SENATE AMENDED
PRIOR PRINTER'S NOS. 1744, 2107, 2337 PRINTER'S NO. 4045
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
SENATOR ORIE, AGING AND YOUTH, IN SENATE, AS AMENDED,
MAY 3, 2006
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 PENNSYLVANIA DEPARTMENT OF AGING 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) Has direct contact with a consumer and provides home
6 and community-based services, on behalf of an employee.
7 "Provider." A medical assistance certified entity
8 responsible for payroll management and disbursement activities.
9 The term includes a private payroll company, an area agency on
10 aging, a medical assistance services provider and a Department
11 of Public Welfare attendant care provider currently providing
12 this service to Department of Public Welfare attendant care
13 waiver consumers.
14 "State police." The Pennsylvania State Police.
15 "Waiver." A Medicaid home and community-based services
16 waiver granted by the Centers for Medicaid and Medicare Services
17 to the Department of Public Welfare, under the authority of
18 section 1915(c) of the Social Security Act (49 Stat. 620, 42
19 U.S.C. § 301 et seq.).
20 Section 3. General duties of area agencies on aging.
21 An area agency on aging PROVIDING SERVICES UNDER A WAIVER <--
22 shall retain overall responsibility to ensure that care
23 management of consumers is competently provided to consumers in
24 accordance with department standards and the care plan. The AAA
25 shall coordinate supportive services needed to promote and
26 maintain consumer independence and shall monitor consumers by
27 using consumer contact plans developed and administered through
28 the AAA.
29 Section 4. Care plan home visits.
30 A care plan shall include provisions for a private, physical,
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1 face-to-face home visit by the care manager with the consumer at <--
2 least monthly, without the presence of an employee or other
3 individual, UNLESS THE CONSUMER REQUESTS THE PRESENCE OF A <--
4 RELATIVE, A CLOSE FRIEND OR A PERSON WHO HAS THE LEGAL AUTHORITY
5 TO REPRESENT THE CONSUMER'S INTERESTS. THE FREQUENCY OF THE
6 VISITS SHALL BE BASED ON THE CONSUMER'S ACUITY LEVEL AS OUTLINED
7 IN THE CONSUMER'S CONTACT PLAN. At least one home visit per year
8 shall be conducted on an unannounced basis. The home visit may
9 also include a registered nurse whose responsibility shall be to
10 monitor the health of the consumer.
11 Section 5. Annual review of care plan.
12 In accordance with procedures established by the department
13 for home and community-based services, an AAA shall maintain on
14 file a care plan for each consumer that is reviewed and signed
15 every six months by the consumer or the consumer representative,
16 care manager, CARE MANAGER'S supervisor and a registered nurse. <--
17 The care manager shall determine the type and frequency of
18 contact with a consumer based upon the degree of consumer
19 impairment and the involvement needed to ensure the
20 effectiveness and stability of the care plan.
21 Section 6. Criminal background checks.
22 (a) General rule.--Prior to provision of services under a
23 waiver, a provider shall, at its own expense, ensure that any
24 employee or other individual meets the requirements of Chapter 5
25 of the act of November 6, 1987 (P.L.381, No.79), known as the
26 Older Adults Protective Services Act, regarding criminal
27 history. For the purposes of this section, a provider shall be
28 deemed a facility in accordance with Chapter 5 of the Older
29 Adults Protective Services Act.
30 (b) Employees and other individuals.--
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1 (1) For any employee or other individual continuing to
2 provide waiver services, a provider shall comply with
3 subsection (a) every five years from the initial date of the
4 report.
5 (2) For any employee or other individual who provides
6 services under a waiver on the effective date of this
7 section, a provider shall comply with subsection (a) within
8 one year.
9 Section 7. Communicable disease screenings.
10 (a) General rule.--Prior to provision of services under a
11 waiver, a provider shall, at its own expense, obtain
12 documentation as required under subsection (c) for any employee
13 and any other individual.
14 (b) Employees and other individuals.--
15 (1) For any employee or other individual continuing to
16 provide waiver services, a provider shall comply with
17 subsection (a) every five years from the initial receipt of
18 the documentation.
19 (2) For any employee or other individual who provides
20 services under a waiver on the effective date of this
21 section, a provider shall comply with subsection (a) within
22 one year.
23 (c) Type of documentation.--
24 (1) Documentation required under this section shall be
25 obtained from a physician or other appropriate health care
26 professional and shall state that the employees and other
27 individuals are free from communicable disease and have
28 passed a tuberculosis screening as outlined by screening
29 guidelines of the Department of Health.
30 (2) Employees and other individuals shall comply with
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1 Federal, State and local health requirements related to
2 communicable disease and follow procedures recommended in the
3 Centers for Disease Control Guidelines and regulations of the
4 Occupational Safety and Health Administration, including
5 provisions of protective articles and in-service training on
6 universal precautions.
7 Section 8. Recordkeeping.
8 (a) General rule.--Each provider shall maintain on file
9 documentation of compliance with the provisions of sections 6
10 and 7.
11 (b) Confidentiality.--Documentation of compliance maintained
12 on file with a provider shall not be subject to access under the
13 act of June 21, 1957 (P.L.390, No.212), referred to as the
14 Right-to-Know Law.
15 Section 9. Financial interest prohibition.
16 (a) General rule.--No employee or other individual shall:
17 (1) Be appointed or act as guardian of a consumer.
18 (2) Engage in any activity under a power of attorney of
19 a consumer.
20 (3) Be a beneficiary of any insurance policy or annuity
21 of a consumer.
22 (4) Serve as an executor of an THE estate of a consumer. <--
23 (b) Duty to inform consumers.--A care manager shall inform
24 each consumer of the provisions of subsection (a).
25 Section 10. Consumer telephone access.
26 No employee or other individual shall restrict or prevent a
27 consumer's access to local telephone service.
28 Section 11. Applicability.
29 The provisions of this act shall not apply:
30 (1) to any employee or other individual who is a family
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1 member of a consumer to whom the employee or other individual
2 provides services; or
3 (2) to a private contractual situation CONTRACT between <--
4 persons where public funding is not involved.
5 Section 12. Procedures for noncompliance; promulgation of
6 regulations.
7 (a) General rule.--The department shall cooperate with the
8 Department of Public Welfare to:
9 (1) Develop procedures, no later than 90 days after the
10 effective date of this section, to be followed in the event
11 of noncompliance with the provisions of this act.
12 (2) Promulgate regulations within one year after the
13 effective date of this section to administer this act.
14 (b) Certain persons to be prohibited from participation in
15 waiver.--Procedures and regulations under subsection (a) shall
16 include, but not be limited to, prohibiting participation in a
17 waiver for:
18 (1) an employee or any other individual who fails to
19 meet the requirements of sections 6 and 7;
20 (2) an employee who fails to notify a provider of any
21 other individual providing home and community-based services
22 on behalf of the employee; or
23 (3) a provider who fails to comply with sections 6 and
24 7.
25 Section 13. Effective date.
26 This act shall take effect in 60 days.
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