PRIOR PRINTER'S NOS. 1744, 2107 PRINTER'S NO. 2337
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, CIVERA, PAYNE AND MELIO, APRIL 28, 2005
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES,
JUNE 27, 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 and
12 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 and maintain a care plan for each
5 consumer and to comply with responsibilities and duties as set
6 forth in procedures established by the Department of Aging.
7 "Care plan." A plan written by a care manager, developed in
8 collaboration and consultation with a consumer, that addresses
9 the consumer's needs and the services necessary to address those
10 needs.
11 "Consumer." An individual who:
12 (1) Is at least 60 years of age.
13 (2) Receives home and community-based services through
14 the waiver.
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 paid by a provider to
20 provide home and community-based services to a consumer. The
21 term includes a contract employee who has direct contact with a
22 consumer or unsupervised access to the personal living quarters
23 of a consumer.
24 "Home and community-based services." Services provided in a
25 person's home or at a location in the community to assist
26 consumers to function as independently as possible.
27 "Nursing facility clinically eligible" or "NFCE." An
28 individual who requires health-related care and services because
29 the individual's physical condition necessitates care and
30 services that can be provided in the community with home and
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1 community-based services or in a nursing facility.
2 "Other individual." Any person who:
3 (1) Is not a consumer.
4 (2) Is at least 18 years of age.
5 (3) Resides in a home and community-based services <--
6 setting maintained by a provider.
7 (4) (3) Has direct contact with a consumer and provides <--
8 home and community-based services, ON BEHALF OF AN EMPLOYEE. <--
9 "Provider." A medical assistance certified entity
10 responsible for payroll management and disbursement activities.
11 The term includes a private payroll company, an area agency on
12 aging, a medical assistance services provider and a Department
13 of Public Welfare attendant care provider currently providing
14 this service to Department of Public Welfare attendant care
15 waiver consumers.
16 "State police." The Pennsylvania State Police.
17 "Waiver." A Medicaid home and community-based services
18 waiver granted by the Centers for Medicaid and Medicare Services
19 to the Department of Public Welfare, under the authority of
20 section 1915(c) of the Social Security Act (49 Stat. 620, 42
21 U.S.C. § 301 et seq.).
22 Section 3. General duties of area agencies on aging.
23 An area agency on aging shall retain overall responsibility
24 to ensure that care management of consumers is competently
25 provided to consumers in accordance with department standards
26 and the care plan. The AAA shall coordinate supportive services
27 needed to promote and maintain consumer independence and shall
28 monitor consumers by using consumer contact plans developed and
29 administered through the AAA.
30 Section 4. Care plan home visits.
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1 A care plan shall include provisions for a private, physical,
2 face-to-face home visit by the care manager with the consumer at
3 least monthly, on an unannounced basis, without the presence of <--
4 an employee or other individual. AT LEAST ONE HOME VISIT PER <--
5 YEAR SHALL BE CONDUCTED ON AN UNANNOUNCED BASIS. The home visit
6 may also include a registered nurse whose responsibility shall
7 be to monitor the health of the consumer.
8 Section 5. Annual review of care plan.
9 In accordance with procedures established by the department
10 for home and community-based services, an AAA shall maintain on
11 file a care plan for each consumer that is reviewed and signed
12 every six months by the consumer or the consumer representative,
13 care manager, supervisor and a registered nurse. The care
14 manager shall determine the type and frequency of contact with a
15 consumer based upon the degree of consumer impairment and the
16 involvement needed to ensure the effectiveness and stability of
17 the care plan.
18 Section 6. Criminal background checks.
19 (a) General rule.--Prior to provision of services under a
20 waiver, a provider shall, at its own expense, ensure that any
21 employee or other individual meets the requirements of Chapter 5
22 of the act of November 6, 1987 (P.L.381, No.79), known as the
23 Older Adults Protective Services Act, regarding criminal
24 history. For the purposes of this section, a provider shall be
25 deemed a facility in accordance with Chapter 5 of the Older
26 Adults Protective Services Act.
27 (b) Employees and other individuals.--
28 (1) For any employee or other individual continuing to
29 provide waiver services, a provider shall ensure that such <--
30 information is updated COMPLY WITH SUBSECTION (A) every five <--
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1 years from the initial date of the report.
2 (2) For any employee or other individual who provides
3 services under a waiver on the effective date of this
4 section, a provider shall comply with this section SUBSECTION <--
5 (A) within one year.
6 Section 7. Communicable disease screenings.
7 (a) General rule.--Prior to provision of services under a
8 waiver, a provider shall, at its own expense, obtain
9 documentation as required under subsection (c) for any employee
10 and any other individual.
11 (b) Employees and other individuals.--
12 (1) For any employee or other individual continuing to
13 provide waiver services, a provider shall obtain such updated <--
14 documentation COMPLY WITH SUBSECTION (A) every five years <--
15 from the initial receipt of the documentation.
16 (2) For any employee or other individual who provides
17 services under a waiver on the effective date of this
18 section, a provider shall comply with this section SUBSECTION <--
19 (A) within one year.
20 (c) Type of documentation.--
21 (1) Documentation required under this section shall be
22 obtained from a physician or other appropriate health care
23 professional and shall state that the employees and other
24 individuals are free from communicable disease and have
25 passed a tuberculosis screening as outlined by screening
26 guidelines of the Department of Health.
27 (2) Employees and other individuals shall comply with
28 Federal, State and local health requirements related to
29 communicable disease and follow procedures recommended in the
30 Centers for Disease Control Guidelines and regulations of the
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1 Occupational Safety and Health Administration, including
2 provisions of protective articles and in-service training on
3 universal precautions.
4 Section 8. Recordkeeping.
5 (a) General rule.--Each provider shall maintain on file
6 documentation of compliance with the provisions of sections 6
7 and 7. for a consumer who receives services from an employee or <--
8 other individual.
9 (b) Confidentiality.--Documentation of compliance maintained
10 on file with a provider shall not be subject to access under the
11 act of June 21, 1957 (P.L.390, No.212), referred to as the
12 Right-to-Know Law.
13 Section 9. Financial interest prohibition.
14 (a) General rule.--No employee or other individual shall:
15 (1) Be appointed or act as guardian of a consumer.
16 (2) Engage in any activity under a power of attorney of
17 a consumer.
18 (3) Be a beneficiary of any insurance policy or annuity
19 of a consumer.
20 (4) Serve as an executor of an estate of a consumer.
21 (b) Duty to inform consumers.--A care manager shall inform
22 each consumer of the provisions of subsection (a).
23 Section 10. Consumer telephone access.
24 No employee or other individual shall restrict or prevent a
25 consumer's access to local telephone service.
26 Section 11. Applicability.
27 The provisions of this act shall not apply:
28 (1) to any employee or other individual who is a family
29 member of a consumer to whom the employee or OTHER individual <--
30 provides services; or
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1 (2) to a private contractual situation between persons
2 where public funding is not involved.
3 Section 12. Procedures for noncompliance; promulgation of
4 regulations.
5 (A) GENERAL RULE.--The department shall cooperate with the <--
6 Department of Public Welfare to:
7 (1) Develop procedures, no later than 90 days after the
8 effective date of this section, to be followed in the event
9 of noncompliance with the provisions of this act.
10 (2) Promulgate regulations within one year after the
11 effective date of this section to administer this act.
12 (B) CERTAIN PERSONS TO BE PROHIBITED FROM PARTICIPATION IN <--
13 WAIVER.--PROCEDURES AND REGULATIONS UNDER SUBSECTION (A) SHALL
14 INCLUDE, BUT NOT BE LIMITED TO, PROHIBITING PARTICIPATION IN A
15 WAIVER FOR:
16 (1) AN EMPLOYEE OR ANY OTHER INDIVIDUAL WHO FAILS TO
17 MEET THE REQUIREMENTS OF SECTIONS 6 AND 7;
18 (2) AN EMPLOYEE WHO FAILS TO NOTIFY A PROVIDER OF ANY
19 OTHER INDIVIDUAL PROVIDING HOME AND COMMUNITY-BASED SERVICES
20 ON BEHALF OF THE EMPLOYEE; OR
21 (3) A PROVIDER WHO FAILS TO COMPLY WITH SECTIONS 6 AND
22 7.
23 Section 13. Effective date.
24 This act shall take effect in 60 days.
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