PRIOR PRINTER'S NO. 1744 PRINTER'S NO. 2107
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, CORNELL AND CIVERA, APRIL 28, 2005
AS REPORTED FROM COMMITTEE ON AGING AND OLDER ADULT SERVICES,
HOUSE OF REPRESENTATIVES, AS AMENDED, JUNE 7, 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 HOME 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 AND MAINTAIN A CARE PLAN for each consumer and to comply <--
6 with responsibilities and duties as set forth in procedures
7 established by the Department of Aging.
8 "Care plan." A plan written by a care manager, developed at <--
9 the direction of IN COLLABORATION AND CONSULTATION WITH a <--
10 consumer, that addresses the consumer's needs and the services
11 necessary to address those needs.
12 "Consumer." An individual who:
13 (1) Is at least 60 years of age.
14 (2) Receives home-based HOME and community-based <--
15 services through the program WAIVER. <--
16 (3) Is assessed as nursing facility clinically eligible.
17 "Consumer representative." An individual designated by a
18 consumer to act on behalf of the consumer.
19 "Department." The Department of Aging of the Commonwealth.
20 "Employee." An individual who is employed by a provider PAID <--
21 BY A PROVIDER TO PROVIDE HOME AND COMMUNITY-BASED SERVICES TO A
22 CONSUMER. The term includes a contract employee who has direct
23 contact with a consumer or unsupervised access to the personal
24 living quarters of a consumer.
25 "Home-based HOME and community-based services." Services <--
26 provided in a person's home or at a location in the community to
27 assist consumers to function as independently as possible.
28 "NFCE." Nursing facility clinically eligible. <--
29 "NURSING FACILITY CLINICALLY ELIGIBLE" OR "NFCE." AN <--
30 INDIVIDUAL WHO REQUIRES HEALTH-RELATED CARE AND SERVICES BECAUSE
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1 THE INDIVIDUAL'S PHYSICAL CONDITION NECESSITATES CARE AND
2 SERVICES THAT CAN BE PROVIDED IN THE COMMUNITY WITH HOME AND
3 COMMUNITY-BASED SERVICES OR IN A NURSING FACILITY.
4 "Other individual." Any person who:
5 (1) Is not a consumer.
6 (2) Is at least 18 years of age.
7 (3) Resides in a home-based HOME and community-based <--
8 services setting maintained by a provider.
9 (4) Has direct contact with a consumer AND PROVIDES HOME <--
10 AND COMMUNITY-BASED SERVICES.
11 "Program." A Medicaid home-based and community-based <--
12 services waiver granted by the Centers for Medicaid and Medicare
13 Services to the Department of Public Welfare, under the
14 authority of section 1915(c) of the Social Security Act (49
15 Stat. 620, 42 U.S.C. § 301 et seq.).
16 "Provider." An individual who:
17 (1) Provides services to consumers through the program.
18 (2) Is enrolled or certified to provide such services.
19 (3) Receives public funds in exchange for those
20 services.
21 "PROVIDER." A MEDICAL ASSISTANCE CERTIFIED ENTITY <--
22 RESPONSIBLE FOR PAYROLL MANAGEMENT AND DISBURSEMENT ACTIVITIES.
23 THE TERM INCLUDES A PRIVATE PAYROLL COMPANY, AN AREA AGENCY ON
24 AGING, A MEDICAL ASSISTANCE SERVICES PROVIDER AND A DEPARTMENT
25 OF PUBLIC WELFARE ATTENDANT CARE PROVIDER CURRENTLY PROVIDING
26 THIS SERVICE TO DEPARTMENT OF PUBLIC WELFARE ATTENDANT CARE
27 WAIVER CONSUMERS.
28 "State police." The Pennsylvania State Police.
29 "WAIVER." A MEDICAID HOME AND COMMUNITY-BASED SERVICES <--
30 WAIVER GRANTED BY THE CENTERS FOR MEDICAID AND MEDICARE SERVICES
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1 TO THE DEPARTMENT OF PUBLIC WELFARE, UNDER THE AUTHORITY OF
2 SECTION 1915(C) OF THE SOCIAL SECURITY ACT (49 STAT. 620, 42
3 U.S.C. § 301 ET SEQ.).
4 Section 3. General duties of area agencies on aging.
5 An area agency on aging shall retain overall responsibility
6 to ensure that care management of consumers is competently
7 provided to consumers in accordance with department standards
8 and the care plan. The AAA shall coordinate supportive services
9 needed to promote and maintain consumer independence and shall
10 monitor consumers by using consumer contact plans developed and
11 administered through the AAA.
12 Section 4. Care plan home visits.
13 A care plan shall include provisions for a private, physical,
14 face-to-face home visit by the care manager with the consumer at
15 least monthly, ON AN UNANNOUNCED BASIS, without the presence of <--
16 the provider, an employee or other individual. The home visit <--
17 may also include a registered nurse whose responsibility shall
18 be to monitor the health of the consumer.
19 Section 5. Annual review of care plan.
20 In accordance with procedures established by the department
21 for home-based HOME and community-based services, an AAA shall <--
22 maintain on file a care plan for each consumer that is reviewed
23 and signed, at least annually, EVERY SIX MONTHS by the consumer <--
24 or the consumer representative, care manager, supervisor and a
25 registered nurse. The care manager shall determine the type and
26 frequency of contact with a consumer based upon the degree of
27 consumer impairment and the involvement needed to ensure the
28 effectiveness and stability of the care plan.
29 Section 6. Criminal background checks.
30 (a) Duty of providers.-- <--
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1 (1) Prior to providing services under a program, and
2 every five years thereafter, a provider shall, at its own
3 expense, obtain a report of criminal history record
4 information as required under subsection (b) for the
5 provider, any employee and any other individual. If a report
6 of criminal history record information is already on file at
7 the AAA for the provider, its employees and other
8 individuals, the provider shall only be responsible for
9 ensuring that such information is updated every five years
10 from the initial date of the report.
11 (2) A provider who provides services under a program on
12 the effective date of this section shall comply with this
13 section within one year.
14 (3) The provider shall submit the criminal history
15 record information to the care manager, and the AAA shall
16 retain the information for a period of five years in
17 accordance with department guidelines.
18 (b) Type of information.--The criminal history record
19 information required to be provided under subsection (a) shall
20 consist of the following information obtained within the
21 preceding one-year period:
22 (1) Pursuant to 18 Pa.C.S. Ch. 91 (relating to criminal
23 history record information), a report of criminal history
24 record information from the State Police or a statement from
25 the State Police that its central repository contains no such
26 information relating to that person. The criminal history
27 record information shall be limited to that which is
28 disseminated pursuant to 18 Pa.C.S. § 9121(b)(2) (relating to
29 general regulations).
30 (2) (i) Where the provider, employee or other
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1 individual is not or for the two years immediately
2 preceding the date of the report has not been a resident
3 of this Commonwealth, the provider, employee or other
4 individual shall obtain a report of Federal criminal
5 history record information pursuant to the Federal Bureau
6 of Investigation's appropriation under Title II of the
7 Departments of State, Justice and Commerce, the
8 Judiciary, and Related Agencies Appropriation Act, 1973
9 (Public Law 92-544; 86 Stat. 1307).
10 (ii) A provider, employee or other individual
11 subject to subparagraph (i) shall submit a full set of
12 fingerprints to the State Police, which shall forward
13 them to the Federal Bureau of Investigation for a
14 national criminal history record check.
15 (c) Fees.--
16 (1) The State Police may charge a provider, employee or
17 other individual a fee of not more than $10 to conduct the
18 criminal history record check required under subsection
19 (b)(1).
20 (2) The State Police may charge a fee of not more than
21 the established charge by the Federal Bureau of Investigation
22 for the criminal history record check required under
23 subsection (b)(2).
24 Section 7. Communicable disease screenings.
25 (a) Duty of providers.--
26 (1) Prior to providing services under a program, and
27 every five years thereafter, a provider shall, at its own
28 expense, obtain documentation as required under subsection
29 (b) for the provider, its employees and other individuals. If
30 documentation is already on file at the AAA for the provider,
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1 its employees or other individuals, the provider shall only
2 be responsible for ensuring that such documentation is
3 updated every five years from the initial date of the
4 documentation.
5 (2) A provider who provides services under a program on
6 the effective date of this section shall comply with this
7 section within one year.
8 (3) The provider shall submit the documentation required
9 under this section to the care manager, and the AAA shall
10 retain the documentation on file for a period of five years
11 in accordance with department guidelines.
12 (A) GENERAL RULE.--PRIOR TO PROVISION OF SERVICES UNDER A <--
13 WAIVER, A PROVIDER SHALL, AT ITS OWN EXPENSE, ENSURE THAT ANY
14 EMPLOYEE OR OTHER INDIVIDUAL MEETS THE REQUIREMENTS OF CHAPTER 5
15 OF THE ACT OF NOVEMBER 6, 1987 (P.L.381, NO.79), KNOWN AS THE
16 OLDER ADULTS PROTECTIVE SERVICES ACT, REGARDING CRIMINAL
17 HISTORY. FOR THE PURPOSES OF THIS SECTION, A PROVIDER SHALL BE
18 DEEMED A FACILITY IN ACCORDANCE WITH CHAPTER 5 OF THE OLDER
19 ADULTS PROTECTIVE SERVICES ACT.
20 (B) EMPLOYEES AND OTHER INDIVIDUALS.--
21 (1) FOR ANY EMPLOYEE OR OTHER INDIVIDUAL CONTINUING TO
22 PROVIDE WAIVER SERVICES, A PROVIDER SHALL ENSURE THAT SUCH
23 INFORMATION IS UPDATED EVERY FIVE YEARS FROM THE INITIAL DATE
24 OF THE REPORT.
25 (2) FOR ANY EMPLOYEE OR OTHER INDIVIDUAL WHO PROVIDES
26 SERVICES UNDER A WAIVER ON THE EFFECTIVE DATE OF THIS
27 SECTION, A PROVIDER SHALL COMPLY WITH THIS SECTION WITHIN ONE
28 YEAR.
29 SECTION 7. COMMUNICABLE DISEASE SCREENINGS.
30 (A) GENERAL RULE.--PRIOR TO PROVISION OF SERVICES UNDER A
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1 WAIVER, A PROVIDER SHALL, AT ITS OWN EXPENSE, OBTAIN
2 DOCUMENTATION AS REQUIRED UNDER SUBSECTION (C) FOR ANY EMPLOYEE
3 AND ANY OTHER INDIVIDUAL.
4 (B) EMPLOYEES AND OTHER INDIVIDUALS.--
5 (1) FOR ANY EMPLOYEE OR OTHER INDIVIDUAL CONTINUING TO
6 PROVIDE WAIVER SERVICES, A PROVIDER SHALL OBTAIN SUCH UPDATED
7 DOCUMENTATION EVERY FIVE YEARS FROM THE INITIAL RECEIPT OF
8 THE DOCUMENTATION.
9 (2) FOR ANY EMPLOYEE OR OTHER INDIVIDUAL WHO PROVIDES
10 SERVICES UNDER A WAIVER ON THE EFFECTIVE DATE OF THIS
11 SECTION, A PROVIDER SHALL COMPLY WITH THIS SECTION WITHIN ONE
12 YEAR.
13 (b) (C) Type of documentation.-- <--
14 (1) Documentation required under this section shall be
15 obtained from a physician or other appropriate health care
16 professional and shall state that the provider, its employees <--
17 and other individuals are free from communicable disease and
18 have passed a tuberculosis screening as outlined by screening
19 guidelines of the Department of Health.
20 (2) The provider, its employees EMPLOYEES and other <--
21 individuals shall comply with Federal, State and local health
22 requirements related to communicable disease and follow
23 procedures recommended in the Centers for Disease Control
24 Guidelines and regulations of the Occupational Safety and
25 Health Administration, including provisions of protective
26 articles and in-service training on universal precautions.
27 Section 8. Recordkeeping.
28 (a) General rule.--Each AAA PROVIDER shall maintain on file <--
29 documentation of compliance with the provisions of sections 6
30 (relating to criminal background checks) and 7 (relating to <--
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1 communicable disease screenings) along with the care plan of the
2 consumer who receives services from the provider. The care
3 manager shall review the documentation with a consumer prior to
4 receiving services under a program.
5 (b) Right to accept or refuse.--A consumer shall have the
6 right to accept or refuse services from a provider based upon
7 the applicable documentation. A consumer who refuses services
8 shall not be prohibited from participation in a program.
9 (c) Confidentiality.--Except as provided in subsection (a),
10 documentation of compliance maintained on file with the AAA
11 shall not be subject to access under the act of June 21, 1957
12 (P.L.390, No.212), referred to as the Right-to-Know Law.
13 (d) Civil immunity.--A care manager who reviews
14 documentation of compliance as provided in subsection (a) is
15 presumed to be acting in good faith and, unless lack of good
16 faith is demonstrated by clear and convincing evidence, shall be
17 immune from civil liability for such review and its consequences
18 in any case brought by the provider, employee, other individual
19 or consumer.
20 Section 9. Financial interest prohibition.
21 No provider, employee or other individual shall: FOR A <--
22 CONSUMER WHO RECEIVES SERVICES FROM AN EMPLOYEE OR OTHER
23 INDIVIDUAL.
24 (B) CONFIDENTIALITY.--DOCUMENTATION OF COMPLIANCE MAINTAINED
25 ON FILE WITH A PROVIDER SHALL NOT BE SUBJECT TO ACCESS UNDER THE
26 ACT OF JUNE 21, 1957 (P.L.390, NO.212), REFERRED TO AS THE
27 RIGHT-TO-KNOW LAW.
28 SECTION 9. FINANCIAL INTEREST PROHIBITION.
29 (A) GENERAL RULE.--NO EMPLOYEE OR OTHER INDIVIDUAL SHALL:
30 (1) Be appointed or act as guardian of a consumer.
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1 (2) Engage in any activity under a power of attorney of
2 a consumer.
3 (3) Be a beneficiary of any insurance policy or annuity
4 of a consumer.
5 (4) Serve as an executor of an estate of a consumer.
6 (B) DUTY TO INFORM CONSUMERS.--A CARE MANAGER SHALL INFORM <--
7 EACH CONSUMER OF THE PROVISIONS OF SUBSECTION (A).
8 Section 10. Consumer telephone access.
9 A provider shall ensure that a consumer has private, free and <--
10 unsupervised access to local telephone service. The telephone
11 number of the local AAA shall be prominently displayed next to
12 the telephone.
13 NO EMPLOYEE OR OTHER INDIVIDUAL SHALL RESTRICT OR PREVENT A <--
14 CONSUMER'S ACCESS TO LOCAL TELEPHONE SERVICE.
15 Section 11. Applicability.
16 The provisions of this act shall not apply:
17 (1) where the provider or any employee or other <--
18 individual of a provider is a family member of the consumer;
19 (1) TO ANY EMPLOYEE OR OTHER INDIVIDUAL WHO IS A FAMILY <--
20 MEMBER OF A CONSUMER TO WHOM THE EMPLOYEE OR INDIVIDUAL
21 PROVIDES SERVICES; or
22 (2) to a private contractual situation between persons
23 where public funding is not involved.
24 Section 12. Procedures for noncompliance; promulgation of
25 regulations.
26 The department shall cooperate with the Department of Public
27 Welfare to:
28 (1) Develop procedures, no later than 90 days after the
29 effective date of this section, to be followed in the event
30 of noncompliance with the provisions of this act.
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1 (2) Promulgate regulations within one year after the
2 effective date of this section to administer this act.
3 Section 13. Effective date.
4 This act shall take effect in 60 days.
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