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Rhode Island House Bill H5991

Rhode Island 2023 Regular Session

Rhode Island House Bill H5991 Compare Versions

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89 S TATE OF RHODE IS LAND
910 IN GENERAL ASSEMBLY
1011 JANUARY SESSION, A.D. 2023
1112 ____________
1213
1314 A N A C T
1415 RELATING TO HUMAN SERVICES -- QUALITY SELF-DIRECTED SERVICES
1516 Introduced By: Representatives Slater, Diaz, Cruz, Potter, and Voas
1617 Date Introduced: March 01, 2023
1718 Referred To: House Finance
1819
1920
2021 It is enacted by the General Assembly as follows:
2122 SECTION 1. This Act shall be known and may be cited as the Personal Choice Self-1
2223 directed Personal Care Services Act of 2023. 2
2324 (1) The State of Rhode Island is committed to rebalancing the provision of long-term care 3
2425 away from institutional care and towards a home- and community-based care model by enhancing 4
2526 self-direction and consumer choice. 5
2627 (2) The purpose of this chapter is to maximize the array of self-directed personal care 6
2728 services available to Medicaid Long-term services and supports (LTSS) participants by merging 7
2829 the Independent Provider program into the Personal Choice Program. Accordingly, upon the 8
2930 implementation date set forth in this act, the Independent Provider program will cease operations; 9
3031 providing, however, that the elements of the Independent Provider program specified in this chapter 10
3132 related to collective bargaining and negotiations for self-directed personal care services are 11
3233 incorporated into the reconstituted Personal Choice program. 12
3334 (3) The merger of these two (2) self-directed programs will further the State’s rebalancing 13
3435 goal by streamlining the delivery of personal care support services, increasing administrative 14
3536 efficiency, making it easier for consumers to self-direct the care they need and want. In addition, 15
3637 by incorporating into the Personal Choice program the collective bargaining rights that were 16
3738 established in the Independent Provider program, the merger will enhance service access, increase 17
3839 the availability of education and training options, and improve the recruitment and retention of the 18
3940 people selected by Medicaid LTSS participants as individual providers. To ensure the merger 19
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4244 realizes these ends, the secretary is directed to facilitate a smooth transition of Independent Provider 1
4345 participants opting to continue self-directed personal care services through the Personal Choice 2
4446 program. At a minimum, at least sixty (60) days prior to the end of operations, the executive office 3
4547 of health and human services must notify enrollees and advise them of their option to change to 4
4648 another home and community-based service option or be auto-transitioned to the Personal Choice 5
4749 program. 6
4850 (4) This act does not alter or limit the secretary’s authority to administer the Personal 7
4951 Choice Program, enforce existing rules, regulations and procedures or adopt amended rules, 8
5052 regulations and procedures for operating the program, determine a participant Medicaid eligibility 9
5153 and appropriateness for self-directed personal care services, or assess the scope, amount and 10
5254 duration of services authorized to meet a participant's needs, except as specifically set forth in this 11
5355 chapter. 12
5456 (5) This act does not alter or limit the rights of participants and their representative to select, 13
5557 direct, and terminate the services of individual providers or to determine the wages of individual 14
5658 providers within a range set by the secretary in implementing regulations once the programs are 15
5759 combined. 16
5860 (6) This act does not alter or impede the administration or delivery of self-directed 17
5961 programs, including those self-directed programs for Medicaid LTSS participants operated by the 18
6062 department of behavioral healthcare, development disabilities and hospitals for individuals with 19
6163 intellectual disabilities. 20
6264 SECTION 2. Sections 40-8.14-1 and 40-8.14-3 of the General Laws in Chapter 40-8.14 21
6365 entitled "Quality Self-Directed Services" are hereby amended to read as follows: 22
6466 40-8.14-1. Definitions. 23
6567 For purposes of this section: 24
6668 (1) “Activities of daily living” (ADL) means the routine activities that people tend to do 25
6769 every day without needing assistance. There are six (6) basic ADLs: eating, bathing, dressing, 26
6870 toileting, transferring (walking), and continence. 27
6971 (2) “Covered home- and community-based services (HCBS)” means any core, preventive, 28
7072 or specialized long-term-care services and supports available in a person’s home or a community-29
7173 based living arrangement that the state is authorized to provide under the Medicaid state plan, the 30
7274 Medicaid section 1115 waiver, or any similar program. 31
7375 (3) “Direct-support services” means the range of home- and community-based services 32
7476 (HCBS) covered services that are identified in the Medicaid state plan, Rhode Island’s section 1115 33
7577 waiver, or any similar program that may provide similar services in the future, and the rules and 34
7678
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7881 regulations promulgated by the executive office of health and human services (EOHHS) or a 1
7982 designated agency authorize individual home-care providers to provide. The direct-support services 2
8083 must be provided in accordance with applicable federal and state law, rules, and regulations and 3
8184 include, but are not limited to, personal care assistance, homemaker, and companion services that 4
8285 the state is authorized to provide under the Medicaid state plan, the Medicaid section 1115 waiver, 5
8386 or any similar program in the future, including: 6
8487 (i) Participant assistance with activities of daily living and instrumental activities of daily 7
8588 living as defined in this chapter; 8
8689 (ii) Assistance with monitoring health status and physical condition; 9
8790 (iii) Assistance with preparation and eating of meals (not the cost of the meal itself); 10
8891 (iv) Assistance with housekeeping activities (bed making, dusting, vacuuming, laundry, 11
8992 grocery shopping, cleaning); 12
9093 (v) Assistance with transferring, ambulation, and use of special mobility devices assisting 13
9194 the participant by directly providing or arranging transportation; and 14
9295 (vi) Other similar, in-home, non-medical long-term services and supports provided to an 15
9396 elderly person or individual with a disability by an individual provider to meet the person’s daily 16
9497 living needs and ensure that the person may adequately function in the person’s home and have 17
9598 safe access to the community. 18
9699 (4) “Director” means the director of the Rhode Island department of administration. 19
97100 (2) "Executive office of health and human services (EOHHS)" means the agency in the 20
98101 executive branch of state government that is designated as the Medicaid single state agency and 21
99102 which, in this capacity, oversees the administration of the Medicaid LTSS program. 22
100103 (5)(3) “Fiscal intermediary” means a third-party organization operating in accordance with 23
101104 applicable federal and state requirements under contract with the EOHHS state that is responsible 24
102105 for performing payroll and other employment-related functions on behalf of the participant as set 25
103106 forth in the implementing regulations for the personal choice program promulgated by the secretary 26
104107 of EOHHS. 27
105108 (i) The fiscal intermediary shall: 28
106109 (A) Be authorized by the secretary or a designated agency to receive and distribute support 29
107110 funds on behalf of a participant in accordance with the participant’s service plan; and 30
108111 (B) Act as a fiscal intermediary on behalf of a participant in compliance with all rules, 31
109112 regulations, and terms and conditions established by the secretary. 32
110113 (ii) The fiscal intermediary shall not make any decisions regarding hiring, supervising, or 33
111114 firing individual providers. 34
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114118 (6)(4) “Individual provider” means an individual selected by and working under the 1
115119 direction of a Medicaid LTSS beneficiary participant or the beneficiary’s participant's duly 2
116120 authorized representative to provide direct-support self-directed personal care services to the 3
117121 participant in accordance with the beneficiary’s service plan, a person-centered plan and the 4
118122 implementing regulations promulgated for the program by the secretary of EOHHS. Individual 5
119123 provider does not mean or but does not include an employee of a provider agency, subject to the 6
120124 agency’s direction and control commensurate with agency employee status or an individual 7
121125 providing services to a participant electing the personal choice option in any program. 8
122126 (7) “Instrumental activities of daily living” means the skills a person needs to live safely 9
123127 and successfully in a residential setting of choice without outside supports. These skills include, 10
124128 but are not limited to, using the telephone, traveling, shopping, preparing meals, doing housework, 11
125129 taking medications properly, and managing money. 12
126130 (8)(5) “Medicaid LTSS beneficiary participant” means a person who has been determined 13
127131 by the state to obtain be eligible for Medicaid-funded long-term services and supports under the 14
128132 Medicaid state plan and/or the RI section 1115 waiver demonstration and/or Medicaid authorities 15
129133 created in the future. 16
130134 (9) “Participant” means a Medicaid LTSS beneficiary who receives direct-support services 17
131135 from an individual provider. 18
132136 (10)(6) “Participant’s representative” means a participant’s legal guardian or an individual 19
133137 having a person who has been designated by the participant or otherwise has the authority and 20
134138 responsibility to act on behalf of a participant with respect to the provision of direct-support self-21
135139 directed services, including the self-directed personal care services subject to this act. 22
136140 (11)(7) “Provider representative” means a provider organization that is certified as the 23
137141 exclusive negotiating representative of individual providers as provided in § 40-8.15-7. 24
138142 (12)(8) “Secretary” means the secretary of the Rhode Island executive office of health and 25
139143 human services (EOHHS). 26
140144 (9) "Self-directed personal care services" means home and community-based personal care 27
141145 services a Medicaid LTSS participant is authorized to self-direct to meet their daily living needs, 28
142146 function adequately at home, safely access the community, or other nonprofessional services under 29
143147 the personal choice program, independent provider program, or any similar program that may 30
144148 provide similar services in the future under the Medicaid state plan, section 1115 demonstration 31
145149 waiver, or future Medicaid authorities promulgated by the secretary. 32
146150 40-8.14-3. Use of employee workforce. 33
147151 The requirement under § 40-8.14-2 shall not restrict the state’s ability to afford participants 34
148152
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150155 and participants’ representatives who choose not to employ an individual provider, or are unable to 1
151156 do so, the option of receiving direct-support personal care services through a personal choice option 2
152157 or through the employees of provider agencies, rather than through an individual provider. 3
153158 Nothing in this chapter shall restrict the state’s ability to afford Medicaid LTSS 4
154159 beneficiaries authorized to receive HCBS-covered services participants with the freedom of choice 5
155160 guaranteed under Title XIX to enter into service delivery agreements with any authorized Medicaid 6
156161 provider. 7
157162 SECTION 3. Section 40-8.15-9 of the General Laws in Chapter 40-8.15 entitled 8
158163 "Individual Providers of Direct-Support Services" is hereby amended to read as follows: 9
159164 40-8.15-9. Individual providers not state employees Duties of the executive office for 10
160165 health and human services. 11
161-(c) Notwithstanding the state’s obligations to meet and negotiate under chapter 7 of title 12
162-28, nothing in this chapter shall be construed to make individual providers employees of the state 13
163-for any purpose, including for the purposes of eligibility for the state employee pension program 14
164-or state employee health benefits. 15
166+Notwithstanding the state’s obligations to meet and negotiate under chapter 7 of title 28, 12
167+nothing in this chapter shall be construed to make individual providers employees of the state for 13
168+any purpose, including for the purposes of eligibility for the state employee pension program or 14
169+state employee health benefits. 15
165170 (a) The secretary has authority over the terms and conditions of individual providers' 16
166171 employment, including compensation as required under § 40-8.15-14, payment, benefit terms, 17
167172 provider qualification standards, other appropriate terms and conditions for the workforce of 18
168173 individual providers without infringing on participants' or participant representatives' rights and 19
169174 responsibilities to hire, direct, supervise, and/or terminate the employment of their individual 20
170175 providers, and orientation, training, and the operation of a registry as required under § 40-8.15-15. 21
171176 (b) The secretary's authority in subsection (a) of this section only applies to self-directed 22
172177 personal care services and is subject to the state's obligation to meet and negotiate with a provider 23
173178 representative pursuant to § 40-8.15-16. 24
174179 SECTION 4. Chapter 40-8.15 of the General Laws entitled "Individual Providers of Direct-25
175180 Support Services" is hereby amended by adding thereto the following sections: 26
176181 40-8.15-14. Wage ranges. 27
177182 (a) The state shall set wage ranges for all individual providers. All self-directed personal 28
178183 care services performed by individual providers must be compensated at a wage that is within the 29
179184 range set by the secretary for the services provided, but the participant may choose what wage to 30
180185 pay within the applicable range. 31
181186 (b) The wage range may be the subject of collective bargaining as provided in this chapter. 32
182187 However, such collective bargaining shall be related solely to self-directed personal care services. 33
183188 All other self-directed services available to personal choice participants other than personal care 34
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186192 are excluded from collective bargaining. 1
187193 (c) The provisions of this section shall take effect on the date of implementation, as 2
188194 provided in § 40-8.15-16(c). 3
189195 40-8.15-15. Other duties of the executive office for health and human services. 4
190196 (a) The secretary shall determine by regulation whether and to what extent individual 5
191197 providers selected by personal choice participants to provide self-directed personal care are 6
192198 required to complete an orientation, pursuant to the secretary’s authority under § 40-8.14-4(c)(2). 7
193199 The secretary shall determine by regulation the specific types of education, experience or training 8
194200 that may be required for an individual provider to be included on a registry of persons qualified to 9
195201 be self-directed individual providers. 10
196202 (1) The subjects of this section shall be collectively bargained with the provider 11
197203 representative. Nothing in this act prohibits a personal choice participant from requiring an 12
198204 individual provider to complete more training or education than is minimally required by the 13
199205 secretary. 14
200206 (b) The secretary shall maintain a registry for individual providers pursuant to its authority 15
201207 under § 40-8.14-4(c)(4) and shall collaborate with the provider representative to maintain this 16
202208 registry. 17
203209 (c) The provisions of this section shall take effect on the date of implementation, as 18
204210 provided in § 40-8.15-16(c). 19
205211 40-8.15-16. Implementation. 20
206212 (a) For purposes of this section, the independent provider (IP) program and the personal 21
207213 choice program shall have the meanings that were set forth in 210-RICR-50-10-2.2(A)(1) and 22
208214 (A)(2) as of the effective date of the personal choice in self-directed personal care services act of 23
209215 2023. 24
210216 (b) The secretary shall merge the independent provider program into the personal choice 25
211217 program, so that as of the date of implementation the independent provider program will cease 26
212218 operations. All new Medicaid LTSS participants seeking self-directed personal care services in a 27
213219 program included under this act will be enrolled in the personal choice program if all necessary 28
214220 requirements are met. The secretary shall transition independent provider participants opting to 29
215221 continue self-direction into the personal choice program no later than the date of their annual 30
216222 reassessment. 31
217223 (1) The secretary shall make all changes to regulations and practices as needed to 32
218224 implement this merger. 33
219225 (2) The secretary within one hundred and twenty (120) days of the effective date of this act 34
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222229 shall apply for any necessary federal approvals, including the submission of any necessary 1
223230 Medicaid state pan amendments to the federal Centers for Medicare & Medicaid Services. 2
224231 (c) Once the secretary has implemented the merger of the programs, and no later than one 3
225232 hundred twenty (120) days after any necessary federal approvals are obtained, the secretary shall 4
226233 certify that the personal choice self-directed personal care services act of 2023 has been 5
227234 implemented. The date of that certification shall be the “date of implementation” for all provisions 6
228235 of this chapter. 7
229236 (d) Within ninety (90) days of the effective date of the personal choice self-directed 8
230237 personal care services act of 2023, any provider organization that has previously been certified to 9
231238 serve as the provider representative of any individual providers pursuant to § 40-8.15-7 shall be 10
232239 furnished by the secretary with contact information for every person providing self-directed 11
233240 personal care services under the personal choice program. The secretary shall provide any such 12
234241 provider organization with updated contact information every sixty (60) days thereafter. 13
235242 (e) Any provider organization that has previously been certified to serve as the provider 14
236243 representative of any individual providers pursuant to § 40-8.15-7 may, prior to the date of 15
237244 implementation, petition to be certified as the provider representative of the bargaining unit that 16
238245 will be comprised of all the individual providers in the personal choice program after the date of 17
239246 implementation. The secretary shall hold an election to determine whether such a provider 18
240247 organization shall be certified as the provider representative for that bargaining unit upon a ten 19
241248 percent (10%) showing of interest. All persons who are providing self-direct services under the 20
242249 personal choice program shall be considered part of the bargaining unit for purposes of the showing 21
243250 of interest and shall be eligible to vote in the certification election. If a majority of those casting 22
244251 ballots vote to be represented by that provider organization, then the provider organization shall be 23
245252 certified as the provider representative to negotiate with the state over the terms and conditions of 24
246253 individual providers' participation in providing self-directed personal care services for all 25
247254 individual providers in the state as of the date of implementation. The provisions of this chapter 26
248255 shall otherwise apply. 27
249256 (f) Nothing in this act shall be construed to alter or limit the rights of participants and their 28
250257 representative to select, direct, and terminate the services of individual providers or to determine 29
251258 individual providers’ wages within a range set by the secretary, or to alter or limit the secretary’s 30
252259 authority to administer the personal choice program including to adopt rules and operate the 31
253260 program, to determine participant budgets, to determine eligibility, or to authorize services, except 32
254261 as specifically set forth in this chapter. 33
255262 (g) Nothing in this act shall be construed to affect the administration or delivery of self-34
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258266 directed programs for individuals with intellectual disabilities. 1
259267 (h) Nothing in this act shall be construed to alter or limit the rights of participants and their 2
260268 representative to select, direct, and terminate the services of individual providers or to determine 3
261269 individual providers' wages within a range set by the secretary, or to alter or limit the secretary's 4
262270 authority to administer the personal choice program, including to adopt rules and operate the 5
263271 program, to determine participant budgets, to determine eligibility, or to authorize services, except 6
264272 as specifically set forth in this chapter. 7
265273 (i) No provision of any agreement or award resulting from collective bargaining and 8
266274 negotiations under this act shall provide for a reduction in Medicaid federal financial participation 9
267275 under Title XIX of the Social Security Act, nor shall any provision of any agreement or award 10
268276 provide for a reduction in the self-directed personal care services for eligible personal choice 11
269277 program Medicaid LTSS participants. Any provision in any agreement or award which would 12
270278 require an additional appropriation in order to maintain the levels of services provided by existing 13
271279 appropriations shall be subject to the annual budget process. 14
272280 SECTION 5. This act shall take effect upon passage. 15
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278287 EXPLANATION
279288 BY THE LEGISLATIVE COUNCIL
280289 OF
281290 A N A C T
282291 RELATING TO HUMAN SE RVICES -- QUALITY SELF-DIRECTED SERVICES
283292 ***
284293 This act would, relative to the provision of home and community based services, provide 1
285294 for the merger of the independent provider program into the personal choice program so that the 2
286295 state has one self-directed program called the personal choice program for direct support services. 3
287296 This act would take effect upon passage. 4
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