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:

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

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amended by adding thereto the following chapter:

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CHAPTER 8.14

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QUALITY SELF-DIRECTED SERVICES

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     40-8.14-1. Definitions.

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     For purposes of this section:

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

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

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toileting, transferring (walking) and continence.

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

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

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

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the Section 1115 waiver.

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

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

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

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

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

 

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

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

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

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

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

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living as defined in this chapter;

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

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

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

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grocery shopping, cleaning);

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

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the participant by directly providing or arranging transportation; and

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

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

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

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safe access to the community.

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

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

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

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the participant.

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     (i) The fiscal intermediary shall:

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

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

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

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regulations, and terms and conditions established by the secretary.

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

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firing individual providers.

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

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

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

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

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

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participant electing the personal choice option in any program.

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     (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,

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

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housework, taking medications properly, and managing money.

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

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

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

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services from an individual provider.

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

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

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provision of direct support services.

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

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

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

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human services (EOHHS).

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     40-8.14-2. Scope of coverage.

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     Individual providers may provide all authorized HCBS covered services in accordance

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

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applicable federal and state laws and rules and regulations allow.

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     40-8.14-3. Use of employee workforce.

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

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

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

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

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

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

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

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

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

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

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provider to provide direct support services.

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

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

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

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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

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

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     (c) The secretary shall have the authority to:

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

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

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traditional and relevant factors otherwise permitted by law;

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

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

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

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representatives who receive services from individual providers, including opportunities for

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individual providers to obtain certification documenting additional training and experience in

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areas of specialization;

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

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

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

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

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

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

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

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

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

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provider;

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

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

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

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

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

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

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

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

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

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

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be appointed by the speaker of the house;

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     (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,

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

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

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

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to be appointed by the speaker of the house;

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

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

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

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

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provider model.

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

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

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

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

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

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

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provided by the legislature to the secretary.

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

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

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

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

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

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

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this section.

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

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

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

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

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

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

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

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

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

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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

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

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

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

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services by October 1, 2019.

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

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

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

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2(a);

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

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

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

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

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

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40-8.15-5.

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     40-8.14-6. Severability.

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

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

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

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force and effect.

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

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amended by adding thereto the following chapter:

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CHAPTER 8.15

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INDIVIDUAL PROVIDERS OF DIRECT SUPPORT SERVICES

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     40-8.15-1. Definitions.

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     For the purposes of this chapter:

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

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

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

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

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

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

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

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

 

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Subjects of negotiation.

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

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

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

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services, including, but not limited to:

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     (1) Expanding training and professional development opportunities;

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

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     (3) Reimbursement rates and other economic matters;

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     (4) Benefits;

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     (5) Payment procedures; and

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     (6) A grievance resolution process.

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

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

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

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recognized and described in this section.

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

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

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state.

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

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

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

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

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     40-8.15-3. Good faith negotiations.

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

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

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

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

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contract.

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

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

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

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

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

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     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

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

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

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membership dues and other voluntary deductions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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secret ballot election.

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

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

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

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

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

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among all the provider organizations that appear on the ballot.

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     40-8.15-8. Unfair practices.

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

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

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

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

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the board's rules and regulations.

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

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     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

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

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state employee health benefits.

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

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

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and terminate the services of individual providers.

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     40-8.15-11. Strikes not authorized.

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

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delivery of direct-support services.

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     40-8.15-12. State action exemption.

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

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

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under this chapter.

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     40-8.15-13. Severability.

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

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

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

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force and effect.

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     SECTION 3. This act shall take effect upon passage.

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LC005278/SUB A/2

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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:

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

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

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

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health aides on the registry; and

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

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through an election.

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     This act would take effect upon passage.

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LC005278/SUB A/2

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