2017 -- S 0586

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LC000772

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2017

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A N   A C T

RELATING TO HEALTH AND SAFETY

     Introduced By: Senators Lombardi, McCaffrey, Archambault, Jabour, and Conley

     Date Introduced: March 15, 2017

     Referred To: Senate Judiciary

     (Attorney General)

It is enacted by the General Assembly as follows:

     SECTION 1. Sections 12-1.6-1 of the General Laws in Chapter 12-1.6 entitled "National

Criminal Records Check System" are hereby amended to read as follows:

     12-1.6-1. Automated fingerprint identification system database.

     The department of attorney general may establish and maintain an automated fingerprint

identification system database that would allow the department to store and maintain all

fingerprints submitted in accordance with the national criminal records check system. The

automated fingerprint identification system database would provide for an automatic notification

if, and when, a subsequent criminal arrest fingerprint card is submitted to the system that matches

a set of fingerprints previously submitted in accordance with a national criminal records check. If

the aforementioned arrest results in a conviction, the department shall immediately notify those

individuals and entities with which that individual is associated and who are required to be

notified of disqualifying information concerning national criminal records checks as provided in

chapters 17, 17.4, 17.7.1, and 94 of title 23 or § 23-1-52. The information in the database

established under this section is confidential and not subject to disclosure under chapter 38-2.

     12-1.6-2. Long-term healthcare workers.

     The department of attorney general shall maintain an electronic, web-based system to

assist facilities, licensed under chapters 17, 17.4, 17.7.1, and 94 of title 23 or § 23-1-52, required

to check relevant registries and conduct national criminal records checks of routine contact

patient employees. The department of attorney general shall provide for an automated notice, as

authorized in § 12-1.6-1, to those facilities if a routine-contact patient employee is subsequently

convicted of a disqualifying offense, as described in the relevant licensing statute. The

department of attorney general may charge a facility a one-time, set-up fee of up to one hundred

dollars ($100) for access to the electronic web-based system under this section.

     SECTION 2. 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 3. Title 23 of the General Laws entitled "HEALTH AND SAFETY" is hereby

amended by adding thereto the following chapter:

CHAPTER 94

PERSONAL CARE ASSISTANT SERVICES

     23-94-1. 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 attendant 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 their family. Consumer shall not include an individual who

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

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

     (7) "Disqualifying information" means information produced by a national criminal

records check pertaining to a conviction for the following crimes: 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. For purposes of this subsection

"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.

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

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

     (9) "Family caregiver" means any relative or partner providing personal care assistant

services, whether financially compensated or not.

     (10) "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.

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

directed personal care assistant services.

     (12) "Personal care assistant" means an individual with appropriate training who receives

financial compensation to provide personal care assistant services to a consumer and is not a

family caregiver.

     (13) "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 17 of title

23); assisted living residences (chapter 17.4 of title 23); nursing service agencies (chapter 17.7.1

of title 23); and/or behavioral healthcare, developmental disabilities and hospitals facilities

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(chapter 40.1-25.1).

     (14) "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.

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

assistant with the department.

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

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

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

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.

     23-94-2. Rights of consumers.

     The department shall develop 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.

     23-94-3. 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.

     23-94-4. Registration.

     (a) Every person being employed as a personal care assistant or offering services as a

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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 §23-94-8 and

successfully completed the training program in accordance with §23-94-7.

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

and the register shall be open to public inspection.

     23-94-5. Renewal of certificate of registration.

     Every registrant shall renew their certificate of registration biennially by making

application to the department. Such forms shall be 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 §23-94-7. 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.

     23-94-6. Grandfather clause.

     After January 1, 2018 and at any time prior to March 31, 2018, the department shall issue

a certificate of registration to any applicant who shall present satisfactory evidence that they have

been employed as a personal care assistant in Rhode Island for a period of at least three hundred

(300) hours and has underwent a national criminal records check in accordance with §23-94-8.

     23-94-7. Personal care assistant training.

     (a) The department shall be responsible for ensuring that all registrants have completed

two (2) hours of initial training on personal care assistant responsibilities and practices, as

prescribed by the department. In addition to the two (2) 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 §23-94-6, 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.

     23-94-8. 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

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

investigation ("FBI").

     (1) Upon the discovery of any disqualifying information, 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. The department may not deny a

certificate of registration based on the existence of disqualifying information. However, the

department shall alert the hiring consumer that disqualifying information has been discovered on

a registrant's national criminal records check. The registrant about whom disqualifying

information has been found may provide the consumer a copy of the national criminal records

check. The consumer shall make a judgment regarding the employment or continued employment

of a registrant.

     (2) 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.

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

check.

     23-94-9. 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 an offense that is

considered disqualifying information. 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, 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

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§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.

     23-94-10. Judicial review of certificate of registration action.

     Any person who has exhausted all administrative remedies available to them 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.

     23-94-11. 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 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.

     23-94-12. Inspections 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 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 materials available to the department shall be grounds for certificate of

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

     23-94-13. Rules and regulations.

     The department shall promulgate rules and regulations to carry out the intent of this

chapter.

     23-94-14. 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 their certification of registration

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

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

concealment of material facts.

     23-94-15. Severability.

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     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 4. This act shall take effect on January 1, 2018.

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LC000772

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO HEALTH AND SAFETY

***

     This act would require registration and criminal background checks of individuals who

provide personal care assistant services.

     This act would take effect on January 1, 2018.

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