THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY GINGRICH, BARRAR, BEYER, GEIST, GOODMAN, HENNESSEY, HORNAMAN, KAUFFMAN, KORTZ, MAJOR, MELIO, MOUL, PHILLIPS, PICKETT, RAPP, SWANGER AND VULAKOVICH, FEBRUARY 9, 2009

REFERRED TO COMMITTEE ON AGING AND OLDER ADULT SERVICES, FEBRUARY 9, 2009  

AN ACT

Providing for the powers and duties of the Department of Aging

and area agencies on aging and for annual review of care

plans; requiring criminal background checks and communicable

disease screenings of certain providers; prohibiting certain

provider financial interests; providing for consumer

telephone access; and providing for procedures for

noncompliance.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Short title.

This act shall be known and may be cited as the Home and

Community-Based Services Accountability Act.

Section 2.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Area agency on aging."  The single local agency designated

by the Department of Aging within each planning and service area

to administer the delivery of a comprehensive and coordinated

plan of social and other services and activities.

"Care manager."  A staff member at a local area agency on

aging who is assigned to write and maintain a care plan for each

consumer and to comply with responsibilities and duties as set

forth in procedures established by the Department of Aging.

"Care plan."  A plan written by a care manager, developed in

collaboration and consultation with a consumer, which addresses

the consumer's needs and the services necessary to address those

needs.

"Consumer."  An individual who:

(1)  Is at least 60 years of age.

(2)  Receives home and community-based services through

the Department of Aging waiver.

(3)  Is assessed as nursing facility clinically eligible.

"Consumer representative."  An individual designated by a

consumer to act on behalf of the consumer.

"Department."  The Department of Aging of the Commonwealth.

"Employee."  An individual who is paid by a provider to

provide home and community-based services to a consumer. The

term includes a contract employee who has direct contact with a

consumer or unsupervised access to the personal living quarters

of a consumer.

"Home and community-based services."  Services provided in a

person's home or at a location in the community to assist

consumers to function as independently as possible.

"Nursing facility clinically eligible" or "NFCE."  An

individual who requires health-related care and services because

the individual's physical condition necessitates care and

services that can be provided in the community with home and

community-based services or in a nursing facility.

"Other individual."  Any person who:

(1)  Is not a consumer.

(2)  Is at least 18 years of age.

(3)  Has direct contact with a consumer and provides home

and community-based services on behalf of an employee.

"Provider."  A medical assistance certified entity

responsible for payroll management and disbursement activities.

The term includes a private payroll company, an area agency on

aging, a medical assistance services provider and a Department

of Public Welfare attendant care provider currently providing

this service to Department of Public Welfare attendant care

waiver consumers.

"State police."  The Pennsylvania State Police.

"Waiver."  A Medicaid home and community-based services

waiver granted by the Centers for Medicaid and Medicare Services

to the Department of Public Welfare, under the authority of

section 1915(c) of the Social Security Act (49 Stat. 620, 42

U.S.C. § 301 et seq.).

Section 3.  General duties of area agencies on aging.

An area agency on aging providing services under a waiver

shall retain overall responsibility to ensure that care

management of consumers is competently provided to consumers in

accordance with department standards and the care plan. The area

agency on aging shall coordinate supportive services needed to

promote and maintain consumer independence and shall monitor

consumers by using consumer contact plans developed and

administered through the area agency on aging.

Section 4.  Care plan home visits.

A care plan shall include provisions for a private, physical,

face-to-face home visit by the care manager with the consumer,

without the presence of an employee or other individual, unless

the consumer requests the presence of a relative, a close friend

or a person who has the legal authority to represent the

consumer's interests. The frequency of the visits shall be based

on the consumer's acuity level as outlined in the consumer's

contact plan. At least one home visit per year shall be

conducted on an unannounced basis. The home visit may also

include a registered nurse whose responsibility shall be to

monitor the health of the consumer.

Section 5.  Annual review of care plan.

In accordance with procedures established by the department

for home and community-based services, an area agency on aging

shall maintain on file a care plan for each consumer that is

reviewed and signed every six months by the consumer or the

consumer representative, care manager, care manager's supervisor

and a registered nurse. The care manager shall determine the

type and frequency of contact with a consumer based upon the

degree of consumer impairment and the involvement needed to

ensure the effectiveness and stability of the care plan.

Section 6.  Criminal background checks.

(a)  General rule.--Prior to provision of services under a

waiver, a provider shall, at its own expense, ensure that any

employee or other individual meets the requirements of Chapter 5

of the act of November 6, 1987 (P.L.381, No.79), known as the

Older Adults Protective Services Act, regarding criminal

history. For the purposes of this section, a provider shall be

deemed a facility in accordance with Chapter 5 of the Older

Adults Protective Services Act.

(b)  Employees and other individuals.--

(1)  For any employee or other individual continuing to

provide waiver services, a provider shall comply with

subsection (a) every five years from the initial date of the

report.

(2)  For any employee or other individual who provides

services under a waiver on the effective date of this

section, a provider shall comply with subsection (a) within

one year.

Section 7.  Communicable disease screenings.

(a)  General rule.--Prior to provision of services under a

waiver, a provider shall, at its own expense, obtain

documentation as required under subsection (c) for any employee

and any other individual.

(b)  Employees and other individuals.--

(1)  For any employee or other individual continuing to

provide waiver services, a provider shall comply with

subsection (a) every five years from the initial receipt of

the documentation.

(2)  For any employee or other individual who provides

services under a waiver on the effective date of this

section, a provider shall comply with subsection (a) within

one year.

(c)  Type of documentation.--

(1)  Documentation required under this section shall be

obtained from a physician or other appropriate health care

professional and shall state that the employees and other

individuals are free from communicable disease and have

passed a tuberculosis screening as outlined by screening

guidelines of the Department of Health.

(2)  Employees and other individuals shall comply with

Federal, State and local health requirements related to

communicable disease and follow procedures recommended in the

Centers for Disease Control Guidelines and regulations of the

Occupational Safety and Health Administration, including

provisions of protective articles and in-service training on

universal precautions.

Section 8.  Recordkeeping.

(a)  General rule.--Each provider shall maintain on file

documentation of compliance with the provisions of sections 6

and 7.

(b)  Confidentiality.--Documentation of compliance maintained

on file with a provider shall not be subject to access under the

act of February 14, 2008 (P.L.6, No.3), known as the Right-to-

Know Law.

Section 9.  Financial interest prohibition.

(a)  General rule.--No employee or other individual shall:

(1)  Be appointed or act as guardian of a consumer.

(2)  Engage in any activity under a power of attorney of

a consumer.

(3)  Be a beneficiary of any insurance policy or annuity

of a consumer.

(4)  Serve as an executor of the estate of a consumer.

(b)  Duty to inform consumers.--A care manager shall inform

each consumer of the provisions of subsection (a).

Section 10.  Consumer telephone access.

No employee or other individual shall restrict or prevent a

consumer's access to local telephone service.

Section 11.  Applicability.

The provisions of this act shall not apply:

(1)  to any employee or other individual who is a family

member of a consumer to whom the employee or other individual

provides services; or

(2)  to a private contract between persons where public

funding is not involved.

Section 12.  Procedures for noncompliance; promulgation of

regulations.

(a)  General rule.--The department shall cooperate with the

Department of Public Welfare to:

(1)  Develop procedures, no later than 90 days after the

effective date of this section, to be followed in the event

of noncompliance with the provisions of this act.

(2)  Promulgate regulations within one year after the

effective date of this section to administer this act.

(b)  Certain persons to be prohibited from participation in

waiver.--Procedures and regulations under subsection (a) shall

include, but not be limited to, prohibiting participation in a

waiver for:

(1)  an employee or any other individual who fails to

meet the requirements of sections 6 and 7;

(2)  an employee who fails to notify a provider of any

other individual providing home and community-based services

on behalf of the employee; or

(3)  a provider who fails to comply with sections 6 and

7.

Section 13.  Effective date.

This act shall take effect in 60 days.