2014 -- H 7442

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LC004283

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2014

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A N   A C T

RELATING TO HUMAN SERVICES -- PERSONAL CARE ATTENDANT PROGRAM

     Introduced By: Representatives Naughton, Fellela, Shekarchi, and Diaz

     Date Introduced: February 12, 2014

     Referred To: House Health, Education & Welfare

     (Attorney General)

It is enacted by the General Assembly as follows:

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

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

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

provided to any person who meets the following criteria:

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

a manner prescribed by the director;

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

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

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

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

     SECTION 2. Title 23 of the General Laws entitled "HEALTH AND SAFETY" is hereby

amended by adding thereto the following chapter:

CHAPTER 93

PERSONAL CARE ASSISTANT SERVICES

     23-93-1. Definitions. – As used in this chapter:

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

registration as a personal care assistant.

     (2) "Activities of Daily Living" means hands on assistance with activities of daily living

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

     (3) "Bureau of Criminal Identification" means the bureau of criminal identification of the

department of attorney general.

     (4) "Companionship" means and includes, but is not limited to, spending time with or

caring for a consumer, accompanying a consumer on trips and outings, and providing necessary

transportation to a consumer.

     (5) "Consumer" means an individual who receives self-directed personal assistant care

services, including, a participant in personal care assistant services provided pursuant to § 40-8.1-

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

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

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

     (6) "Department" means the department of health.

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

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

     (8) "Homemaking" means performing household chores that includes, but is not limited

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

activities for a consumer.

     (9) "Participant" means an individual approved by the department to receive self-directed

personal care assistant services.

     (10) "Personal care assistant" means an individual with appropriate training who provides

personal care assistant services to a consumer.

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

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

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

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

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

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

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

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

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

     (13) "Registrant" means the lawful holder of a certificate of registration as a personal care

assistant with the department.

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

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

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

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

     23-93-2. Rights of consumers. -- The department shall develop a document of rights to

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

consumer and thereafter, on an annual basis. These rights include:

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

be treated with dignity;

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

provision of any services stated in the service plan;

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

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

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

not be subject to discrimination or reprisal for doing so;

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

health conditions of the consumers;

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

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

     23-93-3. Complaint process. -- The department shall investigate complaints made by a

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

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

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

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

     23-93-4. Registration. -- (a) Every person being employed as a personal care assistant or

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

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

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

applicant underwent a national criminal records check in accordance with § 23-93-8 and

successfully completed the training program in accordance with § 23-93-7.

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

and the register shall be open to public inspection.

     (d) The department may charge a fee for registration or renewal of the certificate that

shall be established by rules and regulations promulgated pursuant to § 23-93-15.

     23-93-5. Renewal of certificate of registration. -- Every registrant shall renew their

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

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

required by § 23-93-7. The department shall not automatically renew the certificate of registration

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

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

registration.

     23-93-6. Grandfather clause. -- After January 1, 2015 and at any time prior to March

31, 2015, the department shall issue a certificate of registration to any applicant who shall present

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

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

records check in accordance with § 23-93-8.

     23-93-7. Personal care assistant training. -- (a) The department shall be responsible for

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

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

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

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

     (b) All applicants not otherwise exempted, under § 23-93-6, are required to complete the

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

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

the training program.

     23-93-8. National criminal records check. -- (a) Any person applying for a certificate of

registration as a personal care assistant shall undergo a national criminal records check to be

initiated prior to applying for a certificate of registration.

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

criminal records check that shall be supported by fingerprints submitted to the Federal Bureau of

Investigation ("FBI"). Upon the discovery of any disqualifying information as defined in § 23-93-

10, the bureau of criminal identification shall inform the applicant, in writing, of the nature of the

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

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

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

of criminal identification shall inform the applicant and the department, in writing.

     (d) It shall be the responsibility of the applicant to pay for the national criminal records

check.

     23-93-9. 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

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

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

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

maintained on file to satisfy the requirements of this chapter.

     23-93-10. Disqualifying information. – (a) Information produced by a national criminal

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

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

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

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

felonies (murder, robbery, rape, burglary, or the abominable and detestable crime against nature),

felony assault, patient abuse, neglect or mistreatment of patients, first degree arson, robbery,

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

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

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

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

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

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

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

with the attorney general.

     23-93-11. Denial, suspension, or revocation of a certificate of registration. – The

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

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

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

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

23-93-10. The notice shall be effected by registered or certified mail or by personal service,

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

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

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

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

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

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

denying, suspending, or revoking the certificate of registration shall become final thirty (30) days

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

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appeals the decision pursuant to § 42-35-15. The procedure governing hearings authorized by this

section shall be in accordance with §§ 42-35-9 and 42-35-13 as stipulated in § 42-35-14. A full

and complete record shall be kept of all proceedings, and all testimony shall be reported but need

not be transcribed unless the decision is appealed pursuant to § 42-35-15. A copy or copies of the

transcript may be obtained by an interested party on payment of the cost of preparing the copy or

copies. Witnesses may be subpoenaed by either party.

     23-93-12. Judicial review of certificate of registration action. – Any person who has

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

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

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

     23-93-13. Immunity from liability . – No person who disqualifies an individual from

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

disqualifying information as defined in § 23-93-10 or of a national criminal records check relating

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

proceeding of any nature as a result of the disqualification.

     23-93-14. Inspection and investigations. – The department may conduct any such

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

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

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

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

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

Registrants shall make available to the department all books, records, policies and procedures, or

any other materials requested during the course of an investigation or inspection. Refusal to make

such materials available to the department shall be grounds for certificate of registration

revocation, or the imposition of any other penalty provided in the chapter.

     23-93-15. Rules and regulations. – The department shall promulgate rules and

regulations to carry out the intent of this chapter.

     23-93-16. Penalties of violations. – It shall be a misdemeanor punishable by a fine of not

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

for any person to:

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

without a certificate of registration as required by this chapter;

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

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

concealment of material facts.

     23-93-17. Severability. – If any provision of this chapter or the application of any

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

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

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

severable.

     SECTION 3. This act shall take effect on January 1, 2015.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO HUMAN SERVICES -- PERSONAL CARE ATTENDANT PROGRAM

***

     This act would require that persons who provide personal care assistant services to

consumers register with the department of health and obtain certificates of registration after

meeting various criteria.

     This act would take effect on January 1, 2015.

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