits, or privileges 4. The unwarranted imposition of discipline, punishment, or a sanction or penalty 5. Any form of unwarranted discrimination Implications Providers need to have solid written documentation confirming that any of the actions taken above were not taken for retaliatory reasons. Care Providers of Minnesota has sample templates of anti-retaliation policies that align with the new law available for members in the members-only section of the Association website: www.careproviders.org/retaliation.

Bill language Chapter 60, Article 3, Section 2: https://www.revisor.mn.gov/laws/2019/0/Session+Law/Chapter/60/ Sec. 2. [144.6512] RETALIATION IN NURSING HOMES PROHIBITED. Subdivision 1. Definitions. For the purposes of this section: (1) "nursing home" means a facility licensed as a nursing home under chapter 144A; and (2) "resident" means a person residing in a nursing home.

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Subd. 2. Retaliation prohibited. A nursing home or agent of a nursing home may not retaliate against a resident or employee if the resident, employee, or any person acting on behalf of the resident: (1) files a good faith complaint or grievance, makes a good faith inquiry, or asserts any right; (2) indicates a good faith intention to file a complaint or grievance, make an inquiry, or assert any right; (3) files, in good faith, or indicates an intention to file a maltreatment report, whether mandatory or voluntary, under section 626.557; (4) seeks assistance from or reports a reasonable suspicion of a crime or systemic problems or concerns to the administrator or manager of the nursing home, the Office of Ombudsman for LongTerm Care, a regulatory or other government agency, or a legal or advocacy organization; (5) advocates or seeks advocacy assistance for necessary or improved care or services or enforcement of rights under this section or other law; (6) takes or indicates an intention to take civil action; (7) participates or indicates an intention to participate in any investigation or administrative or judicial proceeding; (8) contracts or indicates an intention to contract to receive services from a service provider of the resident's choice other than the nursing home; or (9) places or indicates an intention to place a camera or electronic monitoring device in the resident's private space as provided under section 144.6502.

Subd. 3. Retaliation against a resident. For purposes of this section, to retaliate against a resident includes but is not limited to any of the following actions taken or threatened by a nursing home or an agent of the nursing home against a resident, or any person with a familial, personal, legal, or professional relationship with the resident: (1) a discharge or transfer; (2) any form of discrimination; (3) restriction or prohibition of access: (i) of the resident to the nursing home or visitors; or (ii) of a family member or a person with a personal, legal, or professional relationship with the resident, to the resident, unless the restriction is the result of a court order; (4) the imposition of involuntary seclusion or the withholding of food, care, or services; (5) restriction of any of the rights granted to residents under state or federal law; (6) restriction or reduction of access to or use of amenities, care, services, privileges, or living arrangements; or (7) unauthorized removal, tampering with, or deprivation of technology, communication, or electronic monitoring devices.

Subd. 4. Retaliation against an employee. For purposes of this section, to retaliate against an employee means any of the following actions taken by the nursing home or an agent of the nursing home against an employee: (1) unwarranted discharge or transfer; (2) unwarranted demotion or refusal to promote; (3) unwarranted reduction in compensation, benefits, or privileges; (4) the unwarranted imposition of discipline, punishment, or a sanction or penalty; or (5) any form of unwarranted discrimination.

Subd. 5. Determination by commissioner. A resident may request that the commissioner determine whether the facility retaliated against a resident. If a resident demonstrates to the commissioner that the facility took any action described in subdivision 3 within 30 days of an initial action described in subdivision 2, the facility must present evidence to the commissioner of the nonretaliatory reason relied on by the facility for the facility action. Based on the evidence provided by both parties, the commissioner shall determine if retaliation occurred.

EFFECTIVE DATE. This section is effective August 1, 2019.

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Swing bed cap increase

First special session, SF12—Chapter 9, Article 11, Section 33 Health & Human Services omnibus budget bill Effective: Various Short description The swing bed statute was changed to increase the number of swing bed days allowed at critical access hospitals (CAHs).

Summary The federal cap on swing beds is 9,125 days per year; Minnesota has long been anomaly by capping swing bed days at 2000, due in part to the large number of CAHs in Minnesota (Minnesota has the third highest number of CAHs in the country). Mayo, the only hospital system which utilizes swing beds by regularly referring from a non-CAH out to CAH in their system, has pushed for many years to raise the cap. They are hitting the limit in three CAHs—Cannon Falls, New Prague, and Wasceca--each year.

This year, with the new House Health & Human Services chair, Tina Liebling (DFL–Rochester), residing in Mayo’s area, the issue became one of the final negotiation points in the HHS omnibus bill. The House carried language that increased the cap to the federal limit of 9,125 days while the Senate had no language in their bill. After a series of intensifying negotiations, the Senate agreed to make substantial changes to the limit.

Under the final agreement, the swing bed cap increased to 3,000 days starting in 2020 and increases the cap by 200 days a year for the following seven years, finally capping swing bed days at 4,500 in 2028. The bill additionally exempts charity care days from counting toward swing bed days. Finally, the language does not count days against the cap where all nursing facilities within a 25-mile radius denied admission to patient, and failure to respond within 24 hours is considered a denial.

Implications Medicare days at nursing facilities in greater Minnesota will likely decrease as a result of this legislation.

Care Providers of Minnesota will also ask providers to collect data on how referrals change in the coming months and years so we can relay that information to the legislature. CPM will also work to encourage the legislature to conduct a study through the Office of the Legisaltive Auditor to examine whether swing bed referrals are being appropriately used, whether the required referral process is being followed and the overall cost to the health care system.

Bill language Chapter 9, Article 11, Section 33: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/ Sec. 33. Minnesota Statutes 2018, section 144.562, subdivision 2, is amended to read: Subd. 2. Eligibility for license condition. (a) A hospital is not eligible to receive a license condition for swing beds unless (1) it either has a licensed bed capacity of less than 50 beds defined in the federal Medicare regulations, Code of Federal Regulations, title 42, section 482.66, or it has a licensed bed capacity of 50 beds or more and has swing beds that were approved for Medicare reimbursement before May 1, 1985, or it has a licensed bed capacity of less than 65 beds and the available nursing homes within 50 miles have had, in the aggregate, an average occupancy rate of 96 percent or higher in the most recent two years as documented on the statistical reports to the Department of Health; and (2) it is located in a rural area as defined in the federal Medicare regulations, Code of Federal Regulations, title 42, section 482.66. (b) Except for those critical access hospitals established under section 144.1483, clause (9), and section 1820 of the federal Social Security Act, United States Code, title 42, section 1395i-4, that have an attached nursing home or that owned a nursing home located in the same municipality as of 39

May 1, 2005, eligible hospitals are allowed a total number of 2,000 days of swing bed use per year as provided in paragraph (c). Critical access hospitals that have an attached nursing home or that owned a nursing home located in the same municipality as of May 1, 2005, are allowed swing bed use as provided in federal law. (c) An eligible hospital is allowed a total of 3,000 days of swing bed use in calendar year 2020.

Beginning in calendar year 2021, and for each subsequent calendar year until calendar year 2027, the total number of days of swing bed use per year is increased by 200 swing bed use days. Beginning in calendar year 2028, an eligible hospital is allowed a total of 4,500 days of swing bed use per year. (d) Days of swing bed use for medical care that an eligible hospital has determined are charity care shall not count toward the applicable limit in paragraph (b) or (c). For purposes of this paragraph, "charity care" means care that an eligible hospital provided for free or at a discount to persons who cannot afford to pay and for which the eligible hospital did not expect payment. (e) Days of swing bed use for care of a person who has been denied admission to every Medicare-certified skilled nursing facility within 25 miles of the eligible hospital shall not count toward the applicable limit in paragraphs (b) and (c). Eligible hospitals must maintain documentation that they have contacted each skilled nursing facility within 25 miles to determine if any skilled nursing facility beds are available and if the skilled nursing facilities are willing to admit the patient. Skilled nursing facilities that are contacted must admit the patient or deny admission within 24 hours of being contacted by the eligible hospital. Failure to respond within 24 hours is deemed a denial of admission. (c) (f) Except for critical access hospitals that have an attached nursing home or that owned a nursing home located in the same municipality as of May 1, 2005, the commissioner of health may approve swing bed use beyond 2,000 days as long as there are no Medicare certified skilled nursing facility beds available within 25 miles of that hospital that are willing to admit the patient and the patient agrees to the referral being sent to the skilled nursing facility. Critical access hospitals exceeding 2,000 swing bed days must maintain documentation that they have contacted skilled nursing facilities within 25 miles to determine if any skilled nursing facility beds are available that are willing to admit the patient and the patient agrees to the referral being sent to the skilled nursing facility. This paragraph expires January 1, 2020. (d) (g) After reaching 2,000 days of swing bed use in a year, an eligible hospital to which this limit applies may admit six additional patients to swing beds each year without seeking approval from the commissioner or being in violation of this subdivision. These six swing bed admissions are exempt from the limit of 2,000 annual swing bed days for hospitals subject to this limit. This paragraph expires January 1, 2020. (e) (h) A health care system that is in full compliance with this subdivision may allocate its total limit of swing bed days among the hospitals within the system, provided that no hospital in the system without an attached nursing home may exceed 2,000 swing bed days per year. This paragraph expires January 1, 2020.

EFFECTIVE DATE. This section is effective January 1, 2020, except that new paragraphs (d) and (e) are effective the day following final enactment.

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Nursing facility property

First special session, SF12—Chapter 9, Article 4, Section 19 Health & Human Services omnibus bill Effective: Rate years beginning on or after January 1, 2020 Short description A fair rental value (FRV) property rate setting methodology was adopted and to be used ONLY for moratorium exception projects.

Summary The 2015 payment reform bill included language and funding to study and make recommendations regarding the implementation of a fair rental value (FRV) property rate system to complete the overhaul of the Medicaid payment rates for nursing facilities. The current property rate system is confusing, complex, and is not positioned to ensure much needed investments in infrastructure and physical plant improvements in the state’s outdated and aging nursing facilities.

The governor’s Health & Human Services budget proposed to phase-in an FRV property system over six years. However, the proposal contained several issues, including the following: • An insufficient rental rate of 5.5% • A hold-harmless that was not permanent • The use (and phasing-out) of planned closure rate adjustments (PCRA) and single bed incentive (SBI) increases as part of the non-permanent hold-harmless • A transfer of resources from roughly 220 nursing facilities to 150 During the legislative session, Care Providers of Minnesota staff worked with Minnesota Department of Human Services (DHS) staff to develop an FRV proposal with a rental rate that would properly incent investment in nursing facilities. Given the cost of implementing an FRV system with a proper rental rate for all nursing facilities, the new language is limited to approved moratorium exception projects approved after on or after January 1, 2020.

Several changes were made to 144A.071 and additional statute was added to 256R.26.

Key definitions and concepts for the FRV system include the following: • “Undepreciated replacement cost (URC)” is the undepreciated replacement cost determined by the appraisal for building and fixed equipment using the commercial valuation system and appraisal firm • “Limited undepreciated replacement cost (URC)” is the lessor of the facility's URC from the appraisal; or the product of (i) the number of the facility's licensed beds three months prior to the beginning of the rate year, (ii) the construction cost per square foot value, and (iii) 1,000 square feet • “Depreciated replacement cost (DRC)” means the depreciated replacement cost determined by an appraisal using the commercial valuation system selected by the commissioner o DRC excludes costs related to parking structures • “Limited undepreciated replacement cost ratio” is the facility's limited URC as determined divided by the facility's URC • “Limited depreciated replacement cost” is the product of the facility's DRC and the facility's limited URC ratio • “Land and land improvement value” is the facility's land is equal to the facility's limited URC as determined multiplied by 0.05 • “Capacity days” is the number of licensed beds within the nursing facility multiplied by 365 days • “Construction cost per square foot value” is the RSMeans nursing facility cost per square foot of floor area for a 40,000 square foot nursing facility with precast concrete and bearing 41

• •

walls multiplied by the commercial location factor for Minneapolis as indicated in the most recently available edition of the square foot costs with RSMeans data, as published by Gordian “Equipment allowance per bed value” is $10,000 adjusted annually for rate years beginning on or after January 1, 2021, by the percentage change indicated by the urban consumer price index for Minneapolis–St. Paul “Rental rate” must not be less than 7.5% and/or more than 12%; annual formula uses 20-year treasury bond rate plus 3%

FRV rates for moratorium exception projects would be calculated as such: • “Annual fair rental value” is the product of: o the sum of the facility's limited DRC as determined by the land and land improvement value; and o the rental rate.

• “Fair rental value property rate” is the quotient of: o the facility's annual fair rental value; and o the product of the facility's capacity days and 0.88.

• “Equipment allowance rate” is the quotient of: o the product of (i) the equipment allowance per bed value, (ii) the facility's number of licensed beds, and (iii) the rental rate; divided by o the product of the facility's capacity days and 0.88.

• Total property payment rate is the sum of: o fair rental value property rate; and o equipment allowance rate.

The following tables demonstrate the rate setting process for a 60-bed nursing facility with total replacement project: Total Replacement / New Building Number of beds Capacity days (beds times 365) Capacity days times 0.88 Square feet Average square feet per bed RSMeans cost per square foot (Twin Cities 2018) Rental rate

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Factor 60 21,900 19,272 57,000 950 $228.70 7.50%

Determine limited undepreciated replacement cost (URC) Number of beds times RSMeans times 1,000 square feet $13,722,000 Undepreciated replacement cost (URC) from appraisal $13,035,900 the lessor of….... $13,035,900 Limited Depreciated Replacement Cost (assumption) Land (5% of Limited Depreciated Replacement Cost)

Annual fair rental value Fair rental value property rate Equipment per bed

Equipment allowance rate

Fair rental value property rate Equipment allowance rate Total property payment rate

$13,035,900 $651,795 sum $13,687,695 X rental rate 7.50% $1,026,577 divide by capacity days times .88 19,272 $53.27

$10,000 X number of beds $600,000 X rental rate $45,000 Divide by capacity days times .88 19,272 $2.33

$53.27 $2.33 $55.60

The per-bed per-year limit on the increase in the URC by the annual percent change in the construction cost per square foot value.

A facility reimbursed may receive a property payment rate interim adjustment for threshold projects the cumulative cost of which during the three years between physical appraisals is between the following threshold project cost limits: 1. the lesser of $316,816 or $10,000 per bed in service; and 2. the greater of $1,620,943 or $20,000 per bed in service.

The threshold project cost limits are adjusted each January 1 by the annual percent change in the construction cost per square foot value based on the information that is publicly available on November 1 immediately preceding the rate year.

Implications • Nursing facilities seeking a moratorium exception project (e.g., new building, partial replacement, etc.) are likely to receive a property rate that meets the project’s principal, interest, and expense • Existing as well as prospective application for PCRAs and SBIs rate adjustments will be forfeited • Facilities will automatically receive payment for Medicaid medical necessity in a single room (as the single-room election will not be used) Bill language Chapter 9, Article 4, Section 19: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/

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Nursing facility moratorium exception project funding

First special session, SF12—Chapter 9, Article 4, Section 9, Subdivision 16 Health & Human Services omnibus bill Effective: Day following final enactment Short description The legislature appropriated $1,250,000 for a nursing facility moratorium exceptions project round.

Summary In order to receive a rate increase for a project costing more than $1,620,943, nursing facilities must receive approval through the moratorium exception process. The moratorium exception process is funded by a legislative appropriation to the Medicaid funding base. If no appropriation is made, nursing facilities that need to significantly update or even replace their buildings are unable to do so.

The governor’s property proposal, the Senate Health & Human Services bill, and Care Providers of Minnesota’s property language all contained moratorium funding. With the adoption of a fair rental value (FRV) property rate setting system for moratorium exception projects (see related article), funding was needed to allow for a moratorium round.

Implications The Minnesota Department of Health (MDH) will likely issue the request for proposals (RFP) in midsummer 2019. Proposals will likely be due in the fall, with a public hearing scheduled for early 2020.

With the new FRV property system for moratorium exception projects and $1,250,000 in funding (plus any carryover from previous rounds), it is expected that the next round will be competitive!

Bill language Chapter 9, Article 4, Section 9, Subdivision 16: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/ read:

Sec. 9. Minnesota Statutes 2018, section 144A.073, is amended by adding a subdivision to

Subd. 16. Moratorium exception funding. In fiscal year 2020, the commissioner may approve moratorium exception projects under this section for which the full annualized state share of medical assistance costs does not exceed $1,250,000 plus any carryover of previous appropriations for this purpose.

EFFECTIVE DATE. This section is effective the day following final enactment.

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Relocation of nursing facility beds & consolidations

First special session, SF12—Chapter 9, Article 4, Sections 6 & 8 Health & Human Services omnibus bill Effective: January 1, 2020 Short description Bed relocation and nursing facility consolidation policies were substantially altered.

Summary Bed relocation While the relocation of nursing facility beds may still occur with the approval of the Minnesota Department of Health (MDH), the requirements and incentives have changed. When relocating nursing facility beds, a nursing facility must still combine the relocation with a construction project. However, the following was changed: • Relocations that have construction projects exceeding the maximum threshold limit will need to apply for a moratorium exception • No part of the source facility rates is transferred to the receiving facility • There are grandfathering provisions for bed relocation proposals received by January 1, 2020 Consolidation Nursing facility consolidation allows two nursing facilities to consolidate by closing one and undertaking a construction project to improve the other. Currently, the estimated savings from the facility closed is used to fund the rate increase for the remaining facility.

Consolidation projects approved prior to March 1, 2020, will be allowed under current methodology (received by January 1, 2020). Consolidation projects not approved prior to March 1, 2020, will be required to apply for an exception to the moratorium and will not have a special rate calculated.

Implications While the relocation of nursing facility beds may still occur, the cost of the associated construction project will dictate the option for a nursing facility.

Nursing facilities planning to relocate beds or consolidate nursing facilities under current statute must have an approval from the Minnesota Department of Health by March 1, 2020.

Bill language Chapter 9, Article 4, Sections 6 & 8: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/ Sec. 6. Minnesota Statutes 2018, section 144A.071, subdivision 4d, is amended to read: Subd. 4d. Consolidation of nursing facilities. (a) The commissioner of health, in consultation with the commissioner of human services, may approve a request for consolidation of nursing facilities which includes the closure of one or more facilities and the upgrading of the physical plant of the remaining nursing facility or facilities, the costs of which exceed the threshold project limit under subdivision 2, clause (a). The commissioners shall consider the criteria in this section, section 144A.073, and section 256R.40, in approving or rejecting a consolidation proposal. In the event the commissioners approve the request, the commissioner of human services shall calculate an external fixed costs rate adjustment according to clauses (1) to (3): (1) the closure of beds shall not be eligible for a planned closure rate adjustment under section 256R.40, subdivision 5; (2) the construction project permitted in this clause shall not be eligible for a threshold project rate adjustment under section 256B.434, subdivision 4f, or a moratorium exception adjustment under section 144A.073; and 47

(3) the payment rate for external fixed costs for a remaining facility or facilities shall be increased by an amount equal to 65 percent of the projected net cost savings to the state calculated in paragraph (b), divided by the state's medical assistance percentage of medical assistance dollars, and then divided by estimated medical assistance resident days, as determined in paragraph (c), of the remaining nursing facility or facilities in the request in this paragraph. The rate adjustment is effective on the first day of the month of January or July, whichever date occurs first following both the completion of the construction upgrades in the consolidation plan and the complete closure of the facility or facilities designated for closure in the consolidation plan. If more than one facility is receiving upgrades in the consolidation plan, each facility's date of construction completion must be evaluated separately. (b) For purposes of calculating the net cost savings to the state, the commissioner shall consider clauses (1) to (7): (1) the annual savings from estimated medical assistance payments from the net number of beds closed taking into consideration only beds that are in active service on the date of the request and that have been in active service for at least three years; (2) the estimated annual cost of increased case load of individuals receiving services under the elderly waiver; (3) the estimated annual cost of elderly waiver recipients receiving support under housing support under chapter 256I; (4) the estimated annual cost of increased case load of individuals receiving services under the alternative care program; (5) the annual loss of license surcharge payments on closed beds; (6) the savings from not paying planned closure rate adjustments that the facilities would otherwise be eligible for under section 256R.40; and (7) the savings from not paying external fixed costs payment rate adjustments from submission of renovation costs that would otherwise be eligible as threshold projects under section 256B.434, subdivision 4f. (c) For purposes of the calculation in paragraph (a), clause (3), the estimated medical assistance resident days of the remaining facility or facilities shall be computed assuming 95 percent occupancy multiplied by the historical percentage of medical assistance resident days of the remaining facility or facilities, as reported on the facility's or facilities' most recent nursing facility statistical and cost report filed before the plan of closure is submitted, multiplied by 365. (d) For purposes of net cost of savings to the state in paragraph (b), the average occupancy percentages will be those reported on the facility's or facilities' most recent nursing facility statistical and cost report filed before the plan of closure is submitted, and the average payment rates shall be calculated based on the approved payment rates in effect at the time the consolidation request is submitted. (e) To qualify for the external fixed costs payment rate adjustment under this subdivision, the closing facilities shall: (1) submit an application for closure according to section 256R.40, subdivision 2; and (2) follow the resident relocation provisions of section 144A.161. (f) The county or counties in which a facility or facilities are closed under this subdivision shall not be eligible for designation as a hardship area under subdivision 3 for five years from the date of the approval of the proposed consolidation. The applicant shall notify the county of this limitation and the county shall acknowledge this in a letter of support. (g) Projects approved on or after March 1, 2020, are not subject to paragraph (a), clauses (2) and (3), and paragraph (c). The 65 percent projected net cost savings to the state calculated in paragraph (b) must be applied to the moratorium cost of the project and the remainder must be added to the moratorium funding under section 144A.073, subdivision 11. (h) Consolidation project applications not approved by the commissioner prior to March 1, 2020, are subject to the moratorium process under section 144A.073, subdivision 2. Upon request by the applicant, the commissioner may extend this deadline to August 1, 2020, so long as the facilities, bed numbers, and counties specified in the original application are not altered. Proposals from facilities

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seeking approval for a consolidation project prior to March 1, 2020, must be received by the commissioner no later than January 1, 2020. This paragraph expires August 1, 2020.

EFFECTIVE DATE. This section is effective January 1, 2020.

Sec. 8. Minnesota Statutes 2018, section 144A.073, subdivision 3c, is amended to read: Subd. 3c. Cost neutral Bed relocation threshold projects. (a) Notwithstanding subdivision 3, the commissioner may at any time accept proposals, or amendments to proposals previously approved under this section, for relocations that are cost neutral with respect to state costs as defined in section 144A.071, subdivision 5a to existing licensed nursing facilities when costs are less than the maximum threshold limit determined under section 256R.267, paragraph (a). The commissioner, in consultation with the commissioner of human services, shall evaluate proposals according to subdivision 4a, clauses (1), (4), (5), (6), and (8), and other criteria established in rule or law. The commissioner of human services shall determine the allowable payment rates of the facility receiving the beds in accordance with section 256R.50 The commissioner of human services shall determine the allowable payment rates of the facility receiving the beds in accordance with section 256R.21. No part of the source facility rates are transferred to the receiving facility. The commissioner shall approve or disapprove a project within 90 days. (b) For the purposes of paragraph (a), cost neutrality shall be measured over the first three 12month periods of operation after completion of the project. Bed relocation threshold projects seeking reimbursement for costs that exceed the moratorium limit or that result in a newly constructed or newly licensed building must apply to relocate beds as part of the competitive moratorium application and review process under subdivisions 2 and 3.

EFFECTIVE DATE. This section is effective for project proposals received by the commissioner of health after January 1, 2020, and approved by the commissioner on or after March 1, 2020.

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Border city rates

First special session, SF12—Chapter 9, Article 4, Section 25 Health & Human Services omnibus bill Effective: Rate years beginning on or after January 1, 2021 Short description The nonprofit nursing facilities located within the boundaries of the cities of Breckenridge or Moorhead may apply for a rate adjustment if they are able to demonstrate that nursing facilities in North Dakota have higher total payment rates.

Summary After three years of pursuing special legislation, the fourth year provided success for two nonprofit nursing facilities along the North Dakota boarder.

The special legislation may allow for an add-on to the external fixed rate if the comparison data demonstrates that the rates of two nonprofit Minnesota facilities are lower than the median North Dakota nonprofit facilities.

Implications None.

Bill language Chapter 9, Article 4, Section 25: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/.

Sec. 25. [256R.481] RATE ADJUSTMENTS FOR BORDER CITY FACILITIES. (a) The commissioner shall allow each nonprofit nursing facility located within the boundaries of the city of Breckenridge or Moorhead prior to January 1, 2015, to apply once annually for a rate add-on to the facility's external fixed costs payment rate. (b) A facility seeking an add-on to its external fixed costs payment rate under this section must apply annually to the commissioner to receive the add-on. A facility must submit the application within 60 calendar days of the effective date of any add-on under this section. The commissioner may waive the deadlines required by this paragraph under extraordinary circumstances. (c) The commissioner shall provide the add-on to each eligible facility that applies by the application deadline. (d) The add-on to the external fixed costs payment rate is the difference on January 1 of the median total payment rate for case mix classification PA1 of the nonprofit facilities located in an adjacent city in another state and in cities contiguous to the adjacent city minus the eligible nursing facility's total payment rate for case mix classification PA1 as determined under section 256R.22, subdivision 4.

2021.

EFFECTIVE DATE. This section is effective for rate years beginning on or after January 1,

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Property Assessed Clean Energy (PACE) for nursing facilities

First special session, SF12—Chapter 9, Article 4, Section 27 Health & Human Services omnibus bill Effective: Day following final enactment

Short description Nursing facilities engaging in a Property Assessed Clean Energy (PACE) project may receive a rate increase for the allowable costs of related special assessments.

Summary The Property Assessed Clean Energy (PACE) program was approved by the legislature in 2010 and authorizes the Saint Paul Port Authority to work with counties to create special assessments to pay for energy efficiency and renewable energy projects.

According to the Saint Paul Port Authority, typical PACE projects include: • Lighting, HVAC, cooling towers, chillers, boilers, VFD motors, motion detectors, energy management systems & hood vents • Usually less than a 10-year payback when combined A nursing facility would pay the county as they would for a street/road or any other special assessment as it is paid through taxes. However, while nursing facility real estate and special assessment taxes are a pass-through, federal rules mandate that special assessments must have an explicit public good (e.g., streets, sewers, education, etc.). The Minnesota Department of Human Services (DHS) met with interested parties in 2018 and explained that a nursing facility’s PACE costs would be disallowed.

The intention of the bill is to recognize some of the nursing facility costs. However, as noted below, it is not clear at this time how the program will be administered or what type of rate adjustments might be expected.

Implications While the final bill contains policy language and funding, there are remaining issues with the design and outline of the bill, including: • the funding available; and • the restrictions placed on what qualifies.

DHS intends to provide guidance on how the program will be implemented.

Bill language Chapter 9, Article 4, Section 27: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/ Sec. 27. DIRECTION TO COMMISSIONER; CLEAN ENERGY PILOT PROJECT. (a) The commissioner shall develop a pilot project to reduce overall energy consumption and evaluate the financial impacts associated with property assessed clean energy (PACE) approved projects in nursing facilities. (b) Notwithstanding Minnesota Statutes, section 256R.02, subdivision 48a, the commissioner may make payments to facilities for the allowable costs of special assessments for approved energyrelated program payments authorized under Minnesota Statutes, sections 216C.435 and 216C.436. (c) The commissioner shall approve proposals through a contract which shall specify the level of payment, provided that each facility demonstrates: (1) completion of a facility-specific energy assessment or energy audit and recommended energy conservation measures that, in aggregate, meet the cost-effectiveness requirements of Minnesota Statutes, section 216B.241;

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(2) a completed PACE application and recommended approval by a PACE program administrator authorized under Minnesota Statutes, sections 216C.435 and 216C.436; and (3) the facility's reported spending on utilities per resident day since calendar year 2016 is higher than average for similar facilities. (d) Payments to facilities under this section shall be in the form of time-limited rate adjustments which shall be included in the external fixed costs payment rate under Minnesota Statutes, section 256R.25. The commissioner shall select from facilities that meet the requirements of paragraph (c) using a competitive application process. (e) Allowable costs for special assessments for approved energy-related program payments cannot exceed the amount of debt service for net expenditures for the project and must meet the costeffective energy improvements requirements described in Minnesota Statutes, section 216C.435, subdivision 3a. Any credits or rebates related to the project must be offset. A project cost is not an allowable cost on the cost report as a special assessment if it has been or will be used to increase the facility's property rate. (f) The external fixed costs payment rate for the PACE allowable costs shall be reduced by an amount equal to the utility per diem included in the other operating payment rate under Minnesota Statutes, section 256R.24, that is associated with the energy project. (g) In fiscal years 2020 and 2021, the commissioner of human services may approve assessed clean energy pilot projects under this section, for which the cumulative state share of medical assistance costs does not exceed $125,000. (h) Notwithstanding any other law to the contrary, money available under Minnesota Statutes, section 144A.073, shall be used to pay the medical assistance cost for the external fixed rate increase in this section.

EFFECTIVE DATE. This section is effective the day following final enactment.

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ELECTRONI C moni t ori ng

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Electronic monitoring

Regular session, HF90—Chapter 60, Article 3, Section 1 Assisted living licensure bill; consumer protections Effective: January 1, 2020 Short description The establishment of a Minnesota electronic monitoring law has been in the works for over four years, including a legislative mandated workgroup in 2016. This new law clarifies a few important key issues: 1. Electronic monitoring is permissible—it cannot be prohibited 2. Written consent, on an approved standardized notice and consent form, must be given by those who are monitored or their designated representatives (including any roommates)—consent may include certain restrictions regarding the monitoring 3. Notification of consent and electronic monitoring to the facility must be provided prior to installation of electronic monitoring—with certain 14-day exceptions where the notice would be provided to the Office of Ombudsman for Long-Term Care Summary This new law applies to the following: • Licensed nursing facilities • Licensed boarding care homes • Until August 1, 2021, housing with services establishments that are using the term assisted living (144G) or have disclosed it has a special care unit • After August 1, 2021, licensed assisted living facilities Electronic monitoring means the placement and use of an electronic monitoring device by a resident in the resident’s room or private living unit in accordance with this new law.

Electronic monitoring device means a camera or other device that captures, records, or broadcasts audio, video, or both, that is placed in a resident’s room or private living unit and is used to monitor the resident or activities in the room or private living unit.

The Minnesota Department of Health (MDH) has until December 31, 2019, to develop and make available the approved consent and notification form.

It is important that providers read the actual language of the bill, as it is very detailed (see bill language below).

Implications Providers should do the following: • Review current policies and procedures to verify that electronic monitoring is not prohibited or used as a reason to deny admission, to discharge, or to retaliate in other forms • Make available to residents/representatives the approved notification and consent form once it is developed by MDH • Consider adding information regarding electronic monitoring requirements in admission packets, including if Wi-Fi is available and whether it is secure or not • Post the required signage at each entrance available to the public (see subd. 8 below) • Include electronic monitoring as a staff training topic (what to do if you find a camera, always assume you are on camera in your duties, how to comply with consent restrictions, etc.)

• Verify that the staff person responsible for assigning rooms for new admissions or room transfers understands the implications for shared rooms when electronic monitoring is requested or is in place • Verify you have procedures in place to provide timely, written responses to any written communications from a resident or resident representative expressing concerns which might 57

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promote a desire to place an electronic monitoring device (failure to provide timely written response is one situation which permits notification to not be shared directly with the facility for a period of up to 14 days) Communicate to all residents, that effective January 1, 2020, any electronic monitoring must comply with this new law

Bill language Chapter 60, Article 3, Section 1: https://www.revisor.mn.gov/laws/2019/0/Session+Law/Chapter/60/ Section 1. [144.6502] ELECTRONIC MONITORING IN CERTAIN FACILITIES. Subdivision 1. Definitions. (a) For the purposes of this section, the terms defined in this subdivision have the meanings given. (b) "Commissioner" means the commissioner of health. (c) "Department" means the Department of Health. (d) "Electronic monitoring" means the placement and use of an electronic monitoring device by a resident in the resident's room or private living unit in accordance with this section. (e) "Electronic monitoring device" means a camera or other device that captures, records, or broadcasts audio, video, or both, that is placed in a resident's room or private living unit and is used to monitor the resident or activities in the room or private living unit. (f) "Facility" means a facility that is: (1) licensed as a nursing home under chapter 144A; (2) licensed as a boarding care home under sections 144.50 to 144.56; (3) until August 1, 2021, a housing with services establishment registered under chapter 144D that is either subject to chapter 144G or has a disclosed special unit under section 325F.72; or (4) on or after August 1, 2021, an assisted living facility. (g) "Resident" means a person 18 years of age or older residing in a facility. (h) "Resident representative" means one of the following in the order of priority listed, to the extent the person may reasonably be identified and located: (1) a court-appointed guardian; (2) a health care agent as defined in section 145C.01, subdivision 2; or (3) a person who is not an agent of a facility or of a home care provider designated in writing by the resident and maintained in the resident's records on file with the facility.

Subd. 2. Electronic monitoring authorized. (a) A resident or a resident representative may conduct electronic monitoring of the resident's room or private living unit through the use of electronic monitoring devices placed in the resident's room or private living unit as provided in this section. (b) Nothing in this section precludes the use of electronic monitoring of health care allowed under other law. (c) Electronic monitoring authorized under this section is not a covered service under home and community-based waivers under sections 256B.0913, 256B.0915, 256B.092, and 256B.49. (d) This section does not apply to monitoring technology authorized as a home and communitybased service under section 256B.0913, 256B.0915, 256B.092, or 256B.49.

Subd. 3. Consent to electronic monitoring. (a) Except as otherwise provided in this subdivision, a resident must consent to electronic monitoring in the resident's room or private living unit in writing on a notification and consent form. If the resident has not affirmatively objected to electronic 58

monitoring and the resident's medical professional determines that the resident currently lacks the ability to understand and appreciate the nature and consequences of electronic monitoring, the resident representative may consent on behalf of the resident. For purposes of this subdivision, a resident affirmatively objects when the resident orally, visually, or through the use of auxiliary aids or services declines electronic monitoring. The resident's response must be documented on the notification and consent form. (b) Prior to a resident representative consenting on behalf of a resident, the resident must be asked if the resident wants electronic monitoring to be conducted. The resident representative must explain to the resident: (1) the type of electronic monitoring device to be used; (2) the standard conditions that may be placed on the electronic monitoring device's use, including those listed in subdivision 6; (3) with whom the recording may be shared under subdivision 10 or 11; and (4) the resident's ability to decline all recording. (c) A resident, or resident representative when consenting on behalf of the resident, may consent to electronic monitoring with any conditions of the resident's or resident representative's choosing, including the list of standard conditions provided in subdivision 6. A resident, or resident representative when consenting on behalf of the resident, may request that the electronic monitoring device be turned off or the visual or audio recording component of the electronic monitoring device be blocked at any time. (d) Prior to implementing electronic monitoring, a resident, or resident representative when acting on behalf of the resident, must obtain the written consent on the notification and consent form of any other resident residing in the shared room or shared private living unit. A roommate's or roommate's resident representative's written consent must comply with the requirements of paragraphs (a) to (c). Consent by a roommate or a roommate's resident representative under this paragraph authorizes the resident's use of any recording obtained under this section, as provided under subdivision 10 or 11. (e) Any resident conducting electronic monitoring must immediately remove or disable an electronic monitoring device prior to a new roommate moving into a shared room or shared private living unit, unless the resident obtains the roommate's or roommate's resident representative's written consent as provided under paragraph (d) prior to the roommate moving into the shared room or shared private living unit. Upon obtaining the new roommate's signed notification and consent form and submitting the form to the facility as required under subdivision 5, the resident may resume electronic monitoring. (f) The resident or roommate, or the resident representative or roommate's resident representative if the representative is consenting on behalf of the resident or roommate, may withdraw consent at any time and the withdrawal of consent must be documented on the original consent form as provided under subdivision 5, paragraph (d).

Subd. 4. Refusal of roommate to consent. If a resident of a facility who is residing in a shared room or shared living unit, or the resident representative of such a resident when acting on behalf of the resident, wants to conduct electronic monitoring and another resident living in or moving into the same shared room or shared living unit refuses to consent to the use of an electronic monitoring device, the facility shall make a reasonable attempt to accommodate the resident who wants to conduct electronic monitoring. A facility has met the requirement to make a reasonable attempt to accommodate a 59

resident or resident representative who wants to conduct electronic monitoring when, upon notification that a roommate has not consented to the use of an electronic monitoring device in the resident's room, the facility offers to move the resident to another shared room or shared living unit that is available at the time of the request. If a resident chooses to reside in a private room or private living unit in a facility in order to accommodate the use of an electronic monitoring device, the resident must pay either the private room rate in a nursing home setting, or the applicable rent in a housing with services establishment or assisted living facility. If a facility is unable to accommodate a resident due to lack of space, the facility must reevaluate the request every two weeks until the request is fulfilled. A facility is not required to provide a private room, a single-bed room, or a private living unit to a resident who is unable to pay.

Subd. 5. Notice to facility; exceptions. (a) Electronic monitoring may begin only after the resident or resident representative who intends to place an electronic monitoring device and any roommate or roommate's resident representative completes the notification and consent form and submits the form to the facility. (b) Notwithstanding paragraph (a), the resident or resident representative who intends to place an electronic monitoring device may do so without submitting a notification and consent form to the facility for up to 14 days: (1) if the resident or the resident representative reasonably fears retaliation against the resident by the facility, timely submits the completed notification and consent form to the Office of Ombudsman for Long-Term Care, and timely submits a Minnesota Adult Abuse Reporting Center report or police report, or both, upon evidence from the electronic monitoring device that suspected maltreatment has occurred; (2) if there has not been a timely written response from the facility to a written communication from the resident or resident representative expressing a concern prompting the desire for placement of an electronic monitoring device and if the resident or a resident representative timely submits a completed notification and consent form to the Office of Ombudsman for Long-Term Care; or (3) if the resident or resident representative has already submitted a Minnesota Adult Abuse Reporting Center report or police report regarding the resident's concerns prompting the desire for placement and if the resident or a resident representative timely submits a completed notification and consent form to the Office of Ombudsman for Long-Term Care. (c) Upon receipt of any completed notification and consent form, the facility must place the original form in the resident's file or file the original form with the resident's housing with services contract. The facility must provide a copy to the resident and the resident's roommate, if applicable. (d) If a resident is conducting electronic monitoring according to paragraph (b) and obtains a signed notification and consent form from a roommate, the resident or resident representative must submit the signed notification and consent form to the facility. In the event that a resident or roommate, or the resident representative or roommate's resident representative if the representative is consenting on behalf of the resident or roommate, chooses to alter the conditions under which consent to electronic monitoring is given or chooses to withdraw consent to electronic monitoring, the facility must make available the original notification and consent form so that it may be updated. Upon receipt of the updated form, the facility must place the updated form in the resident's file or file the original form with the resident's signed housing with services contract. The facility must provide a copy of the updated form to the resident and the resident's roommate, if applicable.

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(e) If a new roommate, or the new roommate's resident representative when consenting on behalf of the new roommate, does not submit to the facility a completed notification and consent form and the resident conducting the electronic monitoring does not remove or disable the electronic monitoring device, the facility must remove the electronic monitoring device. (f) If a roommate, or the roommate's resident representative when withdrawing consent on behalf of the roommate, submits an updated notification and consent form withdrawing consent and the resident conducting electronic monitoring does not remove or disable the electronic monitoring device, the facility must remove the electronic monitoring device.

Subd. 6. Form requirements. (a) The notification and consent form completed by the resident must include, at a minimum, the following information: (1) the resident's signed consent to electronic monitoring or the signature of the resident representative, if applicable. If a person other than the resident signs the consent form, the form must document the following: (i) the date the resident was asked if the resident wants electronic monitoring to be conducted; (ii) who was present when the resident was asked; (iii) an acknowledgment that the resident did not affirmatively object; and (iv) the source of authority allowing the resident representative to sign the notification and consent form on the resident's behalf; (2) the resident's roommate's signed consent or the signature of the roommate's resident representative, if applicable. If a roommate's resident representative signs the consent form, the form must document the following: (i) the date the roommate was asked if the roommate wants electronic monitoring to be conducted; (ii) who was present when the roommate was asked; (iii) an acknowledgment that the roommate did not affirmatively object; and (iv) the source of authority allowing the resident representative to sign the notification and consent form on the roommate's behalf; (3) the type of electronic monitoring device to be used; (4) a list of standard conditions or restrictions that the resident or a roommate may elect to place on the use of the electronic monitoring device, including but not limited to: (i) prohibiting audio recording; (ii) prohibiting video recording; (iii) prohibiting broadcasting of audio or video; (iv) turning off the electronic monitoring device or blocking the visual recording component of the electronic monitoring device for the duration of an exam or procedure by a health care professional; (v) turning off the electronic monitoring device or blocking the visual recording component of the electronic monitoring device while dressing or bathing is performed; and (vi) turning off the electronic monitoring device for the duration of a visit with a spiritual adviser, ombudsman, attorney, financial planner, intimate partner, or other visitor; (5) any other condition or restriction elected by the resident or roommate on the use of an electronic monitoring device; (6) a statement of the circumstances under which a recording may be disseminated under subdivision 10; (7) a signature box for documenting that the resident or roommate has withdrawn consent; and 61

(8) an acknowledgment that the resident consents to the Office of Ombudsman for Long-Term Care and its representatives disclosing information about the form. Disclosure under this clause shall be limited to: (i) the fact that the form was received from the resident or resident representative; (ii) if signed by a resident representative, the name of the resident representative and the source of authority allowing the resident representative to sign the notification and consent form on the resident's behalf; and (iii) the type of electronic monitoring device placed. (b) Facilities must make the notification and consent form available to the residents and inform residents of their option to conduct electronic monitoring of their rooms or private living unit. (c) Notification and consent forms received by the Office of Ombudsman for Long-Term Care are classified under section 256.9744. (d) A facility that contacts the Office of Ombudsman for Long-Term Care regarding an electronic monitoring device presumably placed in accordance with subdivision 5, paragraph (a) or (b), must provide the office with the type, make, and model number of the electronic monitoring device discovered by the facility.

Subd. 7. Costs and installation. (a) A resident or resident representative choosing to conduct electronic monitoring must do so at the resident's own expense, including paying purchase, installation, maintenance, and removal costs. (b) If a resident chooses to place an electronic monitoring device that uses Internet technology for visual or audio monitoring, the resident may be responsible for contracting with an Internet service provider. (c) The facility shall make a reasonable attempt to accommodate the resident's installation needs, including allowing access to the facility's public-use Internet or Wi-Fi systems when available for other public uses. A facility has the burden of proving that a requested accommodation is not reasonable. (d) All electronic monitoring device installations and supporting services must be UL-listed.

Subd. 8. Notice to visitors. (a) A facility must post a sign at each facility entrance accessible to visitors that states: "Electronic monitoring devices, including security cameras and audio devices, may be present to record persons and activities." (b) The facility is responsible for installing and maintaining the signage required in this subdivision.

Subd. 9. Obstruction of electronic monitoring devices. (a) A person must not knowingly hamper, obstruct, tamper with, or destroy an electronic monitoring device placed in a resident's room or private living unit without the permission of the resident or resident representative. Checking the electronic monitoring device by facility staff for the make and model number does not constitute tampering under this subdivision. (b) It is not a violation of paragraph (a) if a person turns off the electronic monitoring device or blocks the visual recording component of the electronic monitoring device at the direction of the resident or resident representative, or if consent has been withdrawn.

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Subd. 10. Dissemination of recordings. (a) No person may access any video or audio recording created through authorized electronic monitoring without the written consent of the resident or resident representative. (b) Except as required under other law, a recording or copy of a recording made as provided in this section may only be disseminated for the purpose of addressing health, safety, or welfare concerns of one or more residents. (c) A person disseminating a recording or copy of a recording made as provided in this section in violation of paragraph (b) may be civilly or criminally liable.

Subd. 11. Admissibility of evidence. Subject to applicable rules of evidence and procedure, any video or audio recording created through electronic monitoring under this section may be admitted into evidence in a civil, criminal, or administrative proceeding.

Subd. 12. Liability. (a) For the purposes of state law, the mere presence of an electronic monitoring device in a resident's room or private living unit is not a violation of the resident's right to privacy under section 144.651 or 144A.44. (b) For the purposes of state law, a facility or home care provider is not civilly or criminally liable for the mere disclosure by a resident or a resident representative of a recording.

Subd. 13. Immunity from liability. The Office of Ombudsman for Long-Term Care and representatives of the office are immune from liability for conduct described in section 256.9742, subdivision 2.

Subd. 14. Resident protections. (a) A facility must not: (1) refuse to admit a potential resident or remove a resident because the facility disagrees with the decision of the potential resident, the resident, or a resident representative acting on behalf of the resident regarding electronic monitoring; (2) retaliate or discriminate against any resident for consenting or refusing to consent to electronic monitoring, as provided in section 144.6512, 144G.07, or 144I.50; or (3) prevent the placement or use of an electronic monitoring device by a resident who has provided the facility or the Office of Ombudsman for Long-Term Care with notice and consent as required under this section. (b) Any contractual provision prohibiting, limiting, or otherwise modifying the rights and obligations in this section is contrary to public policy and is void and unenforceable.

Subd. 15. Employee discipline. (a) An employee of the facility or an employee of a contractor providing services at the facility, including an arranged home care provider as defined in section 144D.01, subdivision 2a, who is the subject of proposed disciplinary action based upon evidence obtained by electronic monitoring must be given access to that evidence for purposes of defending against the proposed action. (b) An employee who obtains a recording or a copy of the recording must treat the recording or copy confidentially and must not further disseminate it to any other person except as required under law. Any copy of the recording must be returned to the facility or resident who provided the copy when it is no longer needed for purposes of defending against a proposed action.

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Subd. 16. Penalties. (a) The commissioner may issue a correction order as provided under section 144A.10, 144A.45, 144A.474, or 144I.30, upon a finding that the facility has failed to comply with: (1) subdivision 5, paragraphs (c) to (f); (2) subdivision 6, paragraph (b); (3) subdivision 7, paragraph (c); or (4) subdivision 8, 9, 10, or 14. (b) For each violation of this section, the commissioner may impose a fine of up to $500 upon a finding of noncompliance with a correction order issued under this subdivision. (c) The commissioner may exercise the commissioner's authority under section 144D.05 to compel a housing with services establishment to meet the requirements of this section.

EFFECTIVE DATE. This section is effective January 1, 2020, and applies to all agreements in effect, entered into, or renewed on or after that date.

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HOMECARE/HWS

& ot her c ommuni t ys ervi c es

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Retaliation prohibited in registered housing with services settings

Regular session, HF90—Chapter 60, Article 3, Section 3 Assisted living licensure bill; consumer protections Effective: August 1, 2019 (expires July 31, 2021, when it is replaced with identical language in assisted living licensure) Short description During negotiations of the assisted living license law, consumer advocates and their representatives frequently brought up examples where they felt they, or their family members, had been retaliated against by a housing with services entity. As a result, new anti-retaliation language was included in the consumer protections section of the elder care protection law. The law covers retaliation against employees, residents, and any person with a familial, personal, legal, or professional relationship with the resident.

Summary Retaliation against a resident includes the following actions taken or threatened to be taken as a result of the resident filing a complaint or grievance, filing a maltreatment report, seeking assistance due to the suspicion of a crime or systematic problems, advocating for improved care or services, taking or indicating intention to take civil action, participating in investigations, contracting for services from other providers, or placing or intending to place an electronic monitoring device: 1. Termination of a contract 2. Any form of discrimination 3. Restriction or prohibition of access: i. of the resident to the facility or visitors ii. of a family member or a person with a personal, legal, or professional relationship with the resident, to the resident, unless the restriction is the result of a court order 4. The imposition of involuntary seclusion or the withholding of food, care, or services 5. Restriction of any of the rights granted to residents under state or federal law 6. Restriction or reduction of access to or use of amenities, care, services, privileges, or living arrangements 7. An arbitrary increase in charges or fees 8. Unauthorized removal, tampering with, or deprivation of technology, communication, or electronic monitoring devices 9. Any oral or written communication of false information about a person acting on behalf of a resident A resident may request that the Minnesota Department of Health (MDH)determine if retaliation occurred. The request must occur within 30 days of the perceived retaliatory action. The facility must then present evidence that the action(s) taken was not retaliation.

Retaliation against an employee includes the following actions taken or threatened to be taken: 1. Unwarranted discharge or transfer 2. Unwarranted demotion or refusal to promote 3. Unwarranted reduction in compensation, benefits, or privileges 4. The unwarranted imposition of discipline, punishment, or a sanction or penalty 5. Any form of unwarranted discrimination Implications Providers need to have solid written documentation confirming that any of the actions taken above were not taken for retaliatory reasons. Care Providers of Minnesota has sample templates of anti-retaliation policies that align with the new law available for members in the members-only section of the Association website: www.careproviders.org/retaliation.

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Bill language Chapter 60, Article 3, Section 3: https://www.revisor.mn.gov/laws/2019/0/Session+Law/Chapter/60/ Sec. 3. [144G.07] RETALIATION PROHIBITED. Subdivision 1. Definitions. For the purposes of this section: (1) "facility" means a housing with services establishment registered under section 144D.02 and operating under title protection under this chapter; and (2) "resident" means a resident of a facility.

Subd. 2. Retaliation prohibited. A facility or agent of a facility may not retaliate against a resident or employee if the resident, employee, or any person on behalf of the resident: (1) files a good faith complaint or grievance, makes a good faith inquiry, or asserts any right; (2) indicates a good faith intention to file a complaint or grievance, make an inquiry, or assert any right; (3) files, in good faith, or indicates an intention to file a maltreatment report, whether mandatory or voluntary, under section 626.557; (4) seeks assistance from or reports a reasonable suspicion of a crime or systemic problems or concerns to the administrator or manager of the facility, the Office of Ombudsman for Long-Term Care, a regulatory or other government agency, or a legal or advocacy organization; (5) advocates or seeks advocacy assistance for necessary or improved care or services or enforcement of rights under this section or other law; (6) takes or indicates an intention to take civil action; (7) participates or indicates an intention to participate in any investigation or administrative or judicial proceeding; (8) contracts or indicates an intention to contract to receive services from a service provider of the resident's choice other than the facility; or (9) places or indicates an intention to place a camera or electronic monitoring device in the resident's private space as provided under section 144.6502.

Subd. 3. Retaliation against a resident. For purposes of this section, to retaliate against a resident includes but is not limited to any of the following actions taken or threatened by a facility or an agent of the facility against a resident, or any person with a familial, personal, legal, or professional relationship with the resident: (1) termination of a contract; (2) any form of discrimination; (3) restriction or prohibition of access: (i) of the resident to the facility or visitors; or (ii) of a family member or a person with a personal, legal, or professional relationship with the resident, to the resident, unless the restriction is the result of a court order; (4) the imposition of involuntary seclusion or the withholding of food, care, or services; (5) restriction of any of the rights granted to residents under state or federal law; (6) restriction or reduction of access to or use of amenities, care, services, privileges, or living arrangements; (7) an arbitrary increase in charges or fees; (8) unauthorized removal, tampering with, or deprivation of technology, communication, or electronic monitoring devices; or (9) any oral or written communication of false information about a person advocating on behalf of the resident.

Subd. 4. Retaliation against an employee. For purposes of this section, to retaliate against an employee means any of the following actions taken by the facility or an agent of the facility against an employee: (1) unwarranted discharge or transfer; 68

(2) unwarranted demotion or refusal to promote; (3) unwarranted reduction in compensation, benefits, or privileges; (4) the unwarranted imposition of discipline, punishment, or a sanction or penalty; or (5) any form of unwarranted discrimination.

Subd. 5. Determination by commissioner. A resident may request that the commissioner determine whether the facility retaliated against a resident. If a resident demonstrates to the commissioner that the facility took any action described in subdivision 3 within 30 days of an initial action described in subdivision 2, the facility must present evidence to the commissioner of the nonretaliatory reason relied on by the facility for the facility action. Based on the evidence provided by both parties, the commissioner shall determine if retaliation occurred.

EFFECTIVE DATE. This section is effective August 1, 2019, and expires July 31, 2021.

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Customized living services provider transfer of capacity Regular session, SF322—Chapter 36 Effective: August 1, 2019

Short description This statute allows a housing with services establishment located in Minneapolis that provides customized living and 24-hour customized living services for clients enrolled in the MA Brain Injury (BI) or Community Access for Disability Inclusion (CADI) waiver and had a capacity to serve 66 clients as of July 1, 2017, to transfer service capacity of up to 66 clients to no more than three new housing with services establishments located in Hennepin County.

Summary A Hennepin County provider which houses 66 clients in three buildings, mostly in shared bedrooms, sought to tranfer capacity to additional settings because the shared bedrooms lacked privacy for the clients. One room, depending on its size, may have up to three people. The provider sought to improve the quality of life for these clients by offering all the option for private living space by transferring capacity to other settings with private bedrooms. The Minnesota Department of Human Services (DHS) maintained it did not have the authority to transfer capacity to other settings. This legislation allowed the transfer of up to 66 clients to no more than three new housing with services establishments in Hennepin County. The statute also requires the commissioner of human services to determine whether the new housing with services establishments meet the BI and CADI waiver customized living and 24-hour customized living size limitation exception for clients receiving those services at the new housing with services establishments.

Bill language Chapter 36: https://www.revisor.mn.gov/laws/2019/0/Session+Law/Chapter/36/ Section 1. DIRECTION TO COMMISSIONER; BI AND CADI WAIVER CUSTOMIZED LIVING SERVICES PROVIDER LOCATED IN HENNEPIN COUNTY. (a) The commissioner of human services shall allow a housing with services establishment located in Minneapolis that provides customized living and 24-hour customized living services for clients enrolled in the brain injury (BI) or community access for disability inclusion (CADI) waiver and had a capacity to serve 66 clients as of July 1, 2017, to transfer service capacity of up to 66 clients to no more than three new housing with services establishments located in Hennepin County. (b) Notwithstanding Minnesota Statutes, section 256B.492, the commissioner shall determine that the new housing with services establishments described under paragraph (a) meet the BI and CADI waiver customized living and 24-hour customized living size limitation exception for clients receiving those services at the new housing with services establishments described under paragraph (a).

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Elderly waiver statute recodification Regular Session, SF573—Chapter 54 Effective: August 1, 2019

Short description The bill recodifies the Elderly Waiver program language currently found in Minnesota statutes, section 256B.0915 into a new chapter.

Summary When the new elderly waiver rate setting system and policy was adopted in 2017, the legislature also directed the revisor’s office to recodify Minnesota statutes, section 256B.0915. The recodification exercise was pursued to make sense of the statutes governing the Elderly Waiver program.

During the past several decades, various amendments and changes had made the program’s statutes difficult to understand. According to Senate Research, the amount of obsolete language and the redrafting required to eliminate obsolete, unnecessary, and redundant language, a recodification by renumbering was not practical. The bill uses a lengthy repealer as a result.

The bill was considered technical and not intended to change existing policy.

Implications The new language will allow for better understanding and more ease of reading.

Bill language Chapter 54: https://www.revisor.mn.gov/laws/2019/0/Session+Law/Chapter/54/

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Updates to current home care regulations

First special session, SF12—Chapter 9, Article 11, Sections 38-49, 51-67 & 112 Health & Human Services omnibus bill Effective: August 1, 2019, with one provision effective May 31, 2019 Short description During the 2018 legislative session, language was introduced to improve certain requirements in the current basic and comprehensive home care statutes. In the end, the language was vetoed by the governor. This same language was re-introduced during the 2019 legislative session, and this time it passed. The language was developed by Care Providers of Minnesota, along with the Minnesota Department of Health (MDH) and other provider representatives.

Summary The new language affects 28 areas of home care regulations: 1. The definition of “medication administration” has been revised: "Medication administration" means performing a set of tasks to ensure a client takes medications, and includes that include the following: a. checking the client's medication record; b. preparing the medication as necessary; c. administering the medication to the client; d. documenting the administration or reason for not administering the medication; and e. reporting to a registered nurse or appropriate licensed health professional any concerns about the medication, the client, or the client's refusal to take the medication.

2. There is a new definition of “medication reconciliation”: "Medication reconciliation" means the process of identifying the most accurate list of all medications the client is taking, including the name, dosage, frequency, and route by comparing the client record to an external list of medications obtained from the client, hospital, prescriber, or other provider.

3. The definition of “standby assistance“ has been modified: "Standby assistance" means the presence of another person within arm's reach to minimize the risk of injury while performing daily activities through physical intervention or cuing to assist a client with an assistive task by providing cues, oversight, and minimal physical assistance.

4. Clarification that an approved change of ownership (CHOW) results in the receipt of a full home care license, not a temporary home care license (unless the selling entity only had a temporary license at the time of the CHOW).

5. Clarification that when a CHOW occurs, the new owner can treat the employees acquired as if nothing had changed, in respect to orientation, training, tuberculosis testing, background studies, competency testing, and training on applicable home care policies, except for policies that differ from the prior license owner. Changes in policy must be trained and tested within 90 days after the date of the change in ownership. In other words, a CHOW includes the employee records—such records are considered current for the new owner.

6. A new fine of $1,000 will be assessed if a temporary home care licensee fails to notify MDH within five days after they begin providing home care services to their first client. This is effective May 31, 2019.

7. Permits temporary licenses to be extended beyond one year under certain circumstances.

8. Permits MDH to extend temporary licenses with conditions for up to 90 days when substantial compliance is not determined on the temporary license survey.

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9. Allows temporary licenses to submit reconsideration requests regarding licensing orders identified on the temporary license survey.

10. Clarifies that when a temporary license has their “full” license denied, they are permitted to continue operating as a home care provider when (1) a reconsideration request is in process, (2) an extension of the temporary licenses is being negotiated, (3) the placement of conditions on the temporary license are being negotiated, or (4) the transfer of home care clients from the temporary license to a new home care provider is in progress.

11. Requires that MDH conduct a full home care survey within six months after the issuance of a new license resulting from a CHOW. 12. Clarifies that when a home care license has conditions applied to the license, or the license is being suspended or revoked, the licensee may continue operating during the period of time home care clients are being transferred to other providers.

13. Requires that TB screening results are included in employee records.

14. Throughout the home care regulations, replaces terms such as “initiation of” with “date that services are first provided to the client.” Examples include: notice of the bill of rights, statement of home care services, 30-day time limit to conduct supervision of new staff (after first performing delegated tasks for clients), 5-day and 14-day deadlines for assessments, 14-day deadline for finalization of a written service plan, etc.

15. Clarifies that if home care services are provided to a client prior to an assessment conducted by an RN, an RN must complete a temporary plan and orientate staff assigned to deliver the services identified in the temporary plan.

16. Makes the following change to elements required to be in the written service plan: a. Replaces: “the frequency of sessions of supervision of staff and type of personnel who will supervise staff” with “the schedule and methods of monitoring staff providing home care services” (the concept is the same, but the language is clearer) 17. Makes the following change to elements required to be in the written service plan: a. Eliminates the requirement to include “identification of and information as to who has authority to sign for the client in an emergency” (note: the service plan must still include “names and contact information of persons the client wishes to have notified in an emergency or if there is a significant adverse change in the client's condition”) 18. Clarifies that the requirement for the comprehensive home care provider to identify how it will ensure security and accountability for the overall management, control, and disposition of medications in compliance with state and federal regulations applies only to those medications that are being managed, stored, and secured by the comprehensive home care provider.

19. Adds a requirement that the comprehensive home care provider provide instructions to the client or client's representative on interventions to manage the client's medications and prevent diversion of medications.

20. Adds a requirement that for each client receiving medication management services from a comprehensive home care provider, a medication reconciliation must be completed when a licensed nurse, licensed health professional, or authorized prescriber is providing medication management.

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21. Expands the timeframe to provide medications for clients who will be away from home from 120 hours to seven calendar days.

22. Adds a new requirement for clients who will be away from home. The policy and procedure must now include how the unlicensed staff must document in the client's record any unused medications that are returned to the provider, including the name of each medication and the doses of each returned medication.

23. Clarifies that treatment and therapy orders must be renewed every 12 months.

24. Clarifies that orientation of new staff to the provider's policies and procedures related to the provision of home care services is limited to those policies and procedures that are applicable to the new staff person. No need to train in areas outside the scope of the new employees’ position!

25. Creates a new section (144A.4798) titled “Disease Prevention and Infection Control.� This new section bundles the following topics that were previously spread out within the home care statues: a. Tuberculosis infection control program b. Reporting of communicable diseases c. Establishing and maintaining an effective infection control program 26. Clarifies that public members of the Home Care and Assisted Living Program Advisory Council may include persons who have received home care services within five years of the application date.

27. Deletes the transition period for establishing integrated licenses (the period ended June 30, 2015).

28. Deletes the home care license transition period that was in place between October 1, 2013, and June 30, 2015.

Implications Licensed basic and comprehensive home care providers will need to implement these changes via updated policies, procedures, and actions. Applicable changes will also be carried forward into the new assisted living licensure requirements effective August 1, 2021.

Bill language Chapter 9, Article 11, Sections 38-49, 51-67 & 112: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/

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Billing & documentation requirements for HCBS providers

First special session, SF12—Chapter 9, Article 2, Sections 122–126 Health & Human Services omnibus bill Effective: August 1, 2019

Short description Effective August 1, 2019, there will be new billing and documentation requirements for services provided under the Alternative Care (AC), Elderly Waiver (EW), Developmental Disability (DD), and Community Access for Disability Inclusion (CADI) waivers and/or services licensed under 245A or 245D. DHS may recover payment for a service that does not satisfy these requirements.

Summary After several years of discussion, the legislature adopted the Minnesota Department of Human Services (DHS) Office of the Inspector Generals (OIG) proposed billing and documentation requirement. The language creates documentation requirements that must be met if a home- and community-based services (HCBS) service is to be eligible for Medicaid reimbursement.

All HCBS providers must maintain documentation that, upon employment and annually thereafter, staff providing a service have attested to reviewing and understanding the following statement: It is a federal crime to provide materially false information on service billings for medical assistance or services provided under a federally-approved waiver plan as authorized under Minnesota Statutes, sections 256B.0913, 256B.0915, 256B.092, and 256B.49.

Documentation requirements for hourly and minute-based HCBS providers, daily-rate-based HCBS services, waiver transportation, equipment and supply service providers, and adult day service providers. The bill language below delineates these requirements.

Implications HCBS providers of Medicaid services must make sure their documentation practices comply with the new statutes by August 1, 2019. Care Providers of Minnesota has asked DHS to produce a bulletin or guidance for providers to understand how to best comply.

Bill language Chapter 9, Article 2, Sections 122–126: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/ read:

Sec. 122. Minnesota Statutes 2018, section 256B.4912, is amended by adding a subdivision to

Subd. 11. Home and community-based service billing requirements. (a) A home and community-based service is eligible for reimbursement if: (1) the service is provided according to a federally approved waiver plan as authorized under sections 256B.0913, 256B.0915, 256B.092, and 256B.49; (2) if applicable, the service is provided on days and times during the days and hours of operation specified on any license required under chapter 245A or 245D; and (3) the provider complies with subdivisions 12 to 15, if applicable. (b) The provider must maintain documentation that, upon employment and annually thereafter, staff providing a service have attested to reviewing and understanding the following statement: "It is a federal crime to provide materially false information on service billings for medical assistance or services provided under a federally approved waiver plan as authorized under Minnesota Statutes, sections 256B.0913, 256B.0915, 256B.092, and 256B.49."

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(c) The department may recover payment according to section 256B.064 and Minnesota Rules, parts 9505.2160 to 9505.2245, for a service that does not satisfy this subdivision. read:

Sec. 123. Minnesota Statutes 2018, section 256B.4912, is amended by adding a subdivision to

Subd. 12. Home and community-based service documentation requirements. (a) Documentation may be collected and maintained electronically or in paper form by providers and must be produced upon request by the commissioner. (b) Documentation of a delivered service must be in English and must be legible according to the standard of a reasonable person. (c) If the service is reimbursed at an hourly or specified minute-based rate, each documentation of the provision of a service, unless otherwise specified, must include: (1) the date the documentation occurred; (2) the day, month, and year when the service was provided; (3) the start and stop times with a.m. and p.m. designations, except for case management services as defined under sections 256B.0913, subdivision 7; 256B.0915, subdivision 1a; 256B.092, subdivision 1a; and 256B.49, subdivision 13; (4) the service name or description of the service provided; and (5) the name, signature, and title, if any, of the provider of service. If the service is provided by multiple staff members, the provider may designate a staff member responsible for verifying services and completing the documentation required by this paragraph. (d) If the service is reimbursed at a daily rate or does not meet the requirements in paragraph (c), each documentation of the provision of a service, unless otherwise specified, must include: (1) the date the documentation occurred; (2) the day, month, and year when the service was provided; (3) the service name or description of the service provided; and (4) the name, signature, and title, if any, of the person providing the service. If the service is provided by multiple staff, the provider may designate a staff member responsible for verifying services and completing the documentation required by this paragraph. read:

Sec. 124. Minnesota Statutes 2018, section 256B.4912, is amended by adding a subdivision to

Subd. 13. Waiver transportation documentation and billing requirements. (a) A waiver transportation service must be a waiver transportation service that: (1) is not covered by medical transportation under the Medicaid state plan; and (2) is not included as a component of another waiver service. (b) In addition to the documentation requirements in subdivision 12, a waiver transportation service provider must maintain: (1) odometer and other records pursuant to section 256B.0625, subdivision 17b, paragraph (b), clause (3), sufficient to distinguish an individual trip with a specific vehicle and driver for a waiver transportation service that is billed directly by the mile. A common carrier as defined by Minnesota Rules, part 9505.0315, subpart 1, item B, or a publicly operated transit system provider are exempt from this clause; and (2) documentation demonstrating that a vehicle and a driver meet the standards determined by the Department of Human Services on vehicle and driver qualifications in section 256B.0625, subdivision 17, paragraph (c). read:

Sec. 125. Minnesota Statutes 2018, section 256B.4912, is amended by adding a subdivision to

Subd. 14. Equipment and supply documentation requirements. (a) In addition to the requirements in subdivision 12, an equipment and supply services provider must for each documentation of the provision of a service include: (1) the recipient's assessed need for the equipment or supply; (2) the reason the equipment or supply is not covered by the Medicaid state plan; 80

(3) the type and brand name of the equipment or supply delivered to or purchased by the recipient, including whether the equipment or supply was rented or purchased; (4) the quantity of the equipment or supply delivered or purchased; and (5) the cost of the equipment or supply if the amount paid for the service depends on the cost. (b) A provider must maintain a copy of the shipping invoice or a delivery service tracking log or other documentation showing the date of delivery that proves the equipment or supply was delivered to the recipient or a receipt if the equipment or supply was purchased by the recipient. read:

Sec. 126. Minnesota Statutes 2018, section 256B.4912, is amended by adding a subdivision to

Subd. 15. Adult day service documentation and billing requirements. (a) In addition to the requirements in subdivision 12, a provider of adult day services as defined in section 245A.02, subdivision 2a, and licensed under Minnesota Rules, parts 9555.9600 to 9555.9730, must maintain documentation of: (1) a needs assessment and current plan of care according to section 245A.143, subdivisions 4 to 7, or Minnesota Rules, part 9555.9700, for each recipient, if applicable; (2) attendance records as specified under section 245A.14, subdivision 14, paragraph (c), including the date of attendance with the day, month, and year; and the pickup and drop-off time in hours and minutes with a.m. and p.m. designations; (3) the monthly and quarterly program requirements in Minnesota Rules, part 9555.9710, subparts 1, items E and H; 3; 4; and 6, if applicable; (4) the name and qualification of each registered physical therapist, registered nurse, and registered dietitian who provides services to the adult day services or nonresidential program; and (5) the location where the service was provided. If the location is an alternate location from the usual place of service, the documentation must include the address, or a description if the address is not available, of both the origin site and destination site; the length of time at the alternate location with a.m. and p.m. designations; and a list of participants who went to the alternate location. (b) A provider must not exceed the provider's licensed capacity. If a provider exceeds the provider's licensed capacity, the department must recover all Minnesota health care programs payments from the date the provider exceeded licensed capacity.

EFFECTIVE DATE. This section is effective August 1, 2019.

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Elderly waiver customized living incentive grants

First special session, SF12—Chapter 9, Article 4, Section 28 Health & Human Services omnibus bill Effective: July 1, 2019 Short description Elderly waiver (EW) customized living (CL) service providers that serve at least 75% elderly waiver participants have preference when applying for these new incentive-based grants.

Summary One area of discussion that was raised during legislative hearings is the financial difficulty of operating an assisted living setting that has a high percentage of EW-CL clients. While the legislature did not fund the further implementation of the new EW rate setting formula adopted in 2017, the legislature did appropriate $1,000,000 per biennium (FY2020–21 and FY2022–23) for the Minnesota Department of Human Services (DHS) to distribute incentive grants to EW-CL providers.

Providers with an EW-CL clientele percentage greater than 75% will be given preference. DHS will use the following objectives to establish the request for proposals (RFP) outcomes and criteria: • provide more efficient, higher quality services; • encourage home- and community-based services (HCBS) providers to innovate; • equip HCBS providers with organizational tools and expertise to improve their quality; • incentivize HCBS providers to invest in better services; and • disseminate successful performance improvement strategies statewide.

Implications Providers with a high proportion of EW-CL clients will want to review the RFP and consider applying.

Care Providers of Minnesota expects the RFP to be issued after July 1, 2019, and will inform members when it is released.

Bill language Chapter 9, Article 4, Section 28: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/ Sec. 28. DIRECTION TO COMMISSIONER; ELDERLY WAIVER CUSTOMIZED LIVING SERVICE PROVIDERS. (a) The commissioner of human services shall develop incentive-based grants to be available during fiscal years 2020 and 2021 only for elderly waiver customized living service providers for achieving outcomes specified in a contract. The commissioner may solicit proposals from providers and implement those that, on a competitive basis, best meet the state's policy objectives, giving preference to providers that serve at least 75 percent elderly waiver participants. The commissioner shall limit expenditures under this subdivision to the amount appropriated for this purpose. (b) In establishing the specified outcomes and related criteria, the commissioner shall consider the following state policy objectives: (1) provide more efficient, higher quality services; (2) encourage home and community-based services providers to innovate; (3) equip home and community-based services providers with organizational tools and expertise to improve their quality; (4) incentivize home and community-based services providers to invest in better services; and (5) disseminate successful performance improvement strategies statewide.

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Housing access grant modification to population served

First special session, SF12—Chapter 9, Article 5, Section 34 Health & Human Services omnibus bill Effective: July 1, 2019

Short description Housing access grants have modified the criteria for the population served.

Summary The new statute language allows housing access grants to be given to public and private agencies to support and assist individuals with a disability as defined. This change eliminates the language that individuals must be eligible for publicly funded home- and community-based services (HCBS), including state plan home care.

Implications Care Providers of Minnesota staff do not believe there are any implications with this new language.

Bill language Chapter 9, Article 5, Section 34: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/ Sec. 34. Minnesota Statutes 2018, section 256B.0658, is amended to read: 256B.0658 HOUSING ACCESS GRANTS. The commissioner of human services shall award through a competitive process contracts for grants to public and private agencies to support and assist individuals eligible for publicly funded home and community-based services, including state plan home care with a disability as defined in section 256B.051, subdivision 2, paragraph (e), to access housing.

Grants may be awarded to agencies that may include, but are not limited to, the following supports: assessment to ensure suitability of housing, accompanying an individual to look at housing, filling out applications and rental agreements, meeting with landlords, helping with Section 8 or other program applications, helping to develop a budget, obtaining furniture and household goods, if necessary, and assisting with any problems that may arise with housing.

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PCA enhanced rate allows for elderly monthly case mix budget cap increase

First Special Session, SF12—Chapter 9, Article 5, Section 48 Health & Human Services omnibus bill Effective: July 1, 2019, or upon federal approval

Short description The Minnesota Department of Human Services (DHS) may authorize an increase in the monthly case mix budget caps for elderly waiver (EW) clients accessing enhanced personal care assistance (PCA) services.

Summary Elderly waiver clients may receive enhanced PCA services under the PCA and the Community First Services & Supports (CFSS) programs. The new language allows DHS to approve an exception of up to 107.5% of the EW client’s monthly case mix budget caps. The exception must be reauthorized annually at the time of reassessment.

Implications PCA services are provided outside of the customized living budget. As a result, the change does not impact the service rate limits for customized living services.

Bill language Chapter 9, Article 5, Section 48: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/ Sec. 48. Minnesota Statutes 2018, section 256B.0915, subdivision 3a, is amended to read: Subd. 3a. Elderly waiver cost limits. (f) The commissioner shall approve an exception to the monthly case mix budget cap in paragraph (a) to account for the additional cost of providing enhanced rate personal care assistance services under section 256B.0659 or 256B.85. The exception shall not exceed 107.5 percent of the budget otherwise available to the individual. The exception must be reapproved on an annual basis at the time of a participant's annual reassessment.

EFFECTIVE DATE. This section is effective July 1, 2019, or upon federal approval, whichever is later. The commissioner of human services shall notify the revisor of statutes when federal approval is obtained.

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CADI—Tiered standards, customized living & integrated community supports First special session, SF12—Chapter 9, Article 5, Section 60 Health & Human Services omnibus bill Effective: January 1, 2021, or upon federal approval, whichever is later Short description The Community Access for Disability Inclusion (CADI) waiver rate methodologies for newly-created integrated community supports (ICS) were codified. Customized living/24-hour customized living (CL) for CADI waiver clients was modified to address needs specific to disability-related recipient needs and adjust for regional differences.

Summary Beginning in 2017, and continuing until the recent approval of the Statewide Transition Plan by the Centers for Medicare & Medicaid Services (CMS), the Minnesota Department of Human Services (DHS) pursued and developed a policy of tiered-standards for CADI CL. Part of DHS’ tiered-standards approach necessitated the development of a new payment methodology, ICS. This rate methodology is now provided in statute. Moreover, DHS is now able to adjust CADI CL tool to reflect the needs of CADI clients. Presently, the Elderly Waiver program’s definition of services is utilized.

Implications The tiered-standards proposal adopted by DHS’ statewide transition plan was not supported by Care Providers of Minnesota. While the modification of the CL tool to fit the needs and services of CADI clients will likely be helpful, the newly-created ICS service and rate methodology are not understood at this point. It is also not known how nursing services will fit into the new ICS service.

Care Providers of Minnesota will engage DHS to get a better understanding of these proposals.

Bill language Chapter 9, Article 5, Section 60: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/ Sec. 60. Minnesota Statutes 2018, section 256B.4914, subdivision 6, is amended to read: Subd. 6. Payments for residential support services. (e) Payments for integrated community support services must be calculated as follows: (1) the base shared staffing shall be eight hours divided by the number of people receiving support in the integrated community support setting; (2) the individual staffing hours shall be the average number of direct support hours provided directly to the service recipient; (3) the personnel hourly wage rate must be based on the most recent Bureau of Labor Statistics Minnesota-specific rates or rates derived by the commissioner as provided in subdivision 5; (4) except for subdivision 5, paragraph (a), clauses (4) and (21) to (23), multiply the result of clause (3) by the product of one plus the competitive workforce factor in subdivision 5, paragraph (b), clause (1); (5) for a recipient requiring customization for deaf and hard-of-hearing language accessibility under subdivision 12, add the customization rate provided in subdivision 12 to the result of clause (4); (6) multiply the number of shared and individual direct staff hours in clauses (1) and (2) by the appropriate staff wages; (7) multiply the number of shared and individual direct staff hours in clauses (1) and (2) by the product of the supervisory span of control ratio in subdivision 5, paragraph (b), clause (2), and the appropriate supervisory wage in subdivision 5, paragraph (a), clause (21); (8) combine the results of clauses (6) and (7) and multiply the result by one plus the employee vacation, sick, and training allowance ratio in subdivision 5, paragraph (b), clause (3). This is defined as the direct staffing cost; 89

(9) for employee-related expenses, multiply the direct staffing cost by one plus the employeerelated cost ratio in subdivision 5, paragraph (b), clause (4); and (10) for client programming and supports, the commissioner shall add $2,260.21 divided by 365. (f) The total rate must be calculated as follows: (1) add the results of paragraph (e), clauses (9) and (10); (2) add the standard general and administrative rate, the program-related expense ratio, and the absence and utilization factor ratio; (3) divide the result of clause (1) by one minus the result of clause (2). This is the total payment amount; and (4) adjust the result of clause (3) by a factor to be determined by the commissioner to adjust for regional differences in the cost of providing services. (g) The payment methodology for customized living and 24-hour customized living services must be the customized living tool. The commissioner shall revise the customized living tool to reflect the services and activities unique to disability-related recipient needs and adjust for regional differences in the cost of providing services.

EFFECTIVE DATE. This section is effective January 1, 2020, or upon federal approval, whichever is later, except paragraphs (e) to (g) are effective January 1, 2021, or upon federal approval, whichever is later. The commissioner of human services shall notify the revisor of statutes when federal approval is obtained.

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Modification to housing support contracts

First special session, SF12—Chapter 9, Article 5, Section 77 Health & Human Services omnibus bill Effective: July 1, 2019 Short description Modifications to the Housing Support program (formerly group residential housing) contract content.

Summary Housing supports contracts must now include a provision confirming that the provider will not limit or restrict the number of hours an applicant or recipient chooses to be employed.

Implications Care Providers of Minnesota staff don’t believe there are any implications to this addition to the housing supports contract.

Bill language Chapter 9, Article 5, Section 77: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/ Sec. 77. Minnesota Statutes 2018, section 256I.04, subdivision 2b, is amended to read: Subd. 2b. Housing support agreements. (a) Agreements between agencies and providers of housing support must be in writing on a form developed and approved by the commissioner and must specify the name and address under which the establishment subject to the agreement does business and under which the establishment, or service provider, if different from the group residential housing establishment, is licensed by the Department of Health or the Department of Human Services; the specific license or registration from the Department of Health or the Department of Human Services held by the provider and the number of beds subject to that license; the address of the location or locations at which group residential housing is provided under this agreement; the per diem and monthly rates that are to be paid from housing support funds for each eligible resident at each location; the number of beds at each location which are subject to the agreement; whether the license holder is a not-for-profit corporation under section 501(c)(3) of the Internal Revenue Code; and a statement that the agreement is subject to the provisions of sections 256I.01 to 256I.06 and subject to any changes to those sections. (b) Providers are required to verify the following minimum requirements in the agreement: (1) current license or registration, including authorization if managing or monitoring medications; (2) all staff who have direct contact with recipients meet the staff qualifications; (3) the provision of housing support; (4) the provision of supplementary services, if applicable; (5) reports of adverse events, including recipient death or serious injury; and (6) submission of residency requirements that could result in recipient eviction.; and (7) confirmation 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. (c) Agreements may be terminated with or without cause by the commissioner, the agency, or the provider with two calendar months prior notice. The commissioner may immediately terminate an agreement under subdivision 2d.

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Assurance of supplementary services from housing supports providers

First special session, SF12—Chapter 9, Article 5, Section 78 Health & Human Services omnibus bill Effective: July 1, 2019

Short description Housing supports providers of supplementary services have new requirements to ensure recipients have assistance with services as identified in statement of need.

Summary Providers of housing supports supplementary services must ensure recipients have, at minimum, assistance with services as identified in the recipient’s professional statement of need. Providers of the supplementary services shall maintain case notes with the date and description of services to individual recipients.

Implications Care Providers of Minnesota staff don’t believe there are any implications to this section.

Bill language Chapter 9, Article 5, Section 78: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/ Sec. 78. Minnesota Statutes 2018, section 256I.04, is amended by adding a subdivision to read: Subd. 2h. Required supplementary services. Providers of supplementary services shall ensure that recipients have, at a minimum, assistance with services as identified in the recipient's professional statement of need under section 256I.03, subdivision 12. Providers of supplementary services shall maintain case notes with the date and description of services provided to individual recipients.

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EW, CADI, CL & home care providers to submit annual labor market information

First special session, SF12—Chapter 9, Article 5, Sections 39, 41, 54, 69, 72; and Article 11, Section 50 Health & Human Services omnibus bill Effective: January 1, 2020

Short description Home- and community-based services (HCBS) providers, including elderly waiver (EW)/CADI customized living (CL) and home care providers, shall annually submit labor market information to the Minnesota Department of Human Services (DHS).

Summary For the past few legislative sessions, DHS has sought authority to collect labor market information from HCBS providers. DHS believes specific labor market information is needed to legislative requests and develop policy and rate systems.

Virtually all HCBS waiver providers, and some state plan service providers will need to comply and submit labor market information to DHS, including the following: • EW (including customized living) • CADI (including customized living) • Home care providers (Chapter 9, Article 11, Section 50) • Alternative care (AC) • Developmental disabilities (DD) • Providers of state plan HCBS services including: o personal care assistance choice option o personal care assistance provider agencies • Intermediate care facilities • Agency-providers and financial management service (FMS) providers Data to be submitted includes: • number of direct-care staff; • wages of direct-care staff; • hours worked by direct-care staff; • overtime wages of direct-care staff; • overtime hours worked by direct-care staff; • benefits paid and accrued by direct-care staff; • direct-care staff retention rates; • direct-care staff job vacancies; • amount of travel time paid; • program vacancy rates; and • other related data requested by the commissioner.

Implications The annual DHS data collection may potentially become an arduous and time-consuming endeavor.

DHS may withhold medical assistance reimbursement from non-complying providers.

Care Providers of Minnesota will advocate DHS to minimize complexity and length of the data request.

Bill language Chapter 9, Article 5, Section 54: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/

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Disability waiver rate setting changes, including 4.7% workforce factor

First special session, SF12—Chapter 9, Article 5, Sections 55–68 & 89 Health & Human Services omnibus bill Effective: January 1, 2020, or upon federal approval, whichever is later

Short description Several changes were made to the Disability Waiver Rate Setting (DWRS) system, including the application of a 4.7% workforce factor and the decrease in the frequency of future wage index rebasing from every five years to every two years.

Summary As has been the case since the DWRS system was passed in 2013, there were many policy and funding discussions surrounding the complicated statewide rate management system. Changes adopted this year include the following: • The seventh year of banding, which was not approved by the Centers for Medicare & Medicaid Services (CMS), was removed from statute • Upon federal approval, establishes new DWRS base wages for adult day services, day support services, prevocational services, individualized home supports with family training, and individualized home support staff • The base wages for independent living skills specialist staff and supported employment staff were removed • The frequency of future inflation adjustments of certain component values from every five years to every two years a. Likewise, the DWRS system will now use of 30-month old data rather than the most recently available data when performing the inflation adjustment • DHS is required to develop a new rate methodology for residential services provided in a setting where the provider also lives Implications With the end of rate banding and the changes made this year, the DWRS system will fully go into effect.

Bill language Chapter 9, Article 5, Sections 55–68 & 89: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/

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Vendor accountability & DHS program integrity

First special session, SF12—Chapter 9, Article 2, Sections 111, 113–121 Health & Human Services omnibus bill Effective: Day following final enactment Short description The definition of “vendor of medical care” was altered to presumably expand the definition to include non-medical services. Additional requirements, sanctions, and forfeiture language were added to Minnesota statutes 256B.064: “Sanctions; Monetary Recovery.”

Summary After several years of discussion, the legislature granted the Minnesota Department of Human Services (DHS) Office of the Inspector General (OIG) new authority for sanctions and monetary recovery.

Importantly, the ambiguity of the statutory definition of “vendor of medical care” is removed.

Presumably, this was done to make it clear that other Medicaid services not considered medical care are included (Bill language below).

Additional changes include the following: • Vendors shall be suspended from the Medical Assistance (MA) for a minimum of five years if the vendor is convicted of a crime, received a stay of adjudication, or entered a court-ordered diversion program for an offense related to a provision of a health service under medical assistance or healthcare fraud • Repeated violations with regard to documentation of services and submission claims, DHS may “order a vendor to forfeit a fine based on the nature, severity, and chronicity of the violations, in an amount of up to $5,000 or 20% of the value of the claims, whichever is greater” • Vendors that makes a payment to individuals or entities that are on the provider exclusion list must refund the MA program and is subject to sanctions, penalties, and fines • Immunity from civil or criminal liability is provided for a person making a good-faith report, and for a person employed by a lead investigative agency • A person receiving personal care assistance or community first services that result in fraudulent billing are placed in the restricted recipient program • If the DHS is investigating the possible overpayment of Medicaid funds, immediate access must be given to the vendors office, documentation, and claims Implications While Minnesota has always had statute regarding Medicaid fraud and over payments, the newlyadded language strengthens the investigatory and compliance tools available to DHS. Bill language Chapter 9, Article 2, Sections 111, 113–121: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/

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DHS licensing changes

First special session, SF12—Chapter 9, Article 2, Sections 14–20; 22–29; 31 & 33–39 Health & Human Services omnibus bill Effective: Various Short description The Minnesota Department of Human Services (DHS) sought to modify their licensing provisions in Minnesota statutes 245A, including new requirements for change of ownership and modifications to licensing sanctions. These changes are a mixture of some technical and some substantive changes that will affect licensing under DHS. Summary • Section 14 (245A.02, subdivision 3) adds government entities to the definition of “applicant” in the human services licensing statutes, and makes other technical clarifying changes, effective January 1, 2020 • Section 15 (245A.02, subdivision 3b) defines “authorized agent” as a controlling individual designated to communicate with the commissioner of human services on licensing matters, effective January 1, 2020 • Section 16 (245A.02, subdivision 8) amends the definition of “license” to mean a license issued under section 245A.04, effective January 1, 2020 • Section 17 (245A.02, subdivision 9) adds government entities to the definition of “license holder” in the human services licensing statutes, and makes other technical clarifying changes, effective January 1, 2020 • Section 18 (245A.02, subdivision 10c) adds a definition of “organization” for purposes of the human services licensing statutes • Section 19 (245A.02, subdivision 12) modifies the definition of “private agency” for purposes of the human services licensing statutes by making a technical conforming change and adding the private agency designated to perform licensing functions under section 245A.16 • Section 20 (245A.02, subdivision 14) adds a definition for “residential program” providing home- and community-based services (HCBS) under a medical assistance waiver, effective January 1, 2020 • Section 22 (245A.03, subdivision 1) makes a technical conforming change • Section 23 (245A.03, subdivision 3) makes technical conforming changes • Section 24 (245A.04, subdivision 1) modifies the list of entities required to be licensed, updates application requirements for controlling individuals, authorized agents, and government entities, and expands what information must be submitted with an application for an individual or organization, effective January 1, 2020 • Section 25 (245A.04, subdivision 2) permits the commissioner to use electronic communication to notify a municipality or other political subdivision that would be affected by issuance of a new license, effective January 1, 2020 • Section 26 (245A.04, subdivision 4) removes the requirement that a program must be evaluated by its consumers prior to being issued a license, effective January 1, 2020; precludes the commissioner from issuing a correction order or negative licensing action for violations not discussed in an exit interview; and provides a process for a family child care license holder to dispute a county licensor’s interpretation of a licensing requirement, effective September 30, 2019 • Section 27 (245A.04, subdivision 6) modifies the list of factors that the commissioner must consider before taking a licensing action to include the applicable requirements of statutes and rules, as well as the applicant or license holder’s knowledge of the applicable requirements of statutes and rules, effective January 1, 2020 • Section 28 (245A.04, subdivision 7) makes conforming changes to accommodate the new provisions regarding a temporary change of ownership license, effective January 1, 2020

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Section 29 (245A.04, subdivision 7a) requires a license holder to notify the commissioner before altering license information or changing the license holder’s authorized agent, controlling individual, information on file with the secretary of state, program location or service, and tax identification numbers o License holders may provide the information within 10 days of the change if circumstance outside of the license holder’s control preclude immediate notification o License holders must also provide updated articles of incorporation and other documentation of changes when altering information on file with the secretary of state o This section is effective January 1, 2020 Section 31 (245A.04, subdivision 10) makes a conforming change to incorporate the updated definition for “organization” Section 33 (245A.043) establishes the circumstances, procedures, and requirements for a license application after change in ownership, including requirements for providers to notify the commissioner of proposed changes in ownership and procedures to issue of a temporary change in ownership license where necessary, effective January 1, 2020 Section 34 (245A.05) permits the commissioner to deny a license application if the applicant fails to demonstrate competent knowledge of applicable rules and statutes, has a history of noncompliance, or is prohibited from holding a license, effective January 1, 2020 Section 35 (245A.055) permits the commissioner to close a license if the program has not served any client for at least 12 consecutive months, establishes a process for the commissioner to notify the license holder of the license closure, and permits the license holder to request reconsideration of the closure, effective January 1, 2020 Section 36 (245A.07, subdivision 1) makes technical conforming changes Section 37 (245A.07, subdivision 2) permits a temporary immediate suspension of a license where the holder is criminally charged for fraud or theft against a program administered by the commissioner, effective January 1, 2020 Section 38 (245A.07, subdivision 2a, paragraph (d)) establishes that the burden of proof on the commissioner in expedited hearings is a preponderance of the evidence that a criminal action against a provider involving fraud or theft against a program administrated by the commissioner was not dismissed Section 39 (245A.07, subdivision 3) makes conforming changes to the list of circumstances for which the commissioner may suspend or revoke a license, or impose a fine, effective January 1, 2020

Bill language Chapter 9, Article 2, Sections 14–20; 22–29; 31 & 33–39: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/

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Modifications to HCBS standards in 245D programs

First special session, SF12—Chapter 9, Article 5, Sections 11, 13–18 Health & Human Services omnibus bill Effective: January 1, 2021 or upon federal approval, whichever is later Short description There is new and clean-up language for 245D programs providing home- and community-based services (HCBS) programs.

Summary The following sections of the new legislation include updates to the 245D language.

• Section 11: Applicability o States which services can be provided under each waiver type and includes the new integrated community supports program • Section 13: Service plan review and evaluation o Adds language that once a year a coordinated team, including the person receiving services, must meet to discuss whether technology can assist in achieving the persons goal outcomes • Section 14: Annual training o Deletes some current language about annual training requirements • Section 15: Alternative sources of training o Deletes current language regarding the commissioner preapproving online and alternative sources of training • Section 16: Positive support professional qualifications o Changes the title from behavior professional to positive support professional and updates the qualifications for this position • Section 17: Positive support analyst qualifications o Changes the title from behavior analyst to positive support analyst and updates the qualifications for this position.

• Section 18: Positive support specialist qualifications o Changes the title from behavior specialist to positive support specialist and updates the qualifications for this position.

Implications Care Providers of Minnesota staff don’t believe there are any implications to this section.

Bill language Chapter 9, Article 5, Sections 11, 13–18: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/

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Long-term care consultation (MnCHOICES) modifications

First special session, SF12—Chapter 5, Article 5, Sections 44-45, 47 & 53 Health & Human Services omnibus budget bill Effective: July 1, 2019 Short description There were several additions to the long-term care consultation (MnCHOICES) statutes.

Summary The following sections had modifications and new language added regarding the long-term care consultation (MnCHOICES): • Section 44: Assessment and support planning o Modifies and cleans up current MnCHOICES assessment and support planning language to and includes a provision that, with permission of the client, a provider, or someone close to the client, may provide information to the assessor 60 days prior to assessment or reassessment happens; the assessor must consider the content of the submitted report within their own documentation o This section also adds language that an assessor and the individual responsible for developing the coordinated service and support plan must complete the community support plan and the coordinated service and support plan in no more than 60 days from the assessment visit • Section 45: Long-term care reassessments and community support plan updates o This section adds language that prior to a MnCHOICES reassessment the assessor must review the most recent assessment o Adds that an individuals’ coordinated service and support plan must be completed within 60 days of the reassessment o Adds that the commissioner will develop mechanisms for providers and case managers to share information with the assessor prior to a reassessment so the support planning process can be tailored to the person's current needs and preferences • Section 47: Administrative activity o Adds language about assuring the commissioner works with lead agencies responsible for conducting long-term consultation services to develop a set of measurable benchmarks to demonstrate quarterly improvement in the average time per assessment and other measures for efficiency o The commissioner may collect data on these benchmarks and provide to the lead agencies and legislative committees an annual trend analysis of the data to demonstrate the commissioner's compliance with the requirements • Section 53: Assessment and reassessment o Outlines that a provider or person who is familiar with the person may submit a report at least 60 days prior to the end of the person’s current service agreement  The certified assessor must consider the content of the submitted report prior to finalizing the person's assessment or reassessment Implications Care Providers of Minnesota staff do not feel there are any implications to this modified and new language.

Bill language Chapter 5, Article 5, Sections 44-45, 47 & 53: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/

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Opioids—Council & stewardship fund established; fees & revenue requirements

Regular session, HF400—Chapter 63 Effective: January 1, 2020

Short description This chapter establishes the Opioid Addiction Advisory Council and the opioid stewardship fund. The chapter also requires drug manufacturers and wholesale drug distributors that sell or distribute opioids in Minnesota to pay an opiate product registration fee; and requires any revenues from opioid settlement to be deposited into the opioid stewardship account.

Summary Over the past couple years, the legislature has struggled with a state response to the opioid epidemic.

With personal stories of legislators and their families struggling with opioid addiction and losing loved ones to opioid overdose, there remained motivation to create a state response. Much of the debate focused on how much new fees would raise, who would pay them, and where they would be deposited.

There was also the creation of the Opiate Epidemic Response Advisory Council which was established to develop and implement a comprehensive and effective statewide effort to address the opioid addiction and overdose epidemic in Minnesota. This council will focus on prevention and education, including public awareness for adults and youth, prescriber education, the development and sustainability of opioid overdose prevention and education programs, the role of adult protective services in prevention response, and providing financial support to local law enforcement agencies for opiate programs.

Implications There are two specific implications for members: • First, the language amends § 145C.05, subd. 2., allowing a healthcare directive to include instructions to prohibit the administration, dispensing, or prescribing of an opioid o States that these instructions should not be construed to limit opioid use for the treatment of substance abuse, opioid dependence, or an overdose, unless otherwise prohibited in the directive o Opioid instructions entered into health record • Second, the chapter adds § 145C.17, requiring a healthcare provider, at the request of the patient or healthcare agent, to enter into the patient’s health record any instructions relating to the use of opioids Bill language Chapter 63: https://www.revisor.mn.gov/laws/2019/0/Session+Law/Chapter/63/

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Epinephrine auto-injector expansion

Regular session, SF1257—Chapter 61, Section 1, Subdivisions 1–6 Effective: August 1, 2019 Short description • Clarifies that an "authorized individual" means an individual who has successfully completed the required training program • Expands epinephrine auto-injectors to additional epinephrine delivery systems approved by the FDA for public use • Permits authorized individuals (not just authorized entities) to obtain and store epinephrine autoinjector to be provided or administered in good faith to individuals experiencing anaphylaxis • Covers such authorized individuals with good samaritan law protections Summary We continue to wait for a bulletin from the Minnesota Department of Health (MDH) regarding the inclusion of nursing facilities and home care providers as entities that the commissioner has authorized to obtain and administer epinephrine auto-injectors without a prescription. This new 2019 modification will permit individuals who complete the required training to obtain and administer epinephrine autoinjectors without a prescription In addition, this expands the law to include other epinephrine delivery systems approved by the FDA for public use beyond auto-injectors.

Bill language Chapter 61: https://www.revisor.mn.gov/laws/2019/0/Session+Law/Chapter/61/

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Wage theft

First special session, HF2—Chapter 7, Article 3 Jobs omnibus budget bill Effective: July 1, 2019, for all except criminal provisions, which go into effect August 1, 2019 Short description A new definition of wage theft was signed into law, clarifying what constitutes wage theft. Additional record-keeping requirements for employers were added and penalties for intentional wage theft were increased.

Summary Wage notice The new law requires employers to provide a “wage notice” that provides the following information: • rate(s) of pay and the basis of that pay, including whether the employee is paid by the hour, shift, day, week, salary, piece, commission, or other method and the specific application of any additional rates; • allowances claimed for meals and lodging; • paid vacation time, sick time, or other PTO accruals and terms of use; • employee’s employment status, including whether the employee is exempt and on what basis; • the list of deductions that may be made from the employee’s pay; and • the number of days in the pay period, the regularly scheduled payday, and the payday on which the employee will receive the first payment of wages earned.

• the legal name of the employer and, if different, the operating name of the employer; • the physical address of the employer’s main office or principal place of business, and, if different, a mailing address; and • the telephone number of the employer.

Additional notice requirements include the following: • The notice must be provided in English and must include text provided by the commissioner of the Minnesota Department of Labor (DLI) informing that the employee may request the notice be provided in a particular language • If requested, the employer must provide the notice in the language requested by the employee, and the commissioner of DLI is to assist employers with the translation of the notice into the requested languages Additionally, employers must ensure the following: • The wage notice is signed by the employee and provided to the employee on the employee’s start date, with a copy retained by the employer • They provide an updated notice to an employee whenever anything in the original written notice changes with a copy retained by the employer Employment records The bill requires employers to keep additional employment records, including basis of pay and a list of personnel policies given to employees.Under the new law, employers must keep records of: • all employees paid at piece rate and the number of pieces completed at each piece rate; • a list of all personnel policies provided to the employee, including the date the policies were given to the employee and a brief description of the policies; and • a copy of all wage notices and updated wage notices provided to the employee.

All these records must be readily available for inspection by the commissioner of DLI within 72 hours of a demand and creates a new maximum fine of $5,000 for repeat violations of DLI recordkeeping requirements.

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Earnings statements Earnings statements provided at the end of each pay period must include all previously required information, plus: • the basis of pay, including whether the employee is paid by the hour, shift, day, week, salary, piece, commission, or other method and the specific application of any additional rates; • allowances for meals or lodging; and • the address and phone number of the employer.

Additional changes The Minnesota attorney general (AG) is now authorized to enforce state wage-and-hour laws, and the office is hiring attorneys to specifically focus on wage theft. As such, employers should expect an uptick in enforcement actions from DLI and the AG office.

Additionally, the commissioner of the DLI is now authorized to enter places of business during work hours to investigate potential violations of wage-and-hour laws, collect evidence, and interview witnesses.

Employers must pay all non-commission earnings at least every 31 days and pay all earned commissions at least once every three months. Failure to timely pay wages may result in a daily penalty for each day beyond a 10-day notice period, without a cap. Untimely payment of commissions is a violation, subject to daily penalties equal to 1/15 of the unpaid commissions, also without a cap.

Prohibits retaliation against employees for asserting rights by reporting or expressing an intention to report violations of the wage theft law.

Staring August 1, 2019, wage theft will be a criminal offense. The penalties and fines vary depending on the severity and intentionality of the wage theft, up to a felony charge.

Implications Employers will have to update employee earnings statements to reflect the required changes. They will also have to provide notices to new employees that include a variety of information about wages and benefits and must keep a signed copy of the notice and additional will have to provide updated notices when changes to compensation or benefits occur.

Bill language Chapter 7, Article 3: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/7/ The Minnesota DLI has issued preliminary guidance regarding the new law that is available here: https://www.dli.mn.gov/sites/default/files/pdf/wage_theft_summary_employers.pdf; and a frequently asked questions section here: http://www.dli.mn.gov/business/employment-practices/wage-theft-qa.

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Limits on receiving public funds

First special session, SF12—Chapter 9, Article 2, Section 13 Health & Human Services omnibus bill Effective: Day following final enactment Short description The Minnesota Department of Human Services (DHS) has a prohibition on vendors, enrolled individuals, or grantees on the exclusion list from participating in certain things. This change clarifies that if you are registered, you can also be placed on the exclusion list; items were also added to the commissioner’s required actions. In addition, it clarified a definition of provider.

Summary DHS added “registered” in any program to the prohibition on receiving any public funds. They sought this clarification to ensure that the commissioner’s ability to prohibit excluded providers, vendors, or individuals would include those who are “registered” with DHS. The change further clarified that the commissioner shall disenroll, revoke, or suspend a license; or disqualify or debar the excluded provider, vendor, or individual in other programs.

The change modified the definition of excluded to included disqualified, having a license that has been revoked or suspended under chapter 245A, or debarred or suspended, or excluded pursuant to section 256B.064, subdivision 3.

Finally, the change clarified that provider includes any entity or individual receiving payment from a program administered by DHS, or owners of entities receiving payments from a program administered

by DHS. Implications Because housing with services is a registration, this clarification ensures that housing with services registrants, providers, and owners also fall under the statutory limits on receiving public funds.

Bill language Chapter 9, Article 2, Section 13: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/ Sec. 13. Minnesota Statutes 2018, section 245.095, is amended to read: 245.095 LIMITS ON RECEIVING PUBLIC FUNDS. Subdivision 1. Prohibition. (a) If a provider, vendor, or individual enrolled, licensed, or receiving funds under a grant contract, or registered in any program administered by the commissioner, including under the commissioner's powers and authorities in section 256.01, is excluded from any that program administered by the commissioner, including under the commissioner's powers and authorities in section 256.01, the commissioner shall: (1) prohibit the excluded provider, vendor, or individual from enrolling or, becoming licensed, receiving grant funds, or registering in any other program administered by the commissioner.; and (2) disenroll, revoke or suspend a license, disqualify, or debar the excluded provider, vendor, or individual in any other program administered by the commissioner. (b) The duration of this prohibition, disenrollment, revocation, suspension, disqualification, or debarment must last for the longest applicable sanction or disqualifying period in effect for the provider, vendor, or individual permitted by state or federal law.

Subd. 2. Definitions. (a) For purposes of this section, the following definitions have the meanings given them.

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(b) "Excluded" means disenrolled, subject to license revocation or suspension, disqualified, or subject to vendor debarment disqualified, having a license that has been revoked or suspended under chapter 245A, or debarred or suspended under Minnesota Rules, part 1230.1150, or excluded pursuant to section 256B.064, subdivision 3. (c) "Individual" means a natural person providing products or services as a provider or vendor. (d) "Provider" means includes any entity or individual receiving payment from a program administered by the Department of Human Services, and an owner, controlling individual, license holder, director, or managerial official of an entity receiving payment from a program administered by the Department of Human Services.

EFFECTIVE DATE. This section is effective the day following final enactment.

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Changes to the Board of Examiners for Nursing Home Administrators fees

First special session, SF12—Chapter 9, Article 10, Section 1 Health & Human Services omnibus bill Effective: July 1, 2019

Short description Moves the Board of Examiners for Nursing Home Adminstrators (BENHA) fees from rules to statute, adds fees, and increases fees amounts.

Summary Previously, the fees for BENHA were generated in rules. This action puts them in statute, and then added fees for things such as health services executive (HSE), and then increased the fee amounts.

Implications Increases in fee amounts for licenses, and adding the health services executive to the list. HSEs will also be allowed under the assisted living licensure law as outlined in other article.

Bill language Chapter 9, Article 10, Section 1: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/ Section 1. [144A.291] FEES. Subdivision 1. Nonrefundable fees. All fees are nonrefundable.

Subd. 2. Amounts. (a) Fees may not exceed the following amounts but may be adjusted lower by board direction and are for the exclusive use of the board as required to sustain board operations.

The maximum amounts of fees are: (1) application for licensure, $200; (2) for a prospective applicant for a review of education and experience advisory to the license application, $100, to be applied to the fee for application for licensure if the latter is submitted within one year of the request for review of education and experience; (3) state examination, $125; (4) initial license, $250 if issued between July 1 and December 31, $100 if issued between January 1 and June 30; (5) acting administrator permit, $400; (6) renewal license, $250; (7) duplicate license, $50; (8) reinstatement fee, $250; (9) health services executive initial license, $200; (10) health services executive renewal license, $200; (11) reciprocity verification fee, $50; (12) second shared administrator assignment, $250; (13) continuing education fees: (i) greater than 6 hours, $50; and (ii) 7 hours or more, $75; (14) education review, $100; (15) fee to a sponsor for review of individual continuing education seminars, institutes, workshops, or home study courses: (i) for less than seven clock hours, $30; and (ii) for seven or more clock hours, $50; (16) fee to a licensee for review of continuing education seminars, institutes, workshops, or home study courses not previously approved for a sponsor and submitted with an application for license renewal: 119

(i) for less than seven clock hours total, $30; and (ii) for seven or more clock hours total, $50; (17) late renewal fee, $75; (18) fee to a licensee for verification of licensure status and examination scores, $30; (19) registration as a registered continuing education sponsor, $1,000; and (20) mail labels, $75. (b) The revenue generated from the fees must be deposited in an account in the state government special revenue fund.

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Medical cannabis—Changes to registered designated caregiver

First special session, SF12—Chapter 9, Article 11 , Section 81, Subdivision 11; and Section 89, Subdivision 4 Health & Human Services omnibus bill Effective: August 1, 2019 Short description • Decreases the age required to be a “registered designated caregiver” from 21 years old to 18 years old • Replaces the “inability to self-administer medical cannabis” with “requiring assistance in administering or obtaining medical cannabis” when requesting a registered designated caregiver • Requires registered designated caregivers to have a criminal background check every two years • Permits a registered designated caregiver to also be enrolled in the registry program as a person who may possess and use medical cannabis as a patient Implications These changes may expand the ability for medical cannabis users to have a registered designated caregiver.

Bill language Chapter 9, Article 11 , Section 81, Subdivision 11; and Section 89, Subdivision 4: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/

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False Claims Act civil penalties

First special session, SF12—Chapter 9, Article 2, Section 5 Health & Human Services omnibus bill Effective: July 1, 2019 Short description The legislature made a technical change to Minnesota statutes 15C.02, “False Claims Against the State.�

Summary The technical change altered the amounts of civil penalty from a specific number of not less than $5,500 and not more than $11,000 per false or fraudulent claim to conform with the federal False Claims Act, US code, Title 31, Section 3729, and as modified by the federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. The treble damages continue as well.

Implications No functional change for liability under the False Claims Act for providers.

Bill language Chapter 9, Article 2, Section 5: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/ Sec. 5. Minnesota Statutes 2018, section 15C.02, is amended to read: 15C.02 LIABILITY FOR CERTAIN ACTS. (a) A person who commits any act described in clauses (1) to (7) is liable to the state or the political subdivision for a civil penalty of not less than $5,500 and not more than $11,000 per false or fraudulent claim in the amounts set forth in the federal False Claims Act, United States Code, title 31, section 3729, and as modified by the federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, plus three times the amount of damages that the state or the political subdivision sustains because of the act of that person, except as otherwise provided in paragraph (b): (1) knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval; (2) knowingly makes or uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim; (3) knowingly conspires to commit a violation of clause (1), (2), (4), (5), (6), or (7); (4) has possession, custody, or control of property or money used, or to be used, by the state or a political subdivision and knowingly delivers or causes to be delivered less than all of that money or property; (5) is authorized to make or deliver a document certifying receipt for money or property used, or to be used, by the state or a political subdivision and, intending to defraud the state or a political subdivision, makes or delivers the receipt without completely knowing that the information on the receipt is true; (6) knowingly buys, or receives as a pledge of an obligation or debt, public property from an officer or employee of the state or a political subdivision who lawfully may not sell or pledge the property; or (7) knowingly makes or uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the state or a political subdivision, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the state or a political subdivision. (b) Notwithstanding paragraph (a), the court may assess not less than two times the amount of damages that the state or the political subdivision sustains because of the act of the person if: (1) the person committing a violation under paragraph (a) furnished an officer or employee of the state or the political subdivision responsible for investigating the false or fraudulent claim violation

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with all information known to the person about the violation within 30 days after the date on which the person first obtained the information; (2) the person fully cooperated with any investigation by the state or the political subdivision of the violation; and (3) at the time the person furnished the state or the political subdivision with information about the violation, no criminal prosecution, civil action, or administrative action had been commenced under this chapter with respect to the violation and the person did not have actual knowledge of the existence of an investigation into the violation. (c) A person violating this section is also liable to the state or the political subdivision for the costs of a civil action brought to recover any penalty or damages. (d) A person is not liable under this section for mere negligence, inadvertence, or mistake with respect to activities involving a false or fraudulent claim.

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Blue Ribbon Commission established

First special session, SF12—Chapter 9, Article 7, Section 46 Health & Human Services omnibus bill Effective: July 1, 2019 Short description Cost containment in the Health & Human Service budget has been a bipartisan, bicameral, perennial issue at the legislature. This year’s legislative compromise on the topic was a “Blue Ribbon Commission on Health & Human Services” to advise and assist the legislature and governor in transforming the health and human services system to build greater efficiencies, savings and better outcomes for Minnesotans.

Summary The commissioners of the departments of Health (MDH) and Human Services (DHS) shall convene a Blue Ribbon Commission to advise and assist the legislature and governor in transforming the health and human services system to build greater efficiencies, savings, and better outcomes for Minnesotans. The Blue Ribbon Commission will consist of 17 members: • Two members of the House of Representatives appointed by the speaker of the House • Two members of the Senate appointed by the Senate majority leader • The commissioner of human services or designee; • The commissioner of health or designee; • Four members appointed by the governor who have demonstrated expertise and leadership in healthcare, long-term care, or social service organization, health and human services technology, or other collaborative health and human services system improvement activities with a history of providing guidance to state and local governments • Two members appointed by the governor who have demonstrated leadership in employer and group purchaser activities in which the group purchaser is not a health plan company; one of the members appointed must be from a labor organization • Five members appointed by the governor who have demonstrated public or private leadership, cultural responsiveness, and innovation in the area of health and human services

By October 1, 2020, the commission shall develop and present to the legislature and the governor an action plan for transforming the health and human services system to improve program efficiencies, produce savings, and promote better outcomes for Minnesotans. The action plan must include, but is not limited to, the following: • Strategies to increase administrative efficiencies and improve program simplification within health and human services public programs, including examining the roles and experience of counties and tribes in delivering services and identifying any conflicting and duplicative roles and responsibilities among health and human services agencies, counties, and tribes • Approaches to reducing health and human services expenditures, including identifying evidence-based strategies for addressing the significant cost drivers of state spending on health and human services, including the medical assistance program; • Opportunities for reducing fraud and improving program integrity in health and human services • Statewide strategies for improving access to health and human services with a focus on addressing geographic, racial, and ethnic disparities.

The commission may contract with a private entity or consultant as necessary to complete its duties under this section, and shall be exempt from state procurement process requirements under Minnesota statutes, Chapter 16C. Implications Because the topics include long-term care, Care Providers of Minnesota staff will monitor and attend public meetings of the “Blue Ribbon Commission” to provide input and expertise to the process. The 125

legislative discussions at the Capitol had a heavy emphasis on “bending the cost curve� in long-term care.

Given the projected demographic growth rate and the political reality that the governor and the House proposed a state share cut of $68 million to nursing facilities, we anticipate cuts to long-term care to be a likely discussion point of the commission.

Bill language Chapter 9, Article 7, Section 46: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/ Sec. 46. BLUE RIBBON COMMISSION ON HEALTH AND HUMAN SERVICES. Subdivision 1. Establishment. The commissioners of health and human services shall convene a Blue Ribbon Commission to advise and assist the legislature and governor in transforming the health and human services system to build greater efficiencies, savings, and better outcomes for Minnesotans.

Subd. 2. Membership; appointment. (a) The Blue Ribbon Commission consists of 17 members as follows: (1) two members of the house of representatives appointed by the speaker of the house; (2) two members of the senate appointed by the senate majority leader; (3) the commissioner of human services or designee; (4) the commissioner of health or designee; (5) four members appointed by the governor who have demonstrated expertise and leadership in health care, long-term care, or social service organization, health and human services technology, or other collaborative health and human services system improvement activities with a history of providing guidance to state and local governments; (6) two members appointed by the governor who have demonstrated leadership in employer and group purchaser activities in which the group purchaser is not a health plan company; one of the members appointed must be from a labor organization; and (7) five members appointed by the governor who have demonstrated public or private leadership, cultural responsiveness, and innovation in the area of health and human services. (b) The governor is exempt from the requirements of the open appointments process for purposes of appointing commission members.

Subd. 3. Cochairs. The commissioners of health and human services shall serve as cochairs of the commission. The commissioner of human services shall convene the first meeting.

Subd. 4. Compensation; expenses; reimbursement. Public members shall be compensated and reimbursed for expenses as provided in Minnesota Statutes, section 15.0575, subdivision 3.

Subd. 5. Administrative support. The commissioners of health and human services shall provide meeting space and administrative support to the commission.

Subd. 6. Gifts. The commission may accept gifts and grants on behalf of the state for the purpose of supporting the commission. Any such gifts or grants shall constitute donations to the state.

Funds received under this subdivision are appropriated to the commissioner of human services to support the commission in performing its duties.

Subd. 7. Public and stakeholder engagement. The commissioners of health and human services shall review available research to determine Minnesotans' values, preferences, opinions, and perceptions related to human services and health care benefits and other issues that may be before the commission and shall present the findings to the commission.

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Subd. 8. Duties. (a) By October 1, 2020, the commission shall develop and present to the legislature and the governor an action plan for transforming the health and human services system to improve program efficiencies, produce savings, and promote better outcomes for Minnesotans. The action plan must include, but is not limited to, the following: (1) strategies to increase administrative efficiencies and improve program simplification within health and human services public programs, including examining the roles and experience of counties and tribes in delivering services and identifying any conflicting and duplicative roles and responsibilities among health and human services agencies, counties, and tribes; (2) approaches to reducing health and human services expenditures, including identifying evidence-based strategies for addressing the significant cost drivers of state spending on health and human services, including the medical assistance program; (3) opportunities for reducing fraud and improving program integrity in health and human services; and (4) statewide strategies for improving access to health and human services with a focus on addressing geographic, racial, and ethnic disparities. (b) The commission may contract with a private entity or consultant as necessary to complete its duties under this section, and shall be exempt from state procurement process requirements under Minnesota Statutes, chapter 16C. Subd. 9. Limitations. (a) In developing the action plan, the commission shall take into consideration the impact of its recommendations on: (1) the existing capacity of state agencies, including staffing needs, technology resources, and existing agency responsibilities; and (2) the capacity of county and tribal partners. (b) The commission shall not include in the action plan recommendations that may result in loss of benefits for the individuals eligible for state health and human services public programs or exacerbate health disparities and inequities in access to health care and human services.

Subd. 10. Expiration. The Blue Ribbon Commission expires October 2, 2020, or the day after submitting the action plan required under subdivision 8, whichever is earlier.

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Nonemergency medical transportation program integrity

First special session, SF12—Chapter 9, Article 7, Sections 27–29 Health & Human Services omnibus bill Effective: Various

Short description A perennial issue at the legislature is nonemergency medical transportation services (NEMT). This year, the issue revolved around “program integrity” and ensuring that drivers are individually enrolled and reported on the claim as the individual who provided the services. Other program integrity measures included establishing more transportation services oversight, as well as a five-year period of ineligibility if a provider is terminated from the program.

Summary Program integrity in the NEMT arena has been a consistent topic at the legislature. This year, the measures included creating a requirement that drivers must be individually enrolled with the commissioner and reported on the claims as the individual who provided the services to the clients.

Furthermore, the commissioner will now contract with a vendor or dedicate staff to oversee providers of NEMT services. Finally, the changes include that terminated NEMT providers, including all named individuals on the current enrollment disclosure form and known or discovered affiliates of the NEMT provider, are not eligible to enroll as a nonemergency medical transportation provider for five years following termination. Additionally, after the five years, if they seek to re-enroll, they will be placed on a one-year probationary period. During probation, the commissioner will complete unannounced site visits and request documentation to review compliance with program requirements.

Implications The changes should not affect your requirements as providers. They are intended to get at the “bad actors” and establish more program integrity in the NEMT service industry.

Bill language Chapter 9, Article 7, Sections 27–29: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/

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Prescription drug repository program established

First special session, SF12—Chapter 9, Article 9, Section 7 Health & Human Services omnibus budget bill Effective: July 1, 2019 Short description A drug repository program will be developed by the Minnesota Board of Pharmacy that allows for the donation and collection of unused prescription drugs.

Summary This bill directs the Minnesota Board of Pharmacy to establish a drug repository program. The program would allow individuals without prescription drug coverage to obtain donated prescription drugs and medical supplies from a central or local repository if the drug or medical supply has been prescribed for the individual. The central repository must be a wholesale distributor; healthcare facilities, such as physician offices and hospitals, may elect to accept donations and serve as local repositories. A repository may charge the individual a handling fee of up to 250% of the Medical Assistance (MA) dispensing fee. Healthcare facilities, nursing and assisted living facilities, pharmacies, drug wholesalers, drug manufacturers, and persons age 18 or older may donate drugs and medical supplies under the program. Controlled drugs are not included in the allowable donations. The program is voluntary.

Implications Nursing facilities and assisted living facilities will be allowed to collect and donate unused/unopened non-controlled prescription drugs. Check with your pharmacy consultant if you are interested in participating.

Bill language Chapter 9, Article 9, Section 7: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/

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Mental health provisions

First special session, SF12—Chapter 9, Article 6 Health & Human Services omnibus budget bill Effective: Various; most effective July 1, 2019 Short description There were numerous mental health treatment supportive provisions included in the HHS omnibus budget bill; the following summary includes a list of the top-level highlights impacting long-term care with two specific programs delineated in more detail.

Summary • Funding to sustain certified community behavioral health clinics (CCBHCs) • Policy language to better enforce mental health parity • Major increase in funding for suicide prevention—$5.6M the first biennium and $7.46M the second biennium • Decrease the spenddown under Medical Assistance (Medicaid) for people with disabilities in 2022 so it’s 100% of the poverty guidelines instead of 81% • Increasing timely access to substance use disorder treatment • Additional funding for mobile mental health crisis services—$2.5 next two years and $9.793 the following biennium • Addresses the issue of travel time for mental health professionals • Incorporating changes to behavioral health homes • Allows for prescriptions to be refilled in an emergency situation for chronic conditions (could help with mental health medications) Minnesota’s six CCBHCs are certified effective from July 1, 2017–June 30, 2019. The CCBHC sustainability and expansion language was a priority for the Minnesota Department of Human Services (DHS)and governor’s office; funding is included in the HHS omnibus bill for the following: • Clarity on peer services • Expansion to include crisis mental health AND substance use services • Variances extended to additional entities moving toward CCBHC • Seeks federal authority for sustainability and expansion as well as funding • Directs commissioner to develop a methodology for payment for post demonstration model Behavioral health home services • Establishes provider requirements and service delivery standards • Establishes discharge criteria for individuals and requirements for behavioral health home services providers prior to discharge • Identifies staff qualifications, training, and “practice transformation” requirements for behavioral health homes Implications The availability of CCBHCs throughout the state is an important resource for prevention and treatment; crisis mental health services are especially important for long-term care providers who may be serving individuals with mental health issues. People who use CCBHCs may receive the following: • Outpatient mental health and substance use services • Primary care screening and monitoring • Screening, assessment, and diagnosis, including risk management • Psychiatric rehabilitation services, including ARMHS and CTSS • Crisis mental health services, including 24-mobile crisis teams, emergency crisis intervention services, and crisis stabilization • Patient-centered treatment planning • Targeted case management 133

• • •

Peer and family support Services for members of the armed forces and veterans Connections with other providers and systems

A list of current providers and resources on this program can be found on the DHS website: http://bit.ly/CCBHCs. Bill language Chapter 9, Article 6: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/

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report s

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DHS reports required by legislature

First special session, SF12—Chapter 9, Article 2, Sections 129 & 130 Health & Human Services omnibus bill Effective: Day following final enactment Short description The Minnesota Department of Human Services (DHS) is required to provide two reports to the legislature no later than January 15, 2020.

Summary The legislature has requested DHS work with the counties and report back by January 15, 2020, with separate recommendations on the following: 1. Identifying and clarifying the responsibilities of DHS and the counties for fraud investigations of programs administered by DHS 2. Providing recommendations for possible legislation on how to count self-employment income for the purpose of determining eligibility and maintaining the integrity of public assistance programs Implications The legislature and DHS are committed to making sure the integrity of the state’s public assistance programs is upheld. These reports will further this effort.

Bill language Chapter 9, Article 2, Sections 129 & 130: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/ Sec. 129. DIRECTION TO COMMISSIONER; RESPONSIBILITY FOR FRAUD INVESTIGATIONS IN PUBLIC PROGRAMS. No later than January 15, 2020, the commissioner of human services, in consultation with counties, shall report to the chairs and ranking minority members of the legislative committees and divisions with jurisdiction over human services on recommendations for legislation that identifies and clarifies the responsibilities of the department and counties for fraud investigations in public programs administered by the commissioner.

EFFECTIVE DATE. This section is effective the day following final enactment.

Sec. 130. DIRECTION TO COMMISSIONER; SELF-EMPLOYMENT INCOME IN PUBLIC ASSISTANCE PROGRAMS. No later than January 15, 2020, the commissioner of human services, in consultation with counties and other relevant stakeholders, shall report to the chairs and ranking minority members of the legislative committees and divisions with jurisdiction over human services with recommendations for legislation on how to count self-employment income for purposes of determining eligibility for and maintaining the integrity of public assistance programs.

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Integrated community supports setting capacity report

First special session, SF12—Chapter 9, Article 5, Section 19 Health & Human Services omnibus bill Effective: Upon federal approval

Short description Providers providing integrated community supports must complete a settings report.

Summary The Minnesota Department of Human Services (DHS) will require, after federal approval, license holders providing integrated community supports to send in a capacity report which is intended to ensure the identified location of service delivery meeting the criteria of the home and community based services (HCBS) requirements.

Included in the setting capacity report will be the total number of living units in the setting; the total number of integrated community supports recipients; and the percentage of the units in the setting that are on the program.

This legislation also outlines that only the license holder of the setting is allowed to provide integrated community supports at that address.

Implications DHS has set size and setting limitations on some HCBS programs. By reporting setting capacity to DHS, they will now begin tracking where enrollees are living and the services they receive. It is possible, because of these limits, people will have less choice in where they want to live and receive services.

Bill language Chapter 9, Article 5: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/ Sec. 19. [245D.12] INTEGRATED COMMUNITY SUPPORTS; SETTING CAPACITY REPORT. (a) The license holder providing integrated community support, as defined in section 245D.03, subdivision 1, paragraph (c), clause (8), must submit a setting capacity report to the commissioner to ensure the identified location of service delivery meets the criteria of the home and community-based service requirements as specified in section 256B.492. (b) The license holder shall provide the setting capacity report on the forms and in the manner prescribed by the commissioner. The report must include: (1) the address of the multifamily housing building where the license holder delivers integrated community supports and owns, leases, or has a direct or indirect financial relationship with the property owner; (2) the total number of living units in the multifamily housing building described in clause (1) where integrated community supports are delivered; (3) the total number of living units in the multifamily housing building described in clause (1), including the living units identified in clause (2); and (4) the percentage of living units that are controlled by the license holder in the multifamily housing building by dividing clause (2) by clause (3). (c) Only one license holder may deliver integrated community supports at the address of the multifamily housing building.

EFFECTIVE DATE. This section is effective upon the date of federal approval. The commissioner of human services shall notify the revisor of statutes when federal approval is obtained.

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DHS to study reconfiguration of DD & CADI waivers

First special session, SF12—Chapter 9, Article 5, Section 86 Health & Human Services omnibus bill Effective: Day following final enactment Short description The Minnesota Department of Human Services (DHS) is directed to develop a proposal to reconfigure the Development Disability (DD) and Community Access for Disability Inclusion (CADI) waivers and submit report a report to the legislature by January 15, 2021.

Summary The legislature has directed DHS to research the reconfiguration the DD and CADI waivers. In doing so, the legislature has requested that any proposal should do the following: • Simplify the administration of the programs • Incentivize inclusive of person-centered supports • Enhance each person's personal authority over the person's service choice • Align benefits across waivers • Encourage equity across programs and populations • Promote long-term sustainability of needed services To the maximum extent possible, the disability waiver reconfiguration must maintain service stability and continuity of care, while promoting the most independent and integrated supports of each person's choosing in both short- and long-term planning.

DHS is instructed to collect feedback and input from providers; persons accessing home- and community-based services waivers and their families; and client advocacy organizations.

Implications Care Providers of Minnesota will participate in the DHS led stakeholder engagement process.

Bill language Chapter 9, Article 5, Section 86: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/

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New PCA rate methodology to be studied

First special session, SF12—Chapter 9, Article 5, Section 87 Health & Human Services omnibus bill Effective: August 1, 2019 Short description The Minnesota Department of Human Services (DHS) will study the feasibility of developing a new rate methodology for personal care assistance (PCA) services under the PCA and the Community First Services & Supports (CFSS) programs.

Summary DHS will examine the development of a new methodology for PCA services and provide recommendations and proposed draft legislation to the legislature by February 1, 2020.

The study shall take the following into consideration: • The development of a methodology that is similar to the Disability Waiver Rate System (DWRS) • The alignment of the rate methodology with the collective bargaining agreement and negotiation cycle • Strategies for ensuring adequate, competitive wages for direct-care workers • Methods and determine the necessary resources for the commissioner to more consistently collect and audit data from the direct care industry Implications Care Providers of Minnesota will monitor the DHS study.

Bill language Chapter 9, Article 5, Section 87: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/

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Recommendations to increase use of supportive technology

First special session, SF12—Chapter 9, Article 5, Section 92 Health & Human Services omnibus budget bill Effective: July 1, 2019

Short description The final omnibus bill did not include funding for supporting technology, broadly defined as technology to help persons with disabilities to live more independently. Rather, there was a task force appointed to develop strategies to increase the availability of supportive technology.

Summary The commissioner of human services shall appoint under Minnesota statutes, Section 256.01, Subdivision 6, a Minnesota Technology First Advisory Task Force to advise the commissioner on strategies to increase the use of supportive technology in services and programs the commissioner administers for persons with disabilities to enable them to live more independently in community settings, work in competitive integrated environments, participate in inclusive community activities, and increase quality of life.

The advisory task force must include: • one representative of the Department of Human Services; • two representatives of the counties; • one representative of the Associations of Residential Resources in Minnesota; • one representative from the Minnesota Organization for Habilitation and Rehabilitation; • one representative of the Disability Law Center; • one representative of the Arc Minnesota; • one representative from STAR Services; • one representative from the Traumatic Brain Injury Advisory Committee; • one representative from NAMI Minnesota; • one representative from Advocating Change Together; • two individuals with disabilities accessing supportive technology; and • one parent advocate.

Meetings will be held quarterly and hosted by the department. Subcommittees may be developed as necessary by the commissioner. The advisory task force will provide an annual written report with recommendations to the commissioner by June 30 of each year of its existence, beginning June 30, 2020. The advisory task force expires on June 30, 2021.

Bill language Chapter 9, Article 5, Section 92: https://www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/9/

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