Minnesota Legislative Session Ends with Unfinished Business

Posted on May 19, 2021 by Kari Thurlow

The Minnesota Legislature has adjourned the 2021 regular session, hours before the constitutionally required midnight adjournment, without passing a biennial budget. Lawmakers will need a special session to finish the job. For senior care providers, there are several key priorities left unresolved at this time. We are hopeful that legislators will address these in the special session.

While Governor Tim Walz, Speaker of the House Melissa Hortman (DFL-Brooklyn Park) and Senate Majority Leader Paul Gazelka (R-East Gull Lake) announced on Monday they had reached an agreement on global budget targets—the framework necessary to finalize budget bills—the news came with an announcement that the work to complete the budget and resolve policy issues would have to be done in a June special session. Thanks to an influx of federal pandemic relief funds coming to Minnesota, the budget agreement includes increased spending and no tax increases. While lawmakers earmarked some of the American Rescue Plan money for a COVID-19 Flexible Fund to cover investments in summer learning, state government operating deficiency and remote work and continued operations for the Minnesota Zoo, lawmakers seemed to largely defer much of the decision making about how to spend the American Rescue Plan dollars flowing to Minnesota, setting aside $1.23 billion for the 2022 Legislative Session.

Unfortunately, the global agreement does not include a proposal to provide Hero Pay bonuses for senior care workers. The Long-Term Care Imperative issued a statement expressing deep disappointment in the governor and legislative leaders for failing to earmark some of the federal funding that Minnesota has received for this proposal. We remain optimistic that Hero Pay can be included in final budget bills passed in the special session and urge lawmakers to ensure this is a priority. 

Now it will be up to House and Senate budget chairs to hammer out the details and craft bills that can be passed in a special session, likely around June 14. Leadership has given committee chairs until May 28 to finalize their spreadsheets and until June 4 to agree on policy language. While the governor and legislative leaders struck an optimistic tone that work would be completed in a short special session, it is possible that this special session could stretch over several days to weeks. Lawmakers have until June 30 to pass a balanced budget to avoid a state government shutdown.

No specifics have been announced about the process for putting together the details of the budget bills. However, it appears that there will be informal working groups appointed that will function like a conference committee. It is not clear whether the meetings of these working groups will be in public or behind closed doors. A public process is not required because lawmakers won't be in session while conducting this work. The budget agreement between Gov. Walz and House and Senate leaders does not ensure approval of any omnibus bills developed by the budget working groups. This could be a sign of trouble ahead, as legislative leaders may not be able to deliver the votes to pass final bills if their caucuses disapprove of the details in the budget bills.

Legislature Acts to Address Outdoor Space Issues Before Adjourning
Both legislative bodies acted swiftly to pass a slimmed-down health and human services policy bill that included a provision that addresses a significant flaw in the assisted living licensure statute related to the outdoor space requirement for assisted living with dementia care providers. The current assisted living licensure statute required assisted living with dementia care providers to provide access to secured outdoor space and walkways that allow residents to enter and return without staff assistance. This language was problematic because many existing providers seeking to convert to licensure could not meet this requirement without significant building redesign.

The bill passed on Monday addressed this concern by modifying the requirement to ensure that residents that regular access to outdoor space per the resident's care plan. The following is the new statutory language that takes effect on Aug. 1: "Existing housing with services establishments registered under chapter 144D prior to Aug. 1, that obtain an assisted living facility license must provide residents with regular access to outdoor space. A licensee with new construction on or after Aug. 1, or a new licensee that was not previously registered under chapter 144D prior to Aug. 1, must provide regular access to secured outdoor space on the premises of the facility. A resident's access to outdoor space must be in accordance with the resident's documented care plan."

We expect Governor Walz to sign this bill into law in the coming days. This language now clears the way for existing providers to apply by the June 1 application deadline.

Significant Senior Care Issues Remain
In addition to our ongoing work to support Hero Pay, we will continue to work with lawmakers on several policy and budget issues, including the following:

Background studies and fingerprints: During the pandemic, the Minnesota Department of Human Services (DHS) has temporarily suspended the fingerprint requirement for background checks. Over 137,000 individuals have been hired under emergency background checks. Under current law, employers will have 60 days following the expiration of this waiver to bring these employees into compliance with the fingerprint requirement. This is insufficient time to process this amount of background studies, which may disqualify large numbers of existing employees who have only had an emergency study. Moreover, the state is transitioning to a new fingerprinting vendor on Aug. 1, and we have concerns that this transition will impact access to fingerprinting locations. We have asked lawmakers to amend current law to allow for a 365-day extension of emergency-based studies to provide a longer runway for the Department to clear the backlog and ensure that there are limited barriers for potential new staff entering our field.

Nursing Assistants (Allowing for Basic Care Aide Training): In alignment with a federal waiver by US Centers for Medicare and Medicaid, the Minnesota Department of Health adopted a regulatory waiver that allowed employers to supplement staff by employing individuals who had not completed state-approved Nursing Assistant Training Curriculum and staff who have not completed the nursing assistant training state exam. Currently, over 1200 individuals are working in this capacity. We have asked lawmakers to act to make this waiver permanent.

Paid Feeding Assistants: During COVID-19, training for paid feeding assistants has gone from an 8-hour requirement to a minimum of one hour. All other original language remains intact. Experience has shown that the pre-pandemic requirement of 8 hours of training is longer than it needs to be. We have asked lawmakers to align the state language to match the federal exception language, which provides greater flexibility and would allow this successful pandemic practice to continue.

Alternative Adult Day Services: COVID-19 closures and restrictions have severely impacted adult day services programs. The State took action to allow remote delivery of adult day services and the resumption of some in-person adult day services. Given the lifeline that adult day services programs provide not just for the elders who participate but for the families who support them and help them remain in the community, this alternative approach to services has helped these individuals avoid nursing home placement and supported informal caregiving. Unfortunately, this waiver expires on June 30 under current Minnesota Session law. We have asked to extend this waiver another year until June 30, 2022.

Nursing Home Moratorium Exception Funding: We learned many lessons during the pandemic, including the need to update the aging infrastructure of our care centers. The Senate had included an ongoing appropriation of $5 million per year to the moratorium exceptions fund. The House has not included this proposal. We are urging lawmakers to include the funding in its final budget bill.

Elderly Waiver Increases: While neither the House nor the Senate included the across-the-board rate to the Elderly Waiver program, the Senate included several proposals for targeted increases. We support these proposals and have urged lawmakers to include these concepts in the final budget bill.

PACE (Program for All Inclusive Care for the Elderly): The Senate had included a small appropriation to conduct an actuarial study to inform the development of a rate structure for PACE. We are supportive of this language to determine the viability of the PACE model in Minnesota.

As always, stay tuned for additional information as these negotiations continue to unfold over the next several days and weeks.