2019 -- H 5575

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LC001710

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2019

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A N   A C T

RELATING TO HUMAN SERVICES - QUALITY SELF-DIRECTED SERVICES -

INDIVIDUAL COMPANIONS OF COMPANIONSHIP AND HOMEMAKING SERVICES

     Introduced By: Representatives Serpa, and Ackerman

     Date Introduced: February 27, 2019

     Referred To: House Health, Education & Welfare

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 40-8.14-1, 40-8.14-2, 40-8.14-3, 40-8.14-4 and 40-8.14-5 of the

General Laws in Chapter 40-8.14 entitled "Quality Self-Directed Services" are hereby amended

to read as follows:

     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, the

Medicaid Section 1115 waiver, or any similar program.

     (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 § 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 authorize 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

Medicaid 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 meal 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 the person's daily

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

safe access to the community.

     (1) "Companionship" means fellowship to provide emotional and social support to

homebound clients.

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

     (5)(3) "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.

     (4) "Homemaking" means household chores and related housekeeping services in the

home for the sick, disabled, dependent, or infirm, and as further defined in § 23-17-2(9).

     (6)(5) "Individual provider companion" 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 companionship and homemaking services to the

participant in accordance with the beneficiary's authorized service plan, but does not include an

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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

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

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

housework, taking medications properly, and managing money.

     (8)(6) "Medicaid LTSS beneficiary" means a person who has completed a Medicaid long-

term services and supports application for assistance (DHS-2) and been determined by the state to

obtain Medicaid-funded long-term services and supports.

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

services companionship and homemaking services from an individual provider companion.

     (10)(8) "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 companionship and homemaking services.

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

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

7.

     (12)(10) "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 companions may provide services limited to companionship and

homemaking all authorized HCBS-covered services in accordance with the participant's

authorized service plan at home and other Medicaid certified settings, to the extent the applicable

federal and state laws and rules and regulations allow. Participants shall be excluded from

utilizing the services of a home care provider, home nursing care provider, or hospice provider as

defined in § 23-17-2(8) or from any Medicaid LTSS demonstration project and accountable

care/entity program.

     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

companion, 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 companion.

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     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

Medicaid-contracted provider that is licensed by the department of health. Individual companions

shall be prohibited from simultaneously possessing any department of health license nor shall be

permitted to simultaneously maintain employment with a long-term services and support provider

licensed by the department of health.

     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 companion to provide direct-support services companionship and homemaking 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'

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 companions, in accordance

with chapter 8.15 of this title, provided that these rates may permit individual provider companion

variations based on traditional and relevant factors otherwise permitted by law; provided,

however, that reimbursement rates shall be required to be approved by the general assembly;

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

companions;

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

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

representatives who receive companionship and homemaking services from individual providers

companions, including opportunities for individual providers companions 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

companions 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

choice among, prospective individual providers companions, including by having access to

information about individual providers' companions' training, educational background, work

experience, national criminal background check results, and availability for hire;

     (5) Establish provider companion qualification standards for individual providers

companions, including undergoing a national criminal background check and behavior that would

disqualify someone as an individual provider companion;

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

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

responsibilities to hire, direct, supervise, or terminate the employment of their individual

providers companions;

     (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

companionship and homemaking services.

     (i) The board shall consist of thirteen (13) seventeen (17) 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) Nine (9) of whom shall be consumers of the individual provider model, two

(2) three (3) to be appointed by the governor, two (2) three (3) to be appointed by the president of

the senate, and two (2) three (3) to be appointed by the speaker of the house;

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

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 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 One shall be the state's long-term care ombudsman, or

designee;

     (E) One shall be the executive director of the Rhode Island Partnership for Home Care or

designee;

     (F) One shall be the executive director of the Rhode Island chapter of AARP or designee;

     (G) One shall be the Executive Director of the Senior Agenda Coalition of Rhode Island

or designee.

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

     (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 companion

model; and

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

provider companion model.

     (d) The secretary's authority in this section 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 companions under § 40-8.15-3, and to agreements with any exclusive

representative of individual providers companions, 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 this title 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 companions 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).

     (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 companions who have been

paid for providing direct-support companionship and homemaking 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 this title. This sharing shall not include access

to private data on participants or participants' representatives. Nothing in this section or chapter

8.15 of this title shall alter the access rights of other private parties to data on individual

providers.

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

support companionship and homemaking 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.

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     (h) The secretary will prohibit any individual companion from providing companionship

or homemaking services to a relative of a participant or an individual companion that resides in

the same household as a participant in order to prevent fraud, waste, abuse and neglect. All

participants seeking to utilize an individual companion shall not be restricted from access to any

personal choice waiver program.

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

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

     (1) Meet and negotiate with any provider individual companion 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 companions

without infringing on participants' or their responsible parties' rights and responsibilities to hire,

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

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

40-8.15-5.

     SECTION 2. The title of Chapter 40-8.14 of the General Laws entitled "Quality Self-

Directed Services" is hereby amended to read as follows:

CHAPTER 40-8.14

Quality Self-Directed Services

CHAPTER 40-8.14

QUALITY SELF-DIRECTED SERVICES - INDIVIDUAL COMPANIONS -

COMPANIONSHIP AND HOMEMAKING SERVICES

     SECTION 3. Sections 40-8.15-1, 40-8.15-2, 40-8.15-3, 40-8.15-4, 40-8.15-6, 40-8.15-7,

40-8.15-8, 40-8.15-9, 40-8.15-10, 40-8.15-11 and 40-8.15-12 of the General Laws in Chapter 40-

8.15 entitled "Individual Providers of Direct-Support Services" are hereby amended to read as

follows:

     40-8.15-1. Definitions.

     For the purposes of this chapter:

     (1) "Direct-support Companionship and homemaking 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 companion" 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.

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     (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 -- Subject

of negotiation. Right of individual companions to choose collective bargaining

representative -- Subject of negotiation.

     (a) Individual providers companions may, in accordance with the procedures set forth in

§ 40-8.15-7, individually choose or opt out of a provider collective bargaining organization to be

their provider representative and to negotiate with the state, over the terms and conditions of

individual providers' companions' participation in providing direct-support companionship and

homemaking services, including, but not limited to:

     (1) Expanding training and professional development opportunities;

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

companions;

     (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 companions 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' companions' 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 individual companion 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.

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

     In the event that the provider individual companion 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.

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

membership dues and other voluntary deductions. Duty to represent all individual

companions fairly -- Deduction of membership dues and other voluntary deductions.

     (a) A provider An individual companion organization certified as the provider individual

companion representative shall represent all individual providers companions in the state fairly

and without discrimination, without regard to whether or not the individual provider companion is

a member of the provider individual companion organization.

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

provider individual companion organization. The state, or its designee, shall deduct from

payments to care providers individual companions membership dues for individual providers

companions who elect to become members and authorize the deduction of membership dues, and

any other voluntary deductions authorized by individual providers companions.

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

and decertification of companion organization.

     Petitions to certify a provider an individual companion organization to serve as the

provider individual companion representative of individual providers companions; 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 companions wish to certify or decertify a

provider an individual companion representative shall be resolved by a secret ballot election

among individual providers companions for which purpose the board may designate a neutral

third party to conduct the secret ballot election.

     (b) The only appropriate unit shall consist of all individual providers companions 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 he or she provides 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 individual companion organizations that appear on the ballot.

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     (e) As to deliver conflict-free case management services to participants and participant

representatives, no organized labor organization representing individual companions shall

represent any other collective bargaining unit representing any employees under the secretary or

any health or human service agency of the state or any other contractor of any health or human

service agency of the state.

     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 individual companion 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. Individual companions are not

state employees.

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

nothing in this chapter shall be construed to make individual providers companions 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.

Right of families to select, direct and terminate individual companions.

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

and terminate the services of individual providers companions.

     40-8.15-11. Strikes not authorized.

     Individual providers companions shall not engage in any strike or other collective

cessation of the delivery of direct-support any 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 companions and their provider individual

companion representative authorized under this chapter.

     SECTION 4. 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 -

INDIVIDUAL COMPANIONS OF COMPANIONSHIP AND HOMEMAKING SERVICES

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     This act would make revisions to the provisions of the general laws that protect

beneficiaries from fraud, waste, abuse and neglect, and provides proper state oversight in cases

where long-term services and beneficiaries elect to use an individual companion for the delivery

of Medicaid services.

     This act would take effect upon passage.

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