2012 -- S 2866 SUBSTITUTE A

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LC02403/SUB A

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO HUMAN SERVICES - PERSONAL CARE ATTENDANT PROGRAM

     Introduced By: Senator Michael J. McCaffrey

     Date Introduced: April 26, 2012

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Section 40-8.1-3 of the General Laws in Chapter 40-8.1 entitled "Personal

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Care Attendant Program" is hereby amended to read as follows:

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     40-8.1-3. Eligibility for services. -- Services available under this chapter may be

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provided to any person who meets the following criteria:

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      (1) Has made application therefor to the director of the department of human services in

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a manner prescribed by the director;

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      (2) Has a severe physical disability that caused the person to be unduly dependent, the

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disability to be certified by the division of vocational office of rehabilitation services; and

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      (3) Has not sufficient income or resources to meet the cost of home care services, a

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determination of insufficiency to be made by the division of vocational rehabilitation.

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     SECTION 2. Title 23 of the General Laws entitled "Health and Safety" is hereby

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amended by adding thereto the following chapter:

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     CHAPTER 87

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PERSONAL CARE SERVICES

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     23-87-1. Definitions. -- As used in this chapter:

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     (1) “Applicant” means a person applying with the department for a certificate of

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registration as a personal care assistant.

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     (2) “Activities of daily living” means hands-on assistance with activities of daily living

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including, but not limited to, ambulation, transfer, toileting, and grooming.

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     (3) “Bureau of criminal identification” means the bureau of criminal identification of the

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department of attorney general.

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     (4) “Companionship” includes, but is not limited to, spending time with or caring for a

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consumer, accompanying a consumer on trips and outings, and providing necessary transportation

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to a consumer.

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     (5) “Consumer” means an individual who receives self directed personal assistant care

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services, including, a participant in personal care assistant services provided pursuant to section

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40-8.1-2 or a person who receives personal care assistant services through Medicaid, a third-party

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payor, or paid for by the individual and/or his/her family. Consumer shall not include an

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individual who receives services similar to personal care assistant services for no compensation.

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     (6) “Department” means the department of health.

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     (7) “Employer” means the consumer unless the personal care assistant is employed by a

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third-party, in such cases the third-party is the employer.

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     (8) Homemaking” means performing household chores that include, but are not limited

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to, housekeeping, meal planning and preparation, shopping assistance, and routine household

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activities for a consumer.

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     (9) “Participant” means an individual approved by the department to receive self directed

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personal care assistant services.

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     (10) “Persona1 care assistant” means an individual with appropriate training who

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provides personal care assistant services to a consumer.

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     (11) “Personal care assistant services” means assistance with activities of daily living,

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homemaking, and companionship provided to a consumer that are intended to enable the

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consumer to remain safely and comfortably in their residence. Personal care assistant services

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does not include services provided by entities required to be licensed under the general laws

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including, but not limited to: education facilities, title 16; health care facilities, chapter 23-17;

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assisted living residences, chapter 23-17.4; nursing service agencies, chapter 23-17.7.1; and/or

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behavioral healthcare, developmental disabilities and hospitals facilities, chapter 40.1-25.1.

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     (12) “Personal representative” means a person who, under applicable state law, has the

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authority to act on behalf of the consumer with regard to an action to be taken.

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     (13) “Registrant” means the lawful holder of a certification of registration as a personal

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care assistant with the department.

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     (14) “Service plan” means a written list of the types and schedule of personal care

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assistant services prepared by the personal care assistant, or his or her designee, updated to reflect

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changes in needs or services as appropriate, but at least annually, that states the services to be

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provided to the consumer subject to the consumer’s right to temporarily suspend, permanently

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terminate, temporarily add, or permanently add the provision of any such service.

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     23-87-2. Rights of consumers.-- The department shall develop rights to be distributed to

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the consumer within five (5) calendar days of the initiation of services to the consumer and

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thereafter, on an annual basis. These rights include:

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     (1) The consumer’s right to be free from verbal, physical and psychological abuse and to

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be treated with dignity;

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     (2) The consumer’s right to temporarily or permanently suspend, terminate, or add the

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provision of any services stated in the service plan;

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     (3) The consumer’s right to have property treated with respect;

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     (4) The consumer’s right to voice grievances regarding services furnished or regarding

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the lack of respect for property by anyone who is furnishing services and that the consumer must

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not be subject to discrimination or reprisal for doing so;

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     (5) A statement that it is not within the scope of the services to manage the medical and

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health conditions of the consumers;

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     (6) The charges for services provided by the personal care assistant; and

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     (7) The procedure and contact information to file a complaint with the department.

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     23-87-3. Complaint Process.-- The department shall investigate complaints made by a

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consumer, the consumer’s family, or the personal representative regarding services that are or

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have failed to be furnished or lack of respect for the consumer’s property by the personal care

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assistant. The department shall document the existence of the complaint and the resolution of the

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complaint in accordance with the department’s rules and regulations.

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     23-87-4. Registration. -- (a) Every person being employed as a personal care assistant or

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offering services as a personal care assistant must obtain a certificate of registration issued by the

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department within their initial thirty (30) days of employment or of offering services.

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     (b) The department shall verify, prior to issuing a certificate of registration that the

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applicant underwent a criminal background check in accordance with section 23-87-8 and

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successfully completed the training program in accordance with section 23-87-7.

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     (c) The department shall register all those individuals issued a certificate of registration

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and the register shall be open to public inspection.

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     (d) The department may charge a fee for registration or renewal that shall be established

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by rules and regulations promulgated pursuant to section 23-87-15 of this chapter.

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     23-87-5. Renewal of certificate of registration. -- Every registrant shall renew their

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certificate of registration biennially by making application to the department. Such forms shall be

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provided by the department. The renewals shall be granted as a matter of course provided that the

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registrant has proof of successful completion of the continuing education requirements as

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required by section 23-87-7. The department shall not automatically renew the certificate of

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registration if the department finds that the registrant has acted or failed to act in a manner under

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the circumstances that would constitute grounds for suspension or revocation of a certificate of

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registration.

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     23-87-6. Grandfather clause. -- After January 1, 2013 and at any time prior to March

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31, 2013, the department shall issue a certificate of registration to any applicant who shall present

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satisfactory evidence that he or she has been employed as a personal care assistant in Rhode

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Island for a period of at least three hundred (300) hours and has undergone a criminal background

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check in accordance with section 23-87-8.

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     23-87-7. Personal Care Assistant Training.-- (a) The department shall be responsible

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for ensuring that all registrants have completed four (4) hours of initial training on personal care

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assistant responsibilities and practices and two (2) hours of continuing education biennially

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thereafter, as prescribed by the department. In addition to the four (4) hours of initial training,

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each registrant shall receive individualized training on how to assist their consumer’s needs.

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     (b) All applicants not otherwise exempted, under section 23-87-6, are required to

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complete the process of training within thirty (30) days from the date of initiation of training. If

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the applicant fails to successfully complete the training within ninety (90) days, they must

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successfully repeat the training program.

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     23-87-8. Criminal background check. -- (a) Any person applying for a certificate of

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registration as a personal care assistant shall undergo a criminal background check to be initiated

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prior to applying for a certificate of registration.

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     (b) The applicant shall apply to the bureau of criminal identification for a national

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criminal background check that shall be supported by fingerprints submitted to the federal bureau

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of investigation (“FBI”). Upon the discovery of any disqualifying information as defined in

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section 23-87-10, the bureau of criminal identification shall inform the applicant, in writing, of

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the nature of the disqualifying information; and, without disclosing the nature of the disqualifying

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information, will notify the department, in writing, that disqualifying information has been

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discovered.

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     (c) In those situations in which no disqualifying information has been found, the bureau

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of criminal identification of the department of attorney general shall inform the applicant and the

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department, in writing.

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     (d) It shall be the responsibility of the applicant to pay for the criminal background check.

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     23-87-9. Prior criminal records checks.-- If an applicant has undergone a national

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criminal records check within eighteen (18) months of an application for a certificate of

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registration, then an applicant may request from the bureau of criminal identification a letter

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indicating if any disqualifying information was discovered. The bureau of criminal identification

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shall respond without disclosing the nature of the disqualifying information. The letter may be

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maintained on file to satisfy the requirements of this chapter.

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     23-87-10. Disqualifying information.-- (a) Information produced by a criminal

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background check pertaining to a conviction, for the following crimes, shall result in a letter to

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the applicant and the department disqualifying the applicant from a certificate of registration:

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murder, manslaughter, first degree sexual assault, second degree sexual assault, third degree

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sexual assault, assault on persons sixty (60) years of age or older, assault with intent to commit

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specified felonies (murder, robbery, rape, burglary, or the abominable and detestable crime

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against nature), felony assault, patient abuse, neglect or mistreatment of patients, first degree

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arson, robbery, felony drug offenses, larceny, abuse, neglect and/or exploitation of adults with

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severe impairments, fraud and false dealing, theft, embezzlement, false pretenses, and

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misappropriation, impersonation and identity fraud, exploitation of elders, or felony banking law

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violations.

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     (b) For purposes of this section “conviction” means, in addition to judgments of

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conviction entered by a court subsequent to a finding of guilty or a plea of guilty, those instances

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where the defendant has entered a plea of nolo contendere and has received a sentence of

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probation and those instances where a defendant has entered into a deferred sentence agreement

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with the attorney general.

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     23-87-11. Denial, suspension, or revocation of a certificate of registration.-- The

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department, after notice and opportunity for a hearing to the applicant or registrant, is authorized

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to deny, suspend, or revoke a certificate of registration in any case in which it finds that there has

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been failure to comply with the requirements under this chapter and the rules and regulations

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promulgated thereto or the registrant has been convicted of a disqualifying offense provided in

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section 23-87-10. The notice shall be effected by registered or certified mail or by personal

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service, setting forth the particular reasons for the proposed action and fixing a date not less than

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thirty (30) days from the date of the mailing or service, at which time the applicant or registrant

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shall be given an opportunity for a prompt and fair hearing, On the basis of the hearing, or upon

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the failure of the applicant or registrant to appear, the department shall make a determination

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specifying its findings of fact and conclusions of law. A copy of the determination shall be sent

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by registered or certified mail or served personally upon the applicant or registrant. The decision

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denying, suspending, or revoking the certificate of registration or application shall become final

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thirty (30) days after it is so mailed or served, unless the applicant or registrant, within the thirty

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(30) day period, appeals the decision pursuant to section 42-35-15. The procedure governing

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hearings authorized by this section shall be in accordance with sections 42-35-9 and 42-35-13 as

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stipulated in section 42-35-14. A full and complete record shall be kept of all proceedings, and all

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testimony shall be reported but need not be transcribed unless the decision is appealed pursuant to

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section 42-35-15. A copy or copies of the transcript may be obtained by an interested party on

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payment of the cost of preparing the copy or copies. Witnesses may be subpoenaed by either

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party.

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     23-87-12. Judicial review of certificate of registration action. -- Any person who has

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exhausted all administrative remedies available to him or her within the department, and who is

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aggrieved by a final decision of the department, is entitled to judicial review in accordance with

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the provisions of sections 42-35-15 and 42-35-16.

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     23-87-13. Immunity from liability. -- No person who disqualifies an individual from

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employment or continued employment within thirty (30) days of receipt of a letter containing

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disqualifying information as defined in section 23-87-10 or of a criminal background check

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relating to that information shall be liable for civil damages or subject to any claim, cause of

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action, or proceeding of any nature as a result of the disqualification.

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     23-87-14. Inspections and Investigations.-- The department may conduct any such

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investigation and inspection as it deems necessary to assess compliance with this chapter and the

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rules and regulations promulgated thereto. Wherever possible and practical, on-site reviews shall

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be scheduled, in an effort so as to reduce the number of visits and the disruption to the personal

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care assistant services. Investigations and inspections may occur when the consumer gives

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consent including the direct observation of the provision of personal care assistant services.

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Personal care assistants registered under the chapter shall make available to the department all

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books, records, policies and procedures, or any other materials requested during the course of an

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investigation or inspection. Refusal to make such materials available to the department shall be

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grounds for certificate of registration revocation, or the imposition of any other penalty provided

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in the chapter.

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     23-87-15. Rules and regulations.-- The department shall promulgate rules and

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regulations to carry out the intent of this chapter.

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     23-87-16. Penalties for violations. -- It shall be a misdemeanor punishable by a fine of

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not more than one thousand dollars ($1,000) and/or by imprisonment for not more than one year

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for any person to:

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     (1) Be employed as a personal care assistant or offer services as a personal care assistant

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without a certificate of registration as required by this chapter;

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     (2) Practice as a personal care assistant during the time his or her certification of

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registration issued under the provisions of this chapter is suspended or revoked; or

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     (3) Obtain his or her certification of registration by means of fraud, misrepresentation, or

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concealment of material facts.

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     23-87-17. Severability.-- If any provision of this chapter or the application of any

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provision of this chapter to any person or circumstance shall be held invalid, the invalidity shall

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not affect the provisions or application of this chapter which can be given effect without the

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invalid provisions or application, and to this end the provisions of this chapter are declared

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severable.

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     SECTION 3. This act shall take effect on January 1, 2013.

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LC02403/SUB A

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO HUMAN SERVICES - PERSONAL CARE ATTENDANT PROGRAM

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     This act would require registration of those individuals who provide personal care

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assistant services to a consumer.

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     This act would take effect on January 1, 2013.

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LC02403/SUB A

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