2023 -- H 5991

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LC001993

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

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A N   A C T

RELATING TO HUMAN SERVICES -- QUALITY SELF-DIRECTED SERVICES

     Introduced By: Representatives Slater, Diaz, Cruz, Potter, and Voas

     Date Introduced: March 01, 2023

     Referred To: House Finance

     It is enacted by the General Assembly as follows:

     SECTION 1. This Act shall be known and may be cited as the Personal Choice in Direct-

Support Services Act of 2023.

     (1) The State of Rhode Island is committed to rebalancing the provision of long-term care

away from institutional care and towards a home- and community-based care model by enhancing

consumer-choice consumer choice.

     (2) This chapter operates to merge the Independent Provider program into the Personal

Choice Program so that the State shall have one self-directed program known as the Personal

Choice Program.

     (3) The merger of these programs will further the State’s rebalancing goal by streamlining

the delivery of support services, increasing administrative efficiency, making it easier for

consumers to direct the care that they need, and extending collective bargaining rights to Individual

Providers, which will improve provider recruitment and retention and otherwise strengthen the

program.

     (4) This act does not alter or limit the secretary’s authority to administer the Personal

Choice Program including to adopt rules and operate the program, to determine participant budgets,

to determine eligibility, or to authorize services, except as specifically set forth in this chapter.

     (5) This act does not alter or limit the rights of participants and their representative to select,

direct, and terminate the services of individual providers or to determine individual providers’

wages within a range set by the secretary.

     (6) This act does not alter or impede the administration or delivery of self-directed

programs for individuals with intellectual disabilities, consistent with 210-ricr-50-10-2(b) as it

exists as of the effective date of this act.

     SECTION 2. Sections 40-8.14-1 and 40-8.14-3 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 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 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

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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

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) “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).

     40-8.14-3. Use of employee workforce.

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

     SECTION 3. Section 40-8.15-9 of the General Laws in Chapter 40-8.15 entitled

"Individual Providers of Direct-Support Services" is hereby amended to read as follows:

     40-8.15-9. Individual providers not state employees Employee status of individual

providers.

     (a) The state is the employer of individual providers for the purposes of collective

bargaining over wage ranges and other terms and conditions of employment, as required by this

chapter.

     (b) Notwithstanding the state’s obligations to meet and negotiate under chapter 7 of title

28, nothing Nothing in this chapter shall be construed to make individual providers employees of

the state for any other purpose, including for the purposes of eligibility for the state employee

pension program or state employee health benefits.

     (c) Neither the secretary, the director, nor any other person acting on behalf of the state

shall exercise any authority or take any action that undermines the state’s status as the employer of

individual providers for the purposes specified in subsection (a) of this section.

     SECTION 4. Chapter 40-8.15 of the General Laws entitled "Individual Providers of Direct-

Support Services" is hereby amended by adding thereto the following sections:

     40-8.15-14. Wage ranges.

     (a) The secretary shall set wage ranges for all individual providers. All direct-support

services performed by individual providers must be compensated at a wage that is within the range

set by the secretary for the services provided, but the participant may choose what wage to pay

within the applicable range.

     (b) The wage range may be the subject of collective bargaining as provided in this chapter.

     (c) The secretary may permit participants to set aside a portion of the funds provided by

the secretary to purchase services, equipment and supplies, in accordance with the secretary’s

eligibility criteria. These funds shall not be used for any direct-support services as defined by § 40-

8.14-1.

     (d) The provisions of this section shall take effect on the date of implementation, as

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provided in § 40-8.15-16(c).

     40-8.15-15. Other duties of the executive office for health and human services.

     (a) The secretary shall require every individual provider to complete a mandatory

orientation, pursuant to the secretary’s authority under § 40-8.14-4(c)(2).

     (1) An individual provider who is providing services as of the date of implementation as

defined in § 40-8.15-16(c) must complete the mandatory orientation within one year of the date of

implementation.

     (2)(i) An individual provider who is not providing services as of the date of implementation

as defined in § 40-8.15-16(c) must complete the mandatory orientation before beginning to perform

services as individual providers, except as provided in subsection (a)(2)(ii) of this section.

     (ii) An individual provider who is not already performing services as of the date of

implementation, and is a friend or a family member of the participant, may begin providing services

to the participant without having completed the mandatory orientation; provided that, the

participant has consented in writing to the delayed orientation and the individual provider has

signed a written attestation that they will complete the mandatory orientation within thirty (30) days

of beginning to provide services.

     (b) The secretary shall maintain a registry for individual providers pursuant to its authority

under § 40-8.14-4(c)(4) and shall collaborate with the provider representative to maintain this

registry.

     (c) The provisions of this section shall take effect on the date of implementation, as

provided in § 40-8.15-16(c).

     40-8.15-16. Implementation.

     (a) For purposes of this section, the independent provider (IP) program and the personal

choice program shall have the meanings that were set forth in 210-RICR-50-10-2.2(A)(1) and

(A)(2) as of the effective date of the personal choice in direct-support services act of 2023.

     (b) The secretary shall merge the independent provider (IP) program into the personal

choice program, so that as of the date of implementation the state shall have a single self-directed

program known as the personal choice program.

     (1) The secretary shall make all changes to regulations and practices as needed to

implement this merger.

     (2) The secretary shall, within ninety (90) days of the effective date of the personal choice

in personal choice in direct-support services act of 2023, apply for any necessary federal approvals,

including by submitting any necessary Medicaid state plan amendments to the federal Centers for

Medicare & Medicaid Services.

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     (c) Once the secretary has implemented the merger of the IP program into the personal

choice program, and no later than ninety (90) days after any necessary federal approvals are

obtained, the secretary shall certify that the personal choice in direct-support services act of 2023

has been implemented. The date of that certification shall be the “date of implementation” for all

provisions of this chapter.

     (d) Within thirty (30) days of the effective date of the personal choice in direct-support

services act on 2023, any provider organization that has previously been certified to serve as the

provider representative of any individual providers pursuant to § 40-8.15-7 shall be furnished by

the secretary with contact information for every person who is providing direct-support services

under the personal choice program or the independent provider model as of the effective date of

this act. The secretary shall provide any such provider organization with updated contact

information every thirty (30) days thereafter.

     (e) Any provider organization that has previously been certified to serve as the provider

representative of any individual providers pursuant to § 40-8.15-7 may, prior to the date of

implementation, petition to be certified as the provider representative of the bargaining unit that

will be comprised of all the individual providers in the personal choice program after the date of

implementation. The secretary shall hold an election to determine whether such a provider

organization shall be certified as the provider representative for that bargaining unit upon a ten

percent (10%) showing of interest. All persons who are providing direct-support services under

either the independent provider model or the personal choice program shall be considered part of

the bargaining unit for purposes of the showing of interest and shall be eligible to vote in the

certification election. If a majority of those casting ballots vote to be represented by that provider

organization, then the provider organization shall be certified as the provider representative of all

individual providers in the state as of the date of implementation. The provisions of this chapter

shall otherwise apply.

     (f) Nothing in this act shall be construed to alter or limit the rights of participants and their

representative to select, direct, and terminate the services of individual providers or to determine

individual providers’ wages within a range set by the secretary, or to alter or limit the secretary’s

authority to administer the personal choice program including to adopt rules and operate the

program, to determine participant budgets, to determine eligibility, or to authorize services, except

as specifically set forth in this chapter.

     (g) Nothing in this act shall be construed to affect the administration or delivery of self-

directed programs for individuals with intellectual disabilities, consistent with 210-RICR-50-10-

2(B) as it existed as of the effective date of this act.

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     SECTION 5. 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

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     This act would, relative to the provision of home and community based services, provide

for the merger of the Independent Provider Program into the Personal Choice Program so that the

state has one self-directed program called the Personal Choice Program for direct support services.

     This act would take effect upon passage.

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