2018 -- S 2734 SUBSTITUTE A

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LC005278/SUB A/2

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2018

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A N   A C T

RELATING TO HUMAN SERVICES -- QUALITY SELF-DIRECTED SERVICES -- PUBLIC

OFFICERS AND EMPLOYEES -- INDIVIDUAL PROVIDERS OF DIRECT SUPPORT

SERVICES

     Introduced By: Senators Goodwin, and Euer

     Date Introduced: March 20, 2018

     Referred To: Senate Labor

     It is enacted by the General Assembly as follows:

     SECTION 1. Title 40 of the General Laws entitled "HUMAN SERVICES" is hereby

amended by adding thereto the following chapter:

CHAPTER 8.14

QUALITY SELF-DIRECTED SERVICES

     40-8.14-1. Definitions.

     For purposes of this section:

     (1) "Activities of daily living" (ADL) means the routine activities that people tend to do

every day without needing assistance. There are six (6) basic ADLs: eating, bathing, dressing,

toileting, transferring (walking) and continence.

     (2) "Covered home and community-based services (HCBS)" means any core, preventive,

or specialized long-term care services and supports available in a person's home or a community-

based living arrangement that the state is authorized to provide under the Medicaid state plan or

the Section 1115 waiver.

     (3) "Direct support services" means the range of home and community-based services

(HCBS) covered services that are identified in the Medicaid state plan, Rhode Island's Section

1115 waiver or any similar program that may provide similar services in the future, and the rules

and regulations promulgated by the executive office of health and human services (EOHHS) or a

designated agency authorizes individual home care providers to provide. The direct support

services must be provided in accordance with applicable federal and state law, rules and

regulations and include, but are not limited to, personal care assistance, homemaker, and

companion services that the state is authorized to provide under the Medicaid state plan, the

Section 1115 waiver or any similar program in the future, including:

     (i) Participant assistance with activities of daily living and instrumental activities of daily

living as defined in this chapter;

     (ii) Assistance with monitoring health status and physical condition;

     (iii) Assistance with preparation and eating of meals (not the cost of the meals itself);

     (iv) Assistance with housekeeping activities (bed making, dusting, vacuuming, laundry,

grocery shopping, cleaning);

     (v) Assistance with transferring, ambulation, and use of special mobility devices assisting

the participant by directly providing or arranging transportation; and

     (vi) Other similar, in-home, non-medical long-term services and supports provided to an

elderly person or individual with a disability by an individual provider to meet such person's daily

living needs and ensure that such person may adequately function in the person's home and have

safe access to the community.

     (4) "Director" means the director of the Rhode Island department of administration.

     (5) "Fiscal intermediary" means a third-party organization under contract with the

EOHHS responsible for performing payroll and other employment-related functions on behalf of

the participant.

     (i) The fiscal intermediary shall:

     (A) Be authorized by the secretary or a designated agency to receive and distribute

support funds on behalf of a participant in accordance with the participant's service plan; and

     (B) Act as a fiscal intermediary on behalf of a participant in compliance with all rules,

regulations, and terms and conditions established by the secretary.

     (ii) The fiscal intermediary shall not make any decisions regarding hiring, supervising, or

firing individual providers.

     (6) "Individual provider" means an individual selected by and working under the

direction of a Medicaid LTSS beneficiary or the beneficiary's duly authorized representative to

provide direct support services to the participant in accordance with the beneficiary's service plan,

but does not include an employee of a provider agency, subject to the agency's direction and

control commensurate with agency employee status or an individual providing services to a

participant electing the personal choice option in any program.

     (7) "Instrumental activities of daily living" means the skills a person needs to live safely

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and successfully in a residential setting of choice without outside supports. Such skills include,

but are not limited to, using the telephone, traveling, shopping, preparing meals, doing

housework, taking medications properly, and managing money.

     (8) "Medicaid LTSS beneficiary" means a person who has been determined by the state

to obtain Medicaid-funded long-term services and supports.

     (9) "Participant" means a Medicaid LTSS beneficiary who receives direct support

services from an individual provider.

     (10) "Participant's representative" means a participant's legal guardian or an individual

having the authority and responsibility to act on behalf of a participant with respect to the

provision of direct support services.

     (11) "Provider representative" means a provider organization that is certified as the

exclusive negotiating representative of individual providers as provided in § 40-8.15-7.

     (12) "Secretary" means the secretary of the Rhode Island executive office of health and

human services (EOHHS).

     40-8.14-2. Scope of coverage.

     Individual providers may provide all authorized HCBS covered services in accordance

with the participant’s service plan at home and other Medicaid certified settings, to the extent the

applicable federal and state laws and rules and regulations allow.

     40-8.14-3. Use of employee workforce.

     The requirement under § 40-8.14-2 shall not restrict the state's ability to afford

participants and participants' representatives who choose not to employ an individual provider, or

are unable to do so, the option of receiving direct support services through a personal choice

option or through the employees of provider agencies, rather than through an individual provider.

     Nothing in this chapter shall restrict the state's ability to afford Medicaid LTSS

beneficiaries authorized to receive HCBS covered services with the freedom of choice guaranteed

under Title XIX to enter into service delivery agreements with any authorized Medicaid provider.

     40-8.14-4. Duties of the executive office for health and human services.

     (a) The secretary shall afford to all Medicaid LTSS beneficiaries who receive authorized

HCBS covered services in accordance with a service plan the option of employing an individual

provider to provide direct support services.

     (b) The secretary shall modify program operations as necessary to ensure implementation

of the individual provider model and to ensure all relevant vendors assist and cooperate as

needed, including managed care organizations and providers of fiscal support, fiscal intermediary,

financial management, or similar services to provide support to participants and participants'

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representatives with regard to employing individual providers, and otherwise fulfill the

requirements of this section, including the provisions of subsection (f) of this section.

     (c) The secretary shall have the authority to:

     (1) Establish reimbursement rates for all individual providers, in accordance with chapter

8.15 of title 40, provided that these rates may permit individual provider variations based on

traditional and relevant factors otherwise permitted by law;

     (2) Ensure delivery of required orientation programs for individual providers;

     (3) Implement training and educational opportunities negotiated in accordance with

chapter 8.15 of title 40 for individual providers, as well as for participants and participants'

representatives who receive services from individual providers, including opportunities for

individual providers to obtain certification documenting additional training and experience in

areas of specialization;

     (4) In collaboration with the provider representative, provide for the maintenance of a

public registry of individuals who have consented to be included to:

     (i) Allow for routine, emergency, and respite referrals of qualified individual providers

who have consented to be included in the registry to participants and participants' representatives;

     (ii) Enable participants and participants' representatives to gain improved access to, and

choice among, prospective individual providers, including by having access to information about

individual providers' training, educational background, work experience, and availability for hire;

     (5) Establish provider qualification standards for individual providers, including

undergoing a background check and behavior that would disqualify someone as an individual

provider;

     (6) Establish other appropriate terms and conditions for the workforce of individual

providers without infringing on participants' or their responsible parties' rights and responsibilities

to hire, direct, supervise, and/or terminate the employment of their individual providers;

     (7) Establish an advisory board for participants, their representatives, and advocates, to

communicate directly with the secretary about the provision of quality direct support services.

     (i) The board shall consist of thirteen (13) members:

     (A) One of whom shall be the secretary of the executive office of health and human

services, or a designee, who shall serve as chair;

     (B) Six (6) of whom shall be consumers of the individual provider model, two (2) to be

appointed by the governor, two (2) to be appointed by the president of the senate, and two (2) to

be appointed by the speaker of the house;

     (C) Three (3) of whom shall be representatives from statewide independent living

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centers, one to be appointed by the governor, one to be appointed by the president of the senate,

and one to be appointed by the speaker of the house;

     (D) Three (3) of whom shall be from a 501(c)3 statewide senior advocacy organization,

one to be appointed by the governor, one to be appointed by the president of the senate, and one

to be appointed by the speaker of the house;

     (ii) The board members shall be appointed for three (3) year terms.

     (iii) The board shall advise the secretary, or a designee, regarding issues relating to the

quality, access, and consumer autonomy offered through the individual provider model; and

     (8) Contract with a fiscal intermediary service for the operations of the individual

provider model.

     (d) The secretary's authority in § 40-8.14-4 shall be subject to the state's obligations to

meet and negotiate under § 40-8.15-3 and chapter 7 of title 28, as modified and made applicable

to individual providers under § 40-8.15-3, and to agreements with any exclusive representative of

individual providers, as authorized by § 40-8.15-3. Except to the extent otherwise provided by

law, the secretary shall not undertake activities in subsections (c)(3) and (c)(4) of this section,

prior to October 1, 2019, unless included in a negotiated agreement and an appropriation has been

provided by the legislature to the secretary.

     (e) The secretary shall cooperate in the implementation of chapter 8.15 of title 40 with all

other relevant state departments and agencies. Any entity providing relevant services, including,

but not limited to, providers of fiscal support, fiscal intermediary, financial management, or

similar services to provide support to participants and participants' representatives with regard to

employing individual providers shall assist and cooperate with the secretary in the operations of

this section, including with respect to the secretary's obligations under subsections (b) and (f) of

this section.

     (f) The secretary, or a designee, shall, no later than October 1, 2019, and then quarterly

thereafter, in accordance with rules and regulations promulgated by EOHHS, compile and

maintain a list of the names and addresses of all individual providers who have been paid for

providing direct support services to participants within the previous six (6) months. The list shall

not include the name of any participant, or indicate that an individual provider is a relative of a

participant or has the same address as a participant. The secretary, or a designee agency, shall

share the lists with others as needed for the state to meet its obligations under this chapter and

chapter 8.15 of title 40. This sharing shall not include access to private data on participants or

participants' representatives. Nothing in this section or chapter 8.15 of title 40 shall alter the

access rights of other private parties to data on individual providers.

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     (g) The secretary shall immediately commence all necessary steps to ensure that direct

support services are offered in conformity with this section, to gather all information that may be

needed for promptly compiling lists required under this section, including information from

current vendors, and to complete any required modifications to currently providing direct support

services by October 1, 2019.

     40-8.14-5. Authority of the department of administration.

     In accordance with chapter 8.15 of title 40, the director shall have the authority to:

     (1) Meet and negotiate with any provider representative chosen pursuant to § 40-8.15-

2(a);

     (2) In coordination with the secretary, negotiate over any of the topics in § 40-8.14-4(c)

and any other appropriate matters governing the workforce of individual providers without

infringing on participants' or their responsible parties' rights and responsibilities to hire, direct,

supervise, and/or terminate the employment of their individual providers; and

     (3) Execute a collective bargaining agreement, subject to any approval required under §

40-8.15-5.

     40-8.14-6. Severability.

     Should any part of this chapter be declared invalid or unenforceable, or the enforcement

or compliance with it is suspended, restrained, or barred, either by the state or by the final

judgment of a court of competent jurisdiction, the remainder of this chapter shall remain in full

force and effect.

     SECTION 2. Title 40 of the General Laws entitled "HUMAN SERVICES" is hereby

amended by adding thereto the following chapter:

CHAPTER 8.15

INDIVIDUAL PROVIDERS OF DIRECT SUPPORT SERVICES

     40-8.15-1. Definitions.

     For the purposes of this chapter:

     (1) "Direct support services" has the meaning given to it under § 40-8.14-1.

     (2) "Director" has the meaning given to it under § 40-8.14-1.

     (3) "Individual provider" has the meaning given to it under § 40-8.14-1.

     (4) "Participant" has the meaning given to it under § 40-8.14-1.

     (5) "Participant's representative" has the meaning given to it under § 40-8.14-1.

     (6) "Provider representative" has the meaning given to it under § 40-8.14-1.

     (7) "Secretary" has the meaning given to it under § 40-8.14-1.

     40-8.15-2. Right of individual providers to choose provider representative --

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Subjects of negotiation.

     (a) Individual providers may, in accordance with the procedures set forth in § 40-8.15-7,

choose a provider organization to be their provider representative and to negotiate with the state,

over the terms and conditions of individual providers' participation in providing direct support

services, including, but not limited to:

     (1) Expanding training and professional development opportunities;

     (2) Improving the recruitment and retention of qualified individual providers;

     (3) Reimbursement rates and other economic matters;

     (4) Benefits;

     (5) Payment procedures; and

     (6) A grievance resolution process.

     (b) Nothing in this chapter or in chapter 8.14 of title 40 shall interfere with regulatory

authority of the Rhode Island department of health (RIDOH) over individual providers licensing.

Individual provider licensing shall be excluded from and not subject to the negotiation process

recognized and described in this section.

     (c) Notwithstanding the above, individual providers must operate in conformance with

the relevant sections of the general laws applicable thereto and regulations promulgated by the

state.

     (d) The directors of each department with authority to administer their respective

programs shall work in consultation with the secretary regarding the terms and conditions of

individual providers' participation in their respective programs including, but not limited to, the

terms and conditions in subsection (a) of this section.

     40-8.15-3. Good faith negotiations.

     It shall be the obligation of the director, or a designee, to meet and negotiate in good faith

with the provider representative within thirty (30) days after receipt of written notice from the

provider representative of the request for a meeting for bargaining purposes. This obligation shall

include the duty to cause any agreement resulting from the negotiations to be reduced to a written

contract.

     40-8.15-4. Unresolved issues -- Impasse procedures.

     In the event that the provider representative and the director, or a designee, are unable to

reach an agreement on a contract, or reach an impasse in negotiations, the procedures of §§ 36-

11-7.1 through 36-11-11 shall be followed.

     40-8.15-5. Economic aspects of contract subject to legislative appropriation.

     Any aspects of a contract requiring appropriation by the federal government, the general

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assembly, or revisions to statutes and/or regulations shall be subject to passage of those

appropriations and/or any necessary statutory and/or regulatory revisions.

     40-8.15-6. Duty to represent all individual providers fairly – Deduction of

membership dues and other voluntary deductions.

     (a) A provider organization certified as the provider representative shall represent all

individual providers in the state fairly and without discrimination, without regard to whether or

not the individual provider is a member of the provider organization.

     (b) Each individual provider may choose whether to be a member of the provider

organization. The state, or its designee, shall deduct from payments to care providers membership

dues for individual providers who elect to become members and authorize the deduction of

membership dues, and any other voluntary deductions authorized by individual providers.

     40-8.15-7. Certification and desertification of provider organization.

     (a) Petitions to certify a provider organization to serve as the provider representative of

individual providers, petitions to intervene in such an election, and any other petitions for

investigation of controversies as to representation may be filed with and acted upon by the labor

relations board in accordance with the provisions of chapter 7 of title 28 and the board's rules and

regulations; provided, that any valid petition as to whether individual providers wish to certify or

decertify a provider representative shall be resolved by a secret ballot election among individual

providers, for which the purpose the board may designate a neutral third party to conduct said

secret ballot election.

     (b) The only appropriate unit shall consist of all individual providers in the state.

     (c) For purposes of this section, no individual provider shall be deemed excluded from

the bargaining unit under § 28-7-3(3)(ii) because they provide care to a family member or

because they are in domestic service in a person's home.

     (d) The cost of any certification election held under this section will be split equally

among all the provider organizations that appear on the ballot.

     40-8.15-8. Unfair practices.

     It shall be unlawful for the state to do any of the acts made unlawful under § 28-7-13. It

shall be unlawful for the provider representative to do any of the acts made unlawful under § 28-

7-13.1. Any alleged violation of this provision may be filed with the labor relations board as an

unfair labor practice and considered and ruled upon in accordance with chapter 7 of title 28 and

the board's rules and regulations.

     40-8.15-9. Individual providers not state employees.

     Notwithstanding the state's obligations to meet and negotiate under chapter 7 of title 28,

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nothing in this chapter shall be construed to make individual providers employees of the state for

any purpose, including for the purposes of eligibility for the state employee pension program or

state employee health benefits.

     40-8.15-10. Right of families to select, direct and terminate individual providers.

     Nothing in this chapter shall be construed to alter the rights of families to select, direct,

and terminate the services of individual providers.

     40-8.15-11. Strikes not authorized.

     Individual providers shall not engage in any strike or other collective cessation of the

delivery of direct-support services.

     40-8.15-12. State action exemption.

     The state action exemption to the application of state and federal antitrust laws is

applicable to the activities of individual providers and their provider representative authorized

under this chapter.

     40-8.15-13. Severability.

     Should any part of this chapter be declared invalid or unenforceable, or the enforcement

or compliance with it is suspended, restrained, or barred, either by the state or by the final

judgment of a court of competent jurisdiction, the remainder of this chapter shall remain in full

force and effect.

     SECTION 3. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO HUMAN SERVICES -- QUALITY SELF-DIRECTED SERVICES -- PUBLIC

OFFICERS AND EMPLOYEES -- INDIVIDUAL PROVIDERS OF DIRECT SUPPORT

SERVICES

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     This act would:

     (1) Enable the creation of a public registry of home health aides giving seniors and

individuals living with disabilities another choice when accessing long-term care options;

     (2) Provide that the state would set wage rates and qualification standards for home

health aides on the registry; and

     (3) Provide that these home health aides would have the right to choose to form a union

through an election.

     This act would take effect upon passage.

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