Important new rights for Home and Community-Based Services (HCBS) waiver participants have been added to the DHS licensing statute, 245D in the DHS Policy bill, HF 1535 (Chapter 78). These changes include limiting temporary suspension to situations in which the person’s conduct poses an imminent risk of physical harm to themselves or others despite the use of positive support strategies; the person has new medical issues or the program has not been paid for services (often due to a Medical Assistance spend-down issue). Service termination is limited to the three reasons for suspension plus three additional circumstances, including a person whose welfare cannot be maintained by the facility, the program ceases to operate or the person’s eligibility for HCBS waiver services has been terminated by the lead agency. Both service suspension and termination have new detailed notice requirements, including specific efforts by the license holder to resolve the issues prior to suspension or termination.
In addition to license holder obligations, the commissioner of human services is required to assure that the county or tribal case manager for a person notified of residential services termination develop an action plan and proceed promptly to work to resolve these issues for the HCBS waiver participant within the 60-day notice period. New rights to appeal have been added to the DHS administrative appeal law for an individual who has been notified that their residential services will be terminated. The scope of the appeal is limited to whether the proposed service termination is allowed and the requirements have been met. If a participant facing termination of residential services of the new 245D provision requests a temporary stay while new services are developed, the hearing can also include an appeal of the case management services provided in order to arrange for new residential services. The commissioner may issue a temporary order staying the proposed demission while an appeal is pending or for a period of time needed to implement an order from the commissioner. The commissioner may extend a temporary stay of demission for up to 30 calendar days to allow completion of arrangements for new residential services. Specific provisions on service suspension, termination and related appeal rights can be found in HF 1535, Article 6, Section 5 – 8 (Chapter 78), Chapter 78, Laws of Minnesota 2015.
Name Change for CADI Waiver
The name of the home and community waiver for person otherwise qualified for nursing facility services, now called Community Alternatives for Disabled Individuals has been changed to “Community Access for Disability Inclusion” in the DHS Policy bill, HF 1535 The new name will have the same acronym, CADI.
-Anne Henry is an attorney with the Minnesota Disability Law Center.