| 1 | 1 | | 1.1 A bill for an act |
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| 2 | 2 | | 1.2 relating to human services; modifying licensure requirements for community |
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| 3 | 3 | | 1.3 residential settings; amending Minnesota Statutes 2022, section 245A.11, |
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| 4 | 4 | | 1.4 subdivisions 7, 7a; proposing coding for new law in Minnesota Statutes, chapter |
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| 5 | 5 | | 1.5 245D. |
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| 6 | 6 | | 1.6BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: |
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| 7 | 7 | | 1.7 Section 1. Minnesota Statutes 2022, section 245A.11, subdivision 7, is amended to read: |
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| 8 | 8 | | 1.8 Subd. 7.Adult foster care; variance for alternate overnight supervision.(a) The |
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| 9 | 9 | | 1.9commissioner may grant a variance under section 245A.04, subdivision 9, to rule parts |
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| 10 | 10 | | 1.10requiring a caregiver to be present in an adult foster care home during normal sleeping hours |
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| 11 | 11 | | 1.11to allow for alternative methods of overnight supervision. The commissioner may grant the |
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| 12 | 12 | | 1.12variance if the local county licensing agency recommends the variance and the county |
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| 13 | 13 | | 1.13recommendation includes documentation verifying that: |
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| 14 | 14 | | 1.14 (1) the county has approved the license holder's plan for alternative methods of providing |
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| 15 | 15 | | 1.15overnight supervision and determined the plan protects the residents' health, safety, and |
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| 16 | 16 | | 1.16rights; |
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| 17 | 17 | | 1.17 (2) the license holder has obtained written and signed informed consent from each |
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| 18 | 18 | | 1.18resident or each resident's legal representative documenting the resident's or legal |
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| 19 | 19 | | 1.19representative's agreement with the alternative method of overnight supervision; and |
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| 20 | 20 | | 1.20 (3) the alternative method of providing overnight supervision, which may include the |
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| 21 | 21 | | 1.21use of technology, is specified for each resident in the resident's: (i) individualized plan of |
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| 22 | 22 | | 1.22care; (ii) individual service plan under section 256B.092, subdivision 1b, if required; or (iii) |
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| 23 | 23 | | 1Section 1. |
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| 24 | 24 | | 23-00622 as introduced11/29/22 REVISOR DTT/CH |
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| 25 | 25 | | SENATE |
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| 26 | 26 | | STATE OF MINNESOTA |
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| 27 | 27 | | S.F. No. 758NINETY-THIRD SESSION |
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| 28 | 28 | | (SENATE AUTHORS: HOFFMAN, Abeler and Fateh) |
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| 29 | 29 | | OFFICIAL STATUSD-PGDATE |
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| 30 | 30 | | Introduction and first reading01/26/2023 |
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| 31 | 31 | | Referred to Health and Human Services 2.1individual resident placement agreement under Minnesota Rules, part 9555.5105, subpart |
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| 32 | 32 | | 2.219, if required. |
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| 33 | 33 | | 2.3 (b) To be eligible for a variance under paragraph (a), the adult foster care license holder |
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| 34 | 34 | | 2.4must not have had a conditional license issued under section 245A.06, or any other licensing |
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| 35 | 35 | | 2.5sanction issued under section 245A.07 during the prior 24 months based on failure to provide |
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| 36 | 36 | | 2.6adequate supervision, health care services, or resident safety in the adult foster care home. |
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| 37 | 37 | | 2.7 (c) A license holder requesting a variance under this subdivision to utilize technology |
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| 38 | 38 | | 2.8as a component of a plan for alternative overnight supervision may request the commissioner's |
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| 39 | 39 | | 2.9review in the absence of a county recommendation. Upon receipt of such a request from a |
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| 40 | 40 | | 2.10license holder, the commissioner shall review the variance request with the county. |
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| 41 | 41 | | 2.11 (d) A variance granted by the commissioner according to this subdivision before January |
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| 42 | 42 | | 2.121, 2014, to a license holder for an adult foster care home must transfer with the license when |
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| 43 | 43 | | 2.13the license converts to a community residential setting license under chapter 245D. The |
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| 44 | 44 | | 2.14terms and conditions of the variance remain in effect as approved at the time the variance |
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| 45 | 45 | | 2.15was granted The variance requirements under this subdivision for alternative overnight |
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| 46 | 46 | | 2.16supervision do not apply to community residential settings licensed under chapter 245D. |
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| 47 | 47 | | 2.17 EFFECTIVE DATE.This section is effective January 1, 2024. |
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| 48 | 48 | | 2.18 Sec. 2. Minnesota Statutes 2022, section 245A.11, subdivision 7a, is amended to read: |
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| 49 | 49 | | 2.19 Subd. 7a.Alternate overnight supervision technology; adult foster care and |
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| 50 | 50 | | 2.20community residential setting licenses.(a) The commissioner may grant an applicant or |
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| 51 | 51 | | 2.21license holder an adult foster care or community residential setting license for a residence |
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| 52 | 52 | | 2.22that does not have a caregiver in the residence during normal sleeping hours as required |
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| 53 | 53 | | 2.23under Minnesota Rules, part 9555.5105, subpart 37, item B, or section 245D.02, subdivision |
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| 54 | 54 | | 2.2433b, but uses monitoring technology to alert the license holder when an incident occurs that |
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| 55 | 55 | | 2.25may jeopardize the health, safety, or rights of a foster care recipient. The applicant or license |
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| 56 | 56 | | 2.26holder must comply with all other requirements under Minnesota Rules, parts 9555.5105 |
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| 57 | 57 | | 2.27to 9555.6265, or applicable requirements under chapter 245D, and the requirements under |
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| 58 | 58 | | 2.28this subdivision. The license printed by the commissioner must state in bold and large font: |
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| 59 | 59 | | 2.29 (1) that the facility is under electronic monitoring; and |
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| 60 | 60 | | 2.30 (2) the telephone number of the county's common entry point for making reports of |
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| 61 | 61 | | 2.31suspected maltreatment of vulnerable adults under section 626.557, subdivision 9. |
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| 62 | 62 | | 2.32 (b) Applications for a license under this section must be submitted directly to the |
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| 63 | 63 | | 2.33Department of Human Services licensing division. The licensing division must immediately |
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| 64 | 64 | | 2Sec. 2. |
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| 65 | 65 | | 23-00622 as introduced11/29/22 REVISOR DTT/CH 3.1notify the county licensing agency. The licensing division must collaborate with the county |
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| 66 | 66 | | 3.2licensing agency in the review of the application and the licensing of the program. |
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| 67 | 67 | | 3.3 (c) Before a license is issued by the commissioner, and for the duration of the license, |
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| 68 | 68 | | 3.4the applicant or license holder must establish, maintain, and document the implementation |
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| 69 | 69 | | 3.5of written policies and procedures addressing the requirements in paragraphs (d) through |
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| 70 | 70 | | 3.6(f). |
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| 71 | 71 | | 3.7 (d) The applicant or license holder must have policies and procedures that: |
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| 72 | 72 | | 3.8 (1) establish characteristics of target populations that will be admitted into the home, |
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| 73 | 73 | | 3.9and characteristics of populations that will not be accepted into the home; |
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| 74 | 74 | | 3.10 (2) explain the discharge process when a resident served by the program requires |
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| 75 | 75 | | 3.11overnight supervision or other services that cannot be provided by the license holder due |
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| 76 | 76 | | 3.12to the limited hours that the license holder is on site; |
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| 77 | 77 | | 3.13 (3) describe the types of events to which the program will respond with a physical |
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| 78 | 78 | | 3.14presence when those events occur in the home during time when staff are not on site, and |
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| 79 | 79 | | 3.15how the license holder's response plan meets the requirements in paragraph (e), clause (1) |
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| 80 | 80 | | 3.16or (2); |
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| 81 | 81 | | 3.17 (4) establish a process for documenting a review of the implementation and effectiveness |
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| 82 | 82 | | 3.18of the response protocol for the response required under paragraph (e), clause (1) or (2). |
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| 83 | 83 | | 3.19The documentation must include: |
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| 84 | 84 | | 3.20 (i) a description of the triggering incident; |
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| 85 | 85 | | 3.21 (ii) the date and time of the triggering incident; |
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| 86 | 86 | | 3.22 (iii) the time of the response or responses under paragraph (e), clause (1) or (2); |
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| 87 | 87 | | 3.23 (iv) whether the response met the resident's needs; |
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| 88 | 88 | | 3.24 (v) whether the existing policies and response protocols were followed; and |
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| 89 | 89 | | 3.25 (vi) whether the existing policies and protocols are adequate or need modification. |
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| 90 | 90 | | 3.26 When no physical presence response is completed for a three-month period, the license |
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| 91 | 91 | | 3.27holder's written policies and procedures must require a physical presence response drill to |
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| 92 | 92 | | 3.28be conducted for which the effectiveness of the response protocol under paragraph (e), |
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| 93 | 93 | | 3.29clause (1) or (2), will be reviewed and documented as required under this clause; and |
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| 94 | 94 | | 3Sec. 2. |
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| 95 | 95 | | 23-00622 as introduced11/29/22 REVISOR DTT/CH 4.1 (5) establish that emergency and nonemergency phone numbers are posted in a prominent |
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| 96 | 96 | | 4.2location in a common area of the home where they can be easily observed by a person |
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| 97 | 97 | | 4.3responding to an incident who is not otherwise affiliated with the home. |
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| 98 | 98 | | 4.4 (e) The license holder must document and include in the license application which |
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| 99 | 99 | | 4.5response alternative under clause (1) or (2) is in place for responding to situations that |
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| 100 | 100 | | 4.6present a serious risk to the health, safety, or rights of residents served by the program: |
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| 101 | 101 | | 4.7 (1) response alternative (1) requires only the technology to provide an electronic |
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| 102 | 102 | | 4.8notification or alert to the license holder that an event is underway that requires a response. |
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| 103 | 103 | | 4.9Under this alternative, no more than ten minutes will pass before the license holder will be |
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| 104 | 104 | | 4.10physically present on site to respond to the situation; or |
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| 105 | 105 | | 4.11 (2) response alternative (2) requires the electronic notification and alert system under |
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| 106 | 106 | | 4.12alternative (1), but more than ten minutes may pass before the license holder is present on |
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| 107 | 107 | | 4.13site to respond to the situation. Under alternative (2), all of the following conditions are |
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| 108 | 108 | | 4.14met: |
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| 109 | 109 | | 4.15 (i) the license holder has a written description of the interactive technological applications |
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| 110 | 110 | | 4.16that will assist the license holder in communicating with and assessing the needs related to |
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| 111 | 111 | | 4.17the care, health, and safety of the foster care recipients. This interactive technology must |
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| 112 | 112 | | 4.18permit the license holder to remotely assess the well being of the resident served by the |
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| 113 | 113 | | 4.19program without requiring the initiation of the foster care recipient. Requiring the foster |
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| 114 | 114 | | 4.20care recipient to initiate a telephone call does not meet this requirement; |
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| 115 | 115 | | 4.21 (ii) the license holder documents how the remote license holder is qualified and capable |
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| 116 | 116 | | 4.22of meeting the needs of the foster care recipients and assessing foster care recipients' needs |
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| 117 | 117 | | 4.23under item (i) during the absence of the license holder on site; |
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| 118 | 118 | | 4.24 (iii) the license holder maintains written procedures to dispatch emergency response |
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| 119 | 119 | | 4.25personnel to the site in the event of an identified emergency; and |
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| 120 | 120 | | 4.26 (iv) each resident's individualized plan of care, support plan under sections 256B.0913, |
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| 121 | 121 | | 4.27subdivision 8; 256B.092, subdivision 1b; 256B.49, subdivision 15; and 256S.10, if required, |
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| 122 | 122 | | 4.28or individual resident placement agreement under Minnesota Rules, part 9555.5105, subpart |
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| 123 | 123 | | 4.2919, if required, identifies the maximum response time, which may be greater than ten minutes, |
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| 124 | 124 | | 4.30for the license holder to be on site for that resident. |
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| 125 | 125 | | 4.31 (f) Each resident's placement agreement, individual service agreement, and plan must |
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| 126 | 126 | | 4.32clearly state that the adult foster care or community residential setting license category is |
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| 127 | 127 | | 4.33a program without the presence of a caregiver in the residence during normal sleeping hours; |
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| 128 | 128 | | 4Sec. 2. |
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| 129 | 129 | | 23-00622 as introduced11/29/22 REVISOR DTT/CH 5.1the protocols in place for responding to situations that present a serious risk to the health, |
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| 130 | 130 | | 5.2safety, or rights of residents served by the program under paragraph (e), clause (1) or (2); |
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| 131 | 131 | | 5.3and a signed informed consent from each resident served by the program or the person's |
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| 132 | 132 | | 5.4legal representative documenting the person's or legal representative's agreement with |
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| 133 | 133 | | 5.5placement in the program. If electronic monitoring technology is used in the home, the |
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| 134 | 134 | | 5.6informed consent form must also explain the following: |
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| 135 | 135 | | 5.7 (1) how any electronic monitoring is incorporated into the alternative supervision system; |
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| 136 | 136 | | 5.8 (2) the backup system for any electronic monitoring in times of electrical outages or |
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| 137 | 137 | | 5.9other equipment malfunctions; |
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| 138 | 138 | | 5.10 (3) how the caregivers or direct support staff are trained on the use of the technology; |
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| 139 | 139 | | 5.11 (4) the event types and license holder response times established under paragraph (e); |
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| 140 | 140 | | 5.12 (5) how the license holder protects each resident's privacy related to electronic monitoring |
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| 141 | 141 | | 5.13and related to any electronically recorded data generated by the monitoring system. A |
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| 142 | 142 | | 5.14resident served by the program may not be removed from a program under this subdivision |
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| 143 | 143 | | 5.15for failure to consent to electronic monitoring. The consent form must explain where and |
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| 144 | 144 | | 5.16how the electronically recorded data is stored, with whom it will be shared, and how long |
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| 145 | 145 | | 5.17it is retained; and |
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| 146 | 146 | | 5.18 (6) the risks and benefits of the alternative overnight supervision system. |
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| 147 | 147 | | 5.19 The written explanations under clauses (1) to (6) may be accomplished through |
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| 148 | 148 | | 5.20cross-references to other policies and procedures as long as they are explained to the person |
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| 149 | 149 | | 5.21giving consent, and the person giving consent is offered a copy. |
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| 150 | 150 | | 5.22 (g) Nothing in this section requires the applicant or license holder to develop or maintain |
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| 151 | 151 | | 5.23separate or duplicative policies, procedures, documentation, consent forms, or individual |
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| 152 | 152 | | 5.24plans that may be required for other licensing standards, if the requirements of this section |
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| 153 | 153 | | 5.25are incorporated into those documents. |
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| 154 | 154 | | 5.26 (h) The commissioner may grant variances to the requirements of this section according |
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| 155 | 155 | | 5.27to section 245A.04, subdivision 9. |
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| 156 | 156 | | 5.28 (i) For the purposes of paragraphs (d) through (h), "license holder" has the meaning |
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| 157 | 157 | | 5.29under section 245A.02, subdivision 9, and additionally includes all staff, volunteers, and |
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| 158 | 158 | | 5.30contractors affiliated with the license holder. |
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| 159 | 159 | | 5Sec. 2. |
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| 160 | 160 | | 23-00622 as introduced11/29/22 REVISOR DTT/CH 6.1 (j) For the purposes of paragraph (e), the terms "assess" and "assessing" mean to remotely |
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| 161 | 161 | | 6.2determine what action the license holder needs to take to protect the well-being of the foster |
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| 162 | 162 | | 6.3care recipient. |
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| 163 | 163 | | 6.4 (k) The commissioner shall evaluate license applications using the requirements in |
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| 164 | 164 | | 6.5paragraphs (d) to (f). The commissioner shall provide detailed application forms, including |
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| 165 | 165 | | 6.6a checklist of criteria needed for approval. |
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| 166 | 166 | | 6.7 (l) To be eligible for a license under paragraph (a), the adult foster care or community |
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| 167 | 167 | | 6.8residential setting license holder must not have had a conditional license issued under section |
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| 168 | 168 | | 6.9245A.06 or any licensing sanction under section 245A.07 during the prior 24 months based |
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| 169 | 169 | | 6.10on failure to provide adequate supervision, health care services, or resident safety in the |
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| 170 | 170 | | 6.11adult foster care home or community residential setting. |
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| 171 | 171 | | 6.12 (m) The commissioner shall review an application for an alternative overnight supervision |
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| 172 | 172 | | 6.13license within 60 days of receipt of the application. When the commissioner receives an |
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| 173 | 173 | | 6.14application that is incomplete because the applicant failed to submit required documents or |
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| 174 | 174 | | 6.15that is substantially deficient because the documents submitted do not meet licensing |
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| 175 | 175 | | 6.16requirements, the commissioner shall provide the applicant written notice that the application |
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| 176 | 176 | | 6.17is incomplete or substantially deficient. In the written notice to the applicant, the |
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| 177 | 177 | | 6.18commissioner shall identify documents that are missing or deficient and give the applicant |
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| 178 | 178 | | 6.1945 days to resubmit a second application that is substantially complete. An applicant's failure |
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| 179 | 179 | | 6.20to submit a substantially complete application after receiving notice from the commissioner |
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| 180 | 180 | | 6.21is a basis for license denial under section 245A.05. The commissioner shall complete |
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| 181 | 181 | | 6.22subsequent review within 30 days. |
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| 182 | 182 | | 6.23 (n) Once the application is considered complete under paragraph (m), the commissioner |
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| 183 | 183 | | 6.24will approve or deny an application for an alternative overnight supervision license within |
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| 184 | 184 | | 6.2560 days. |
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| 185 | 185 | | 6.26 (o) For the purposes of this subdivision, "supervision" means: |
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| 186 | 186 | | 6.27 (1) oversight by a caregiver or direct support staff as specified in the individual resident's |
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| 187 | 187 | | 6.28place agreement or support plan and awareness of the resident's needs and activities; and |
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| 188 | 188 | | 6.29 (2) the presence of a caregiver or direct support staff in a residence during normal sleeping |
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| 189 | 189 | | 6.30hours, unless a determination has been made and documented in the individual's support |
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| 190 | 190 | | 6.31plan that the individual does not require the presence of a caregiver or direct support staff |
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| 191 | 191 | | 6.32during normal sleeping hours. |
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| 192 | 192 | | 6.33 EFFECTIVE DATE.This section is effective January 1, 2024. |
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| 193 | 193 | | 6Sec. 2. |
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| 194 | 194 | | 23-00622 as introduced11/29/22 REVISOR DTT/CH 7.1 Sec. 3. [245D.261] COMMUNITY RESIDENTIAL SETTINGS; REMOTE |
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| 195 | 195 | | 7.2OVERNIGHT SUPERVISION. |
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| 196 | 196 | | 7.3 Subdivision 1.Definitions.(a) For purposes of this section, the following terms have |
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| 197 | 197 | | 7.4the meanings given them, unless otherwise specified. |
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| 198 | 198 | | 7.5 (b) "Enabling technology" means a device capable of live, two-way communication or |
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| 199 | 199 | | 7.6engagement between a resident and direct support staff at a remote location. |
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| 200 | 200 | | 7.7 (c) "Monitoring technology" means the use of equipment to oversee, monitor, and |
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| 201 | 201 | | 7.8supervise someone who receives medical assistance waiver or alternative care services |
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| 202 | 202 | | 7.9under chapter 256B or 256S. |
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| 203 | 203 | | 7.10 (d) "Resident" means an adult residing in a community residential setting. |
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| 204 | 204 | | 7.11 Subd. 2.Documentation of permissible remote overnight supervision.A license |
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| 205 | 205 | | 7.12holder providing remote overnight supervision in a community residential setting in lieu of |
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| 206 | 206 | | 7.13on-site direct support staff must comply with the requirements of this chapter, including |
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| 207 | 207 | | 7.14the requirement under section 245D.02, subdivision 33b, paragraph (a), clause (3), that the |
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| 208 | 208 | | 7.15absence of direct support staff from the community residential setting while services are |
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| 209 | 209 | | 7.16being delivered must be documented in the resident's support plan or support plan addendum. |
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| 210 | 210 | | 7.17 Subd. 3.Provider requirements for remote overnight supervision.(a) A license |
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| 211 | 211 | | 7.18holder providing remote overnight supervision in a community residential setting must: |
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| 212 | 212 | | 7.19 (1) use enabling technology; |
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| 213 | 213 | | 7.20 (2) clearly state in each person's support plan addendum that the community residential |
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| 214 | 214 | | 7.21setting is a program without the in-person presence of overnight direct support; |
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| 215 | 215 | | 7.22 (3) include with each person's support plan addendum the license holder's protocols for |
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| 216 | 216 | | 7.23responding to situations that present a serious risk to the health, safety, or rights of residents |
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| 217 | 217 | | 7.24served by the program; and |
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| 218 | 218 | | 7.25 (4) include in each person's support plan addendum the person's maximum permissible |
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| 219 | 219 | | 7.26response time as determined by the person's support team. |
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| 220 | 220 | | 7.27 (b) Upon being notified via technology that an incident has occurred that may jeopardize |
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| 221 | 221 | | 7.28the health, safety, or rights of a resident, the license holder must conduct an evaluation of |
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| 222 | 222 | | 7.29the need for the physical presence of a staff member. If a physical presence is needed, a |
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| 223 | 223 | | 7.30staff person, volunteer, or contractor must be on site to respond to the situation within the |
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| 224 | 224 | | 7.31resident's maximum permissible response time. |
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| 225 | 225 | | 7Sec. 3. |
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| 226 | 226 | | 23-00622 as introduced11/29/22 REVISOR DTT/CH 8.1 Subd. 4.Required policies and procedures for remote overnight supervision.(a) A |
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| 227 | 227 | | 8.2license holder providing remote overnight supervision must have policies and procedures |
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| 228 | 228 | | 8.3that: |
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| 229 | 229 | | 8.4 (1) protect the residents' health, safety, and rights; |
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| 230 | 230 | | 8.5 (2) explain the discharge process if a person served by the program requires in-person |
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| 231 | 231 | | 8.6supervision or other services that cannot be provided by the license holder due to the limited |
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| 232 | 232 | | 8.7hours that direct support staff are on site; |
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| 233 | 233 | | 8.8 (3) explain the backup system for technology in times of electrical outages or other |
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| 234 | 234 | | 8.9equipment malfunctions; |
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| 235 | 235 | | 8.10 (4) explain how the license holder trains the direct support staff on the use of the |
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| 236 | 236 | | 8.11technology; and |
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| 237 | 237 | | 8.12 (5) establish a plan for dispatching emergency response personnel to the site in the event |
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| 238 | 238 | | 8.13of an identified emergency. |
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| 239 | 239 | | 8.14 (b) Nothing in this section requires the license holder to develop or maintain separate |
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| 240 | 240 | | 8.15or duplicative policies, procedures, documentation, consent forms, or individual plans that |
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| 241 | 241 | | 8.16may be required for other licensing standards if the requirements of this section are |
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| 242 | 242 | | 8.17incorporated into those documents. |
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| 243 | 243 | | 8.18 Subd. 5.Consent to use of monitoring technology.If a license holder uses monitoring |
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| 244 | 244 | | 8.19technology in a community residential setting, the license holder must obtain a signed |
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| 245 | 245 | | 8.20informed consent form from each resident served by the program or the resident's legal |
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| 246 | 246 | | 8.21representative documenting the resident's or legal representative's agreement to use of the |
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| 247 | 247 | | 8.22specific monitoring technology used in the setting. The informed consent form documenting |
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| 248 | 248 | | 8.23this agreement must also explain: |
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| 249 | 249 | | 8.24 (1) how the license holder uses monitoring technology to provide remote supervision; |
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| 250 | 250 | | 8.25 (2) the risks and benefits of using monitoring technology; |
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| 251 | 251 | | 8.26 (3) how the license holder protects each resident's privacy while monitoring technology |
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| 252 | 252 | | 8.27is being used in the setting; and |
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| 253 | 253 | | 8.28 (4) how the license holder protects each resident's privacy when the monitoring |
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| 254 | 254 | | 8.29technology system electronically records personally identifying data. |
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| 255 | 255 | | 8.30 EFFECTIVE DATE.This section is effective January 1, 2024. |
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| 256 | 256 | | 8Sec. 3. |
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| 257 | 257 | | 23-00622 as introduced11/29/22 REVISOR DTT/CH |
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