ARRM's Daily Dispatch

No Ruling Yet: Hearing in suit to stop 7% DWRS cuts

Arguments were held today in ARRM’s lawsuit against the Minnesota Department of Human Services (DHS), seeking to stop the implementation of the 7 percent cuts to the Disability Waiver Rate System rates. ARRM’s co-plaintiffs were also in attendance: the Minnesota Organization for Habilitation and Rehabilitation (MOHR), and guardian representatives for Karla Dee Marder, Robert Clapper, Kathryn Smith, and Cara Pedrille.

Sam Orbovich argued on behalf of all plaintiffs, effectively delivering our argument that DHS has no authority to cut rates as they remained unchanged in state law, which clearly outlines the state’s obligation. He pointed out to Judge Wilhemina Wright that regardless of decisions at the federal  level by the Center for Medicare and Medicaid Services about its match for Medicaid dollars, state law requires DWRS rates to include the full 7 percent model adjustments added back in 2013 and 2014.

The proceedings also touched on the core of the overarching regulatory dispute: whether the 7 percent after model adjustments passed in 2013 and 2014 do, in fact, constitute a cost of living increase which would conflict with the most recent regularly scheduled rate adjustments.

Judge Wright asked pointed questions of both counsels but ultimately stated she would take time to consider the arguments before making her final ruling.

Licensing Moratorium Exception Update - Clarifications

The deadline for applying for an exception to the Corporate AFC/CRS licensing moratorium will expire on June 30, 2018 for those programs that have been operating without a license but should have a license. This means you need to have your application in by the end of the business day on June 30, 2018. These applications should be submitted to the county with the appropriate license application fee.

ARRM has received some clarification from Minnesota DHS Licensing on a couple of items:

• Homes of 1-2 people receiving 24 hour per day services in a setting not controlled by the service provider do not need to be licensed.
• Settings of 3 or more people receiving 24 hour per day services in a setting not controlled by the service provider probably need to be licensed. Providers should contact DHS Licensing with any questions.
• DHS Disability Services Division (DSD) and DHS Licensing Division is further clarifying the exception to the moratorium for people living in unlicensed settings that require a license in Stat. §245A.03, subd. 7(a)(7). 

DHS has determined that an exception to the moratorium is available:

If a person moved into the unlicensed setting after May 1, 2017, and

The setting (bed) was occupied any time between January 1, 2017 and May 1, 2017 by a person receiving 245D services, and

The person currently living in the setting (bed) meets the criteria in paragraphs (7)(i) and (7)(ii).

DHS has determined an exception to the moratorium is not available:

If the person occupying the capacity (bed) prior to May 1, 2017 was not receiving 245D services. 

If the capacity (bed) was not occupied at all between January 1, 2017 and May 1, 2017 by a person receiving 245D services. 

If the capacity (bed) is currently vacant.

DHS has advised that when you are completing your application for a license, request the number of beds that you want (not to exceed the number you have historically been using).

If you have questions you can contact Barb Turner bturner@arrm.org

Medical Marijuana: What you need to know

Recently an ARRM member raised a question regarding medical marijuana in an AFC/CRS program. This question has been raised in the past.  Although in this case the county involved felt the issue was only with dispensing the medical marijuana, the issue may include having the medical marijuana on site where federal funds are used to provide services.  Below is the information ARRM received most recently. The strongest piece of advice to ARRM members is to obtain legal advice when making decisions in this area.

Information from DHS Licensing

The Centers for Medicare and Medicaid Services (CMS) has said federal law prohibits federally certified providers from dispensing medical marijuana, because marijuana is classified as a Schedule One controlled substance and that classification renders the manufacture, distribution, or possession of marijuana a criminal offense. These providers may be at risk of federal action, such as losing federal reimbursement for allowing residents to use medical cannabis. The U.S. Department of Justice (DOJ) also issued a memo in August 2013 (the Cole memo) which states there is no guarantee, safe harbor, or immunity of any kind, and federal authorities have every authority to prosecute marijuana offenses. 

Whether federal authorities would actually pursue enforcement action against a provider when a state has authorized medical cannabis is unclear, so the actual risk to a provider is unclear. Regardless, in light of this position from CMS about federally certified providers, and the DOJ Cole memo, we believe the same analysis holds true for DHS-licensed providers receiving Medicaid waiver funds.

Seek legal advice

All DHS-licensed providers who receive Medicaid funding for services they provide are strongly encouraged to obtain legal advice about the impact of state law authorizing the use of medical cannabis by an individual on the provider’s federal funding and compliance with other federal laws that are obligated to follow. This information contained in this article is not legal advice, and should not be relied upon as legal advice. Readers are directed to consult with a lawyer of their own choosing for legal advice.

Licensing Moratorium Information

At this point, due to the veto of the HHS Omnibus bill, the licensing moratorium exception for programs that should have been licensed and were operating prior to May 1, 2017 will expire on June 30, 2018.

Providers who feel they may need to apply for a foster care or community residential setting (CRS) license under 245D should do the following:

If you are not sure if your program meets the criteria

• Contact the DHS licensing division at this number: 651-431-6624
• When speaking to the person, explain your situation as clearly as possible. You may receive an answer on the spot or you may be told that further research needs to be done on your specific situation.
• If further time is needed you should expect to hear back in 3 business days.
• Once you receive your answer you should do one of three things:
  • Send an email message to DHS to confirm the answer you have received at DHS.245DLicenseHelp@state.mn.us or,
  • Submit an application for a license to your county, or
  • Submit a request to DHS for reconsideration of their decision

Steps for application if your program meets the criteria:

• There will be an up to $500.00 fee for each license application, this is not refundable should you later decide not to continue with the process or to turn down the settings license
• Apply for the license even if all people currently being served do not meet the exception for the license moratorium - ask for the license capacity that you need. You may be approved for less than requested. We are working on how to address the issue of needing a license for more than allowed under the moratorium exception language.
• Applications must be submitted to the County by June 30, 2018. Counties have 120 days to process.
• If it is found that a program is operating without a settings license and it is determined that the setting should have one you will be open for corrective action which may include legal action against the provider.