Minnesota Administrative Rules

4668.0008 SERVICES INCLUDED IN AND EXCLUDED FROM LICENSURE.

Subpart 1.

Purpose.

This part implements Minnesota Statutes, section 144A.43, and establishes a process for determining what businesses are subject to licensure under this chapter. This part must be read together with Minnesota Statutes, section 144A.43. A business that is not required to be licensed under this chapter may obtain a license for the purpose of excluding individual contractors under subpart 6 or for other lawful purposes.

Subp. 2.

Determination of direct services.

As defined in Minnesota Statutes, section 144A.43, subdivision 4, a home care provider is a business that provides at least one home care service directly. A service that is provided directly means a service provided to a client by the provider or employees of the provider, and not by contract with an independent contractor. The administration of a contract for home care services is not in itself a direct service. Factors that shall be considered in determining whether a business provides home care services directly include whether the business:

A.

has the right to control and does control the types of services provided;

B.

has the right to control and does control when and how the services are provided;

C.

establishes the charges;

D.

collects fees from the clients or receives payment from third party payers on the clients' behalf;

E.

pays compensation on an hourly, weekly, or similar time basis;

F.

treats the individuals as employees for purposes of payroll taxes and workers' compensation insurance; and

G.

holds itself out as a provider of services or acts in a manner that leads clients or potential clients reasonably to believe that it is a provider of services.

None of the factors listed in items A to G is solely determinative.

Subp. 3.

Contract services.

If a licensee contracts for a home care service with a business that is not subject to licensure under this chapter, it must require, in the contract, that the business comply with this chapter and Minnesota Statutes, sections 144A.43 to 144A.47.

Subp. 4.

Coordination of providers of home care services.

The coordination of home care services is not itself a home care service. Coordination of home care services means one or more of the following in items A to C.

A.

Determination whether a client needs home care services, what services are needed, and whether existing services need to continue or be modified.

B.

Referral of clients to home care providers.

C.

Administration of payments for home care services.

Subp. 5.

Determination of regularly engaged.

As used in Minnesota Statutes, section 144A.43, subdivision 4, "regularly engaged" means providing, or offering to provide, home care services as a regular part of a provider's business. The following factors shall be considered by the commissioner in determining whether a person is regularly engaged in providing home care services:

A.

whether the person markets services specifically to individuals whose illnesses, disabilities, or physical conditions create needs for the services;

B.

whether the services are designed and intended specifically to assist the individuals;

C.

whether the individuals constitute a substantial part of the person's clientele; and

D.

whether the home care services are other than occasional or incidental to the provision of services that are not home care services.

None of the factors listed in items A to D is solely determinative.

Subp. 6.

Exclusion for a paraprofessional not regularly engaged in delivering home care services.

For purposes of subpart 5, an individual who performs home care aide tasks or home management tasks for no more than 14 hours each calendar week to no more than one client, is not regularly engaged in the delivery of home care services, and is not subject to licensure under this chapter.

Subp. 7.

Exclusion of individual contractors.

An individual who is not an employee of a licensed provider need not be licensed under this chapter, if the person:

A.

only provides services as an independent contractor with one or more licensed providers;

B.

provides no services under direct agreements with clients; and

C.

is contractually bound to perform services in compliance with the contracting providers' policies and service agreements.

Individuals excluded from licensure under this subpart must comply with the same requirements of this chapter as employees of the contracting licensee.

Subp. 8.

Governmental providers.

Except as otherwise provided in this chapter or in law, home care services that are provided by the state, counties, or other units of government must be licensed under this chapter.

Subp. 9.

Exclusion of certain instructional and incidental services.

A business is not subject to Minnesota Statutes, sections 144A.43 to 144A.47, and is not required to be licensed under this chapter if the business only provides services that are primarily instructional and not medical services or health-related support services.

Subp. 10.

Temporary staffing agencies.

A business that provides staff to home care providers, such as temporary employment agencies, is not required to be licensed under this chapter if the business:

A.

only provides staff under contract to licensed or exempt providers;

B.

provides no services under direct agreements with clients; and

C.

is contractually bound to perform services under the contracting providers' direction and supervision.

Subp. 11.

Status of temporary staff.

For purposes of this chapter, staff of businesses excluded from licensure under subpart 10 shall be treated as if they are employees of the contracting licensee.

Subp. 12.

Medical equipment provider.

A provider of medical supplies and equipment is subject to this chapter only if:

A.

the provider provides a home care service;

B.

the provider makes more than one visit to a client's residence to provide the home care service; and

C.

the supplies or equipment are ordered by a physician, osteopath, dentist, podiatrist, chiropractor, or other prescriber.

In this subpart, home care service does not include maintenance of supplies or equipment or instruction in their use.

Statutory Authority:

MS s 144A.45; 144A.46; 144A.47; 144A.48; 144A.752

History:

17 SR 2454; 24 SR 141; 28 SR 1639

Published Electronically:

October 2, 2013