PRINTER'S NO. 1744
No. 1446 Session of 2005
INTRODUCED BY GINGRICH, HESS, BOYD, CALTAGIRONE, CAPPELLI,
CRAHALLA, CURRY, GILLESPIE, GOOD, HARHART, HENNESSEY, HERMAN,
HERSHEY, NAILOR, PICKETT, PYLE, RAPP, E. Z. TAYLOR, THOMAS,
WATSON, YOUNGBLOOD, M. KELLER, KENNEY, REICHLEY, MARSICO,
PISTELLA AND CORNELL, APRIL 28, 2005
REFERRED TO COMMITTEE ON AGING AND OLDER ADULT SERVICES,
APRIL 28, 2005
AN ACT
1 Providing for the powers and duties of the Department of Aging
2 and area agencies on aging and for annual review of care
3 plans; requiring criminal background checks and communicable
4 disease screenings of certain providers; prohibiting certain
5 provider financial interests; providing for consumer
6 telephone access; and providing for procedures for
7 noncompliance.
8 The General Assembly of the Commonwealth of Pennsylvania
9 hereby enacts as follows:
10 Section 1. Short title.
11 This act shall be known and may be cited as the Home-Based
12 and Community-Based Services Accountability Act.
13 Section 2. Definitions.
14 The following words and phrases when used in this act shall
15 have the meanings given to them in this section unless the
16 context clearly indicates otherwise:
17 "Area agency on aging" or "AAA." The single local agency
18 designated by the Department of Aging within each planning and
1 service area to administer the delivery of a comprehensive and
2 coordinated plan of social and other services and activities.
3 "Care manager." A staff member at a local area agency on
4 aging who is assigned to write care plans, to maintain a case
5 file for each consumer and to comply with responsibilities and
6 duties as set forth in procedures established by the Department
7 of Aging.
8 "Care plan." A plan written by a care manager, developed at
9 the direction of a consumer, that addresses the consumer's needs
10 and the services necessary to address those needs.
11 "Consumer." An individual who:
12 (1) Is at least 60 years of age.
13 (2) Receives home-based and community-based services
14 through the program.
15 (3) Is assessed as nursing facility clinically eligible.
16 "Consumer representative." An individual designated by a
17 consumer to act on behalf of the consumer.
18 "Department." The Department of Aging of the Commonwealth.
19 "Employee." An individual who is employed by a provider. The
20 term includes a contract employee who has direct contact with a
21 consumer or unsupervised access to the personal living quarters
22 of a consumer.
23 "Home-based and community-based services." Services provided
24 in a person's home or at a location in the community to assist
25 consumers to function as independently as possible.
26 "NFCE." Nursing facility clinically eligible.
27 "Other individual." Any person who:
28 (1) Is not a consumer.
29 (2) Is at least 18 years of age.
30 (3) Resides in a home-based and community-based services
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1 setting maintained by a provider.
2 (4) Has direct contact with a consumer.
3 "Program." A Medicaid home-based and community-based
4 services waiver granted by the Centers for Medicaid and Medicare
5 Services to the Department of Public Welfare, under the
6 authority of section 1915(c) of the Social Security Act (49
7 Stat. 620, 42 U.S.C. § 301 et seq.).
8 "Provider." An individual who:
9 (1) Provides services to consumers through the program.
10 (2) Is enrolled or certified to provide such services.
11 (3) Receives public funds in exchange for those
12 services.
13 "State police." The Pennsylvania State Police.
14 Section 3. General duties of area agencies on aging.
15 An area agency on aging shall retain overall responsibility
16 to ensure that care management of consumers is competently
17 provided to consumers in accordance with department standards
18 and the care plan. The AAA shall coordinate supportive services
19 needed to promote and maintain consumer independence and shall
20 monitor consumers by using consumer contact plans developed and
21 administered through the AAA.
22 Section 4. Care plan home visits.
23 A care plan shall include provisions for a private, physical,
24 face-to-face home visit by the care manager with the consumer at
25 least monthly, without the presence of the provider, an employee
26 or other individual. The home visit may also include a
27 registered nurse whose responsibility shall be to monitor the
28 health of the consumer.
29 Section 5. Annual review of care plan.
30 In accordance with procedures established by the department
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1 for home-based and community-based services, an AAA shall
2 maintain on file a care plan for each consumer that is reviewed
3 and signed, at least annually, by the consumer or the consumer
4 representative, care manager, supervisor and a registered nurse.
5 The care manager shall determine the type and frequency of
6 contact with a consumer based upon the degree of consumer
7 impairment and the involvement needed to ensure the
8 effectiveness and stability of the care plan.
9 Section 6. Criminal background checks.
10 (a) Duty of providers.--
11 (1) Prior to providing services under a program, and
12 every five years thereafter, a provider shall, at its own
13 expense, obtain a report of criminal history record
14 information as required under subsection (b) for the
15 provider, any employee and any other individual. If a report
16 of criminal history record information is already on file at
17 the AAA for the provider, its employees and other
18 individuals, the provider shall only be responsible for
19 ensuring that such information is updated every five years
20 from the initial date of the report.
21 (2) A provider who provides services under a program on
22 the effective date of this section shall comply with this
23 section within one year.
24 (3) The provider shall submit the criminal history
25 record information to the care manager, and the AAA shall
26 retain the information for a period of five years in
27 accordance with department guidelines.
28 (b) Type of information.--The criminal history record
29 information required to be provided under subsection (a) shall
30 consist of the following information obtained within the
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1 preceding one-year period:
2 (1) Pursuant to 18 Pa.C.S. Ch. 91 (relating to criminal
3 history record information), a report of criminal history
4 record information from the State Police or a statement from
5 the State Police that its central repository contains no such
6 information relating to that person. The criminal history
7 record information shall be limited to that which is
8 disseminated pursuant to 18 Pa.C.S. § 9121(b)(2) (relating to
9 general regulations).
10 (2) (i) Where the provider, employee or other
11 individual is not or for the two years immediately
12 preceding the date of the report has not been a resident
13 of this Commonwealth, the provider, employee or other
14 individual shall obtain a report of Federal criminal
15 history record information pursuant to the Federal Bureau
16 of Investigation's appropriation under Title II of the
17 Departments of State, Justice and Commerce, the
18 Judiciary, and Related Agencies Appropriation Act, 1973
19 (Public Law 92-544; 86 Stat. 1307).
20 (ii) A provider, employee or other individual
21 subject to subparagraph (i) shall submit a full set of
22 fingerprints to the State Police, which shall forward
23 them to the Federal Bureau of Investigation for a
24 national criminal history record check.
25 (c) Fees.--
26 (1) The State Police may charge a provider, employee or
27 other individual a fee of not more than $10 to conduct the
28 criminal history record check required under subsection
29 (b)(1).
30 (2) The State Police may charge a fee of not more than
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1 the established charge by the Federal Bureau of Investigation
2 for the criminal history record check required under
3 subsection (b)(2).
4 Section 7. Communicable disease screenings.
5 (a) Duty of providers.--
6 (1) Prior to providing services under a program, and
7 every five years thereafter, a provider shall, at its own
8 expense, obtain documentation as required under subsection
9 (b) for the provider, its employees and other individuals. If
10 documentation is already on file at the AAA for the provider,
11 its employees or other individuals, the provider shall only
12 be responsible for ensuring that such documentation is
13 updated every five years from the initial date of the
14 documentation.
15 (2) A provider who provides services under a program on
16 the effective date of this section shall comply with this
17 section within one year.
18 (3) The provider shall submit the documentation required
19 under this section to the care manager, and the AAA shall
20 retain the documentation on file for a period of five years
21 in accordance with department guidelines.
22 (b) Type of documentation.--
23 (1) Documentation required under this section shall be
24 obtained from a physician or other appropriate health care
25 professional and shall state that the provider, its employees
26 and other individuals are free from communicable disease and
27 have passed a tuberculosis screening as outlined by screening
28 guidelines of the Department of Health.
29 (2) The provider, its employees and other individuals
30 shall comply with Federal, State and local health
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1 requirements related to communicable disease and follow
2 procedures recommended in the Centers for Disease Control
3 Guidelines and regulations of the Occupational Safety and
4 Health Administration, including provisions of protective
5 articles and in-service training on universal precautions.
6 Section 8. Recordkeeping.
7 (a) General rule.--Each AAA shall maintain on file
8 documentation of compliance with the provisions of sections 6
9 (relating to criminal background checks) and 7 (relating to
10 communicable disease screenings) along with the care plan of the
11 consumer who receives services from the provider. The care
12 manager shall review the documentation with a consumer prior to
13 receiving services under a program.
14 (b) Right to accept or refuse.--A consumer shall have the
15 right to accept or refuse services from a provider based upon
16 the applicable documentation. A consumer who refuses services
17 shall not be prohibited from participation in a program.
18 (c) Confidentiality.--Except as provided in subsection (a),
19 documentation of compliance maintained on file with the AAA
20 shall not be subject to access under the act of June 21, 1957
21 (P.L.390, No.212), referred to as the Right-to-Know Law.
22 (d) Civil immunity.--A care manager who reviews
23 documentation of compliance as provided in subsection (a) is
24 presumed to be acting in good faith and, unless lack of good
25 faith is demonstrated by clear and convincing evidence, shall be
26 immune from civil liability for such review and its consequences
27 in any case brought by the provider, employee, other individual
28 or consumer.
29 Section 9. Financial interest prohibition.
30 No provider, employee or other individual shall:
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1 (1) Be appointed or act as guardian of a consumer.
2 (2) Engage in any activity under a power of attorney of
3 a consumer.
4 (3) Be a beneficiary of any insurance policy or annuity
5 of a consumer.
6 (4) Serve as an executor of an estate of a consumer.
7 Section 10. Consumer telephone access.
8 A provider shall ensure that a consumer has private, free and
9 unsupervised access to local telephone service. The telephone
10 number of the local AAA shall be prominently displayed next to
11 the telephone.
12 Section 11. Applicability.
13 The provisions of this act shall not apply:
14 (1) where the provider or any employee or other
15 individual of a provider is a family member of the consumer;
16 or
17 (2) to a private contractual situation between persons
18 where public funding is not involved.
19 Section 12. Procedures for noncompliance; promulgation of
20 regulations.
21 The department shall cooperate with the Department of Public
22 Welfare to:
23 (1) Develop procedures, no later than 90 days after the
24 effective date of this section, to be followed in the event
25 of noncompliance with the provisions of this act.
26 (2) Promulgate regulations within one year after the
27 effective date of this section to administer this act.
28 Section 13. Effective date.
29 This act shall take effect in 60 days.
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