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Position Statement on the Provision of 24-Hour Services
to Persons with Developmental Disabilities

ISSUE:

For many years, Minnesota law prohibited 24-hour control over an individual with disabilities by one entity as a matter of public policy. The basis for this policy position was the assumption that neglect or abuse of individuals with disabilities may occur in an environment where there is no oversight by unrelated individuals or entities other than the entity providing care. This potential for neglect or abuse can exist whenever one entity has 24-hour control over an individual with disabilities.

Despite this history, Minnesota policy on 24-hour control was changed in 2003 by new provisions which allow persons to receive “services during the day” from their residential provider (Minn. Statutes 265B.501 Subd. 3m and 256B.092 Subd 5b.) The issue of 24-hour control was also affected by the adoption in 2003 of the new Community Services Act (CSA) found in Minn. Statutes §256M.01-.90. The new CSA requires DT&H services be provided only to an individual whose individual service plan (ISP) states the need for a day program (Minn. Statutes §256M.60, Subd. 2.) There is no longer a explicit legislative mandate for day services.

Now, services don’t have to be provided by the county if their funding is limited, unless one of seven criteria is met. Of these seven criteria, the highest priority is given, first, to services needed to protect individuals from maltreatment, abuse and neglect; second, to emergency and crisis services needed to protect clients from physical, emotional or psychological harm; and third, to services that maintain a person in the person’s home or least restrictive setting. For persons living in Intermediate Care Facilities for Mental Retardation and Waivered services group homes, the new CSA retains the expectation that persons will leave their residences during the day for services unless the ISP specifically states otherwise. For these individuals, existing law still requires that when there has been a determination of need for DT&H services, the county must authorize and provide for them. The CSA also provides protections for persons who choose to receive residential and day services from the same provider.

Before choosing 24-hour care from just one entity, an individual must be offered a choice of providers and their choice must be in writing. Their plan must describe how their health, safety, protection, and habilitation needs will be met by the one provider and how regular and frequent contact with persons other than the residential services provider will occur. In addition, Minnesota Rule 9525.1580 also affects the issue of 24-hour control. While maintaining the general principle that training and habilitation services and licensed residential services must not be provided by related legal entities, this rule allows exceptions in three cases:

• When the residential and day habilitation services are directly administered by a county board or by the commissioner at a regional center.
• When residential and day habilitation services are offered by a training and habilitation services provider licensed before April 18, 1983.
• When services are provided to a person who resides at home with his family or a foster family and who is receiving a combination of day habilitation and residential based habilitation services.

POSITION:

It is the position of The Arc of Minnesota that:

• Ensuring the quality of care and protecting the safety of individuals with disabilities can best be accomplished by limiting 24-hour control of an individual by government and other service providers. The quality of life for individuals with disabilities is enhanced by having multiple individuals or entities involved in the life of the individual.
• Consumer preferences and needs should be the guiding principles in determining the type and location of day activities for individuals with disabilities. Non-traditional day services should be encouraged as long as the individual’s health and safety are protected and their needs are met.
• The individual must be fully informed and have a meaningful choice of alternatives before consenting to 24-hour control by a single entity or service provider.
• Individuals under public guardianship do not have an independent guardian to provide informed consent to 24-hour placement in government-operated services. Therefore, individuals under public guardianship living in government-operated residential programs must receive day services based on the consumer’s needs and preferences from a separate provider regardless of where the day services are provided.
• It is preferable that the individual leave their residential site for day services of their choice unless documented medical conditions preclude it, the individual has chosen a single entity to provide 24-hour care, the individual has chosen to have a DT&H provider provide services in their own home or residence, the individual has made an informed choice not to participate in day services or if the individual is retired from work.
• The county must ensure an appropriate funding level for adequate day services chosen by the individual which meet their needs as stated in their individual service plan. The CSA should be amended to require the county to fund day services unless it can show a compelling reason, other than the availability of CSA funds, to deny the provision of these services.

Approved by delegate body at The Arc of Minnesota Annual Meeting on November 12, 2005.

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This page last updated December 2005.