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Rhode Island Senate Bill S1030

Rhode Island 2023 Regular Session

Rhode Island Senate Bill S1030 Compare Versions

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5-2023 -- S 1030 SUBSTITUTE A AS AMENDED
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99 S TATE OF RHODE IS LAND
1010 IN GENERAL ASSEMBLY
1111 JANUARY SESSION, A.D. 2023
1212 ____________
1313
1414 A N A C T
1515 RELATING TO HUMAN SERVICES -- QUALITY SELF-DIRECTED SERVICES
1616 Introduced By: Senators Cano, DiPalma, Euer, Lawson, DiMario, Murray, Burke, Mack,
1717 Kallman, and Britto
1818 Date Introduced: May 19, 2023
1919 Referred To: Senate Health & Human Services
2020
2121
2222 It is enacted by the General Assembly as follows:
2323 SECTION 1. This Act shall be known and may be cited as the Personal Choice Self-1
2424 directed Personal Care Services Act of 2023. 2
2525 (1) The State of Rhode Island is committed to rebalancing the provision of long-term care 3
2626 away from institutional care and towards a home- and community-based care model by enhancing 4
2727 self-direction and consumer choice. 5
2828 (2) The purpose of this chapter is to maximize the array of self-directed personal care 6
2929 services available to Medicaid Long-term services and supports (LTSS) participants by merging 7
3030 the Independent Provider program into the Personal Choice Program. Accordingly, upon the 8
3131 implementation date set forth in this act, the Independent Provider program will cease operations; 9
3232 providing, however, that the elements of the Independent Provider program specified in this chapter 10
3333 related to collective bargaining and negotiations for self-directed personal care services are 11
3434 incorporated into the reconstituted Personal Choice program. 12
3535 (3) The merger of these two (2) self-directed programs will further the State’s rebalancing 13
3636 goal by streamlining the delivery of personal care support services, increasing administrative 14
3737 efficiency, making it easier for consumers to self-direct the care they need and want. In addition, 15
3838 by incorporating into the Personal Choice program the collective bargaining rights that were 16
3939 established in the Independent Provider program, the merger will enhance service access, increase 17
4040 the availability of education and training options, and improve the recruitment and retention of the 18
4141 people selected by Medicaid LTSS participants as individual providers. To ensure the merger 19
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4545 realizes these ends, the secretary is directed to facilitate a smooth transition of Independent Provider 1
4646 participants opting to continue self-directed personal care services through the Personal Choice 2
4747 program. At a minimum, at least sixty (60) days prior to the end of operations, the executive office 3
4848 of health and human services must notify enrollees and advise them of their option to change to 4
4949 another home and community-based service option or be auto-transitioned to the Personal Choice 5
5050 program. 6
5151 (4) This act does not alter or limit the secretary’s authority to administer the Personal 7
5252 Choice Program, enforce existing rules, regulations and procedures or adopt amended rules, 8
5353 regulations and procedures for operating the program, determine a participant Medicaid eligibility 9
5454 and appropriateness for self-directed personal care services, or assess the scope, amount and 10
5555 duration of services authorized to meet a participant's needs, except as specifically set forth in this 11
5656 chapter. 12
5757 (5) This act does not alter or limit the rights of participants and their representative to select, 13
5858 direct, and terminate the services of individual providers or to determine the wages of individual 14
5959 providers within a range set by the secretary in implementing regulations once the programs are 15
6060 combined. 16
6161 (6) This act does not alter or impede the administration or delivery of self-directed 17
6262 programs, including those self-directed programs for Medicaid LTSS participants operated by the 18
6363 department of behavioral healthcare, development disabilities and hospitals for individuals with 19
6464 intellectual disabilities. 20
6565 SECTION 2. Sections 40-8.14-1 and 40-8.14-3 of the General Laws in Chapter 40-8.14 21
6666 entitled "Quality Self-Directed Services" are hereby amended to read as follows: 22
6767 40-8.14-1. Definitions. 23
6868 For purposes of this section: 24
6969 (1) “Activities of daily living” (ADL) means the routine activities that people tend to do 25
7070 every day without needing assistance. There are six (6) basic ADLs: eating, bathing, dressing, 26
7171 toileting, transferring (walking), and continence. 27
7272 (2) “Covered home- and community-based services (HCBS)” means any core, preventive, 28
7373 or specialized long-term-care services and supports available in a person’s home or a community-29
7474 based living arrangement that the state is authorized to provide under the Medicaid state plan, the 30
7575 Medicaid section 1115 waiver, or any similar program. 31
7676 (3) “Direct-support services” means the range of home- and community-based services 32
7777 (HCBS) covered services that are identified in the Medicaid state plan, Rhode Island’s section 1115 33
7878 waiver, or any similar program that may provide similar services in the future, and the rules and 34
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8282 regulations promulgated by the executive office of health and human services (EOHHS) or a 1
8383 designated agency authorize individual home-care providers to provide. The direct-support services 2
8484 must be provided in accordance with applicable federal and state law, rules, and regulations and 3
8585 include, but are not limited to, personal care assistance, homemaker, and companion services that 4
8686 the state is authorized to provide under the Medicaid state plan, the Medicaid section 1115 waiver, 5
8787 or any similar program in the future, including: 6
8888 (i) Participant assistance with activities of daily living and instrumental activities of daily 7
8989 living as defined in this chapter; 8
9090 (ii) Assistance with monitoring health status and physical condition; 9
9191 (iii) Assistance with preparation and eating of meals (not the cost of the meal itself); 10
9292 (iv) Assistance with housekeeping activities (bed making, dusting, vacuuming, laundry, 11
9393 grocery shopping, cleaning); 12
9494 (v) Assistance with transferring, ambulation, and use of special mobility devices assisting 13
9595 the participant by directly providing or arranging transportation; and 14
9696 (vi) Other similar, in-home, non-medical long-term services and supports provided to an 15
9797 elderly person or individual with a disability by an individual provider to meet the person’s daily 16
9898 living needs and ensure that the person may adequately function in the person’s home and have 17
9999 safe access to the community. 18
100100 (4) “Director” means the director of the Rhode Island department of administration. 19
101101 (2) "Executive office of health and human services (EOHHS)" means the agency in the 20
102102 executive branch of state government that is designated as the Medicaid single state agency and 21
103103 which, in this capacity, oversees the administration of the Medicaid LTSS program. 22
104104 (5)(3) “Fiscal intermediary” means a third-party organization operating in accordance with 23
105105 applicable federal and state requirements under contract with the EOHHS state that is responsible 24
106106 for performing payroll and other employment-related functions on behalf of the participant as set 25
107107 forth in the implementing regulations for the personal choice program promulgated by the secretary 26
108108 of EOHHS. 27
109109 (i) The fiscal intermediary shall: 28
110110 (A) Be authorized by the secretary or a designated agency to receive and distribute support 29
111111 funds on behalf of a participant in accordance with the participant’s service plan; and 30
112112 (B) Act as a fiscal intermediary on behalf of a participant in compliance with all rules, 31
113113 regulations, and terms and conditions established by the secretary. 32
114114 (ii) The fiscal intermediary shall not make any decisions regarding hiring, supervising, or 33
115115 firing individual providers. 34
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119119 (6)(4) “Individual provider” means an individual selected by and working under the 1
120120 direction of a Medicaid LTSS beneficiary participant or the beneficiary’s participant's duly 2
121121 authorized representative to provide direct-support self-directed personal care services to the 3
122122 participant in accordance with the beneficiary’s service plan, a person-centered plan and the 4
123123 implementing regulations promulgated for the program by the secretary of EOHHS. Individual 5
124124 provider does not mean or but does not include an employee of a provider agency, subject to the 6
125125 agency’s direction and control commensurate with agency employee status or an individual 7
126126 providing services to a participant electing the personal choice option in any program. 8
127127 (7) “Instrumental activities of daily living” means the skills a person needs to live safely 9
128128 and successfully in a residential setting of choice without outside supports. These skills include, 10
129129 but are not limited to, using the telephone, traveling, shopping, preparing meals, doing housework, 11
130130 taking medications properly, and managing money. 12
131131 (8)(5) “Medicaid LTSS beneficiary participant” means a person who has been determined 13
132132 by the state to obtain be eligible for Medicaid-funded long-term services and supports under the 14
133133 Medicaid state plan and/or the RI section 1115 waiver demonstration and/or Medicaid authorities 15
134134 created in the future. 16
135135 (9) “Participant” means a Medicaid LTSS beneficiary who receives direct-support services 17
136136 from an individual provider. 18
137137 (10)(6) “Participant’s representative” means a participant’s legal guardian or an individual 19
138138 having a person who has been designated by the participant or otherwise has the authority and 20
139139 responsibility to act on behalf of a participant with respect to the provision of direct-support self-21
140140 directed services, including the self-directed personal care services subject to this act. 22
141141 (11)(7) “Provider representative” means a provider organization that is certified as the 23
142142 exclusive negotiating representative of individual providers as provided in § 40-8.15-7. 24
143143 (12)(8) “Secretary” means the secretary of the Rhode Island executive office of health and 25
144144 human services (EOHHS). 26
145145 (9) "Self-directed personal care services" means home and community-based personal care 27
146146 services a Medicaid LTSS participant is authorized to self-direct to meet their daily living needs, 28
147147 function adequately at home, safely access the community, or other nonprofessional services under 29
148148 the personal choice program, independent provider program, or any similar program that may 30
149149 provide similar services in the future under the Medicaid state plan, section 1115 demonstration 31
150150 waiver, or future Medicaid authorities promulgated by the secretary. 32
151151 40-8.14-3. Use of employee workforce. 33
152152 The requirement under § 40-8.14-2 shall not restrict the state’s ability to afford participants 34
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156156 and participants’ representatives who choose not to employ an individual provider, or are unable to 1
157157 do so, the option of receiving direct-support personal care services through a personal choice option 2
158158 or through the employees of provider agencies, rather than through an individual provider. 3
159159 Nothing in this chapter shall restrict the state’s ability to afford Medicaid LTSS 4
160160 beneficiaries authorized to receive HCBS-covered services participants with the freedom of choice 5
161161 guaranteed under Title XIX to enter into service delivery agreements with any authorized Medicaid 6
162162 provider. 7
163163 SECTION 3. Section 40-8.15-9 of the General Laws in Chapter 40-8.15 entitled 8
164164 "Individual Providers of Direct-Support Services" is hereby amended to read as follows: 9
165165 40-8.15-9. Individual providers not state employees Duties of the executive office for 10
166166 health and human services. 11
167-(c) Notwithstanding the state’s obligations to meet and negotiate under chapter 7 of title 12
168-28, nothing in this chapter shall be construed to make individual providers employees of the state 13
169-for any purpose, including for the purposes of eligibility for the state employee pension program 14
170-or state employee health benefits. 15
167+Notwithstanding the state’s obligations to meet and negotiate under chapter 7 of title 28, 12
168+nothing in this chapter shall be construed to make individual providers employees of the state for 13
169+any purpose, including for the purposes of eligibility for the state employee pension program or 14
170+state employee health benefits. 15
171171 (a) The secretary has authority over the terms and conditions of individual providers' 16
172172 employment, including compensation as required under § 40-8.15-14, payment, benefit terms, 17
173173 provider qualification standards, other appropriate terms and conditions for the workforce of 18
174174 individual providers without infringing on participants' or participant representatives' rights and 19
175175 responsibilities to hire, direct, supervise, and/or terminate the employment of their individual 20
176176 providers, and orientation, training, and the operation of a registry as required under § 40-8.15-15. 21
177177 (b) The secretary's authority in subsection (a) of this section only applies to self-directed 22
178178 personal care services and is subject to the state's obligation to meet and negotiate with a provider 23
179179 representative pursuant to § 40-8.15-16. 24
180180 SECTION 4. Chapter 40-8.15 of the General Laws entitled "Individual Providers of Direct-25
181181 Support Services" is hereby amended by adding thereto the following sections: 26
182182 40-8.15-14. Wage ranges. 27
183183 (a) The state shall set wage ranges for all individual providers. All self-directed personal 28
184184 care services performed by individual providers must be compensated at a wage that is within the 29
185185 range set by the secretary for the services provided, but the participant may choose what wage to 30
186186 pay within the applicable range. 31
187187 (b) The wage range may be the subject of collective bargaining as provided in this chapter. 32
188188 However, such collective bargaining shall be related solely to self-directed personal care services. 33
189189 All other self-directed services available to personal choice participants other than personal care 34
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193193 are excluded from collective bargaining. 1
194194 (c) The provisions of this section shall take effect on the date of implementation, as 2
195195 provided in § 40-8.15-16(c). 3
196196 40-8.15-15. Other duties of the executive office for health and human services. 4
197197 (a) The secretary shall determine by regulation whether and to what extent individual 5
198198 providers selected by personal choice participants to provide self-directed personal care are 6
199199 required to complete an orientation, pursuant to the secretary’s authority under § 40-8.14-4(c)(2). 7
200200 The secretary shall determine by regulation the specific types of education, experience or training 8
201201 that may be required for an individual provider to be included on a registry of persons qualified to 9
202202 be self-directed individual providers. 10
203203 (1) The subjects of this section shall be collectively bargained with the provider 11
204204 representative. Nothing in this act prohibits a personal choice participant from requiring an 12
205205 individual provider to complete more training or education than is minimally required by the 13
206206 secretary. 14
207207 (b) The secretary shall maintain a registry for individual providers pursuant to its authority 15
208208 under § 40-8.14-4(c)(4) and shall collaborate with the provider representative to maintain this 16
209209 registry. 17
210210 (c) The provisions of this section shall take effect on the date of implementation, as 18
211211 provided in § 40-8.15-16(c). 19
212212 40-8.15-16. Implementation. 20
213213 (a) For purposes of this section, the independent provider (IP) program and the personal 21
214214 choice program shall have the meanings that were set forth in 210-RICR-50-10-2.2(A)(1) and 22
215215 (A)(2) as of the effective date of the personal choice in self-directed personal care services act of 23
216216 2023. 24
217217 (b) The secretary shall merge the independent provider program into the personal choice 25
218218 program, so that as of the date of implementation the independent provider program will cease 26
219219 operations. All new Medicaid LTSS participants seeking self-directed personal care services in a 27
220220 program included under this act will be enrolled in the personal choice program if all necessary 28
221221 requirements are met. The secretary shall transition independent provider participants opting to 29
222222 continue self-direction into the personal choice program no later than the date of their annual 30
223223 reassessment. 31
224224 (1) The secretary shall make all changes to regulations and practices as needed to 32
225225 implement this merger. 33
226226 (2) The secretary within one hundred and twenty (120) days of the effective date of this act 34
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230230 shall apply for any necessary federal approvals, including the submission of any necessary 1
231231 Medicaid state pan amendments to the federal Centers for Medicare & Medicaid Services. 2
232232 (c) Once the secretary has implemented the merger of the programs, and no later than one 3
233233 hundred twenty (120) days after any necessary federal approvals are obtained, the secretary shall 4
234234 certify that the personal choice self-directed personal care services act of 2023 has been 5
235235 implemented. The date of that certification shall be the “date of implementation” for all provisions 6
236236 of this chapter. 7
237237 (d) Within ninety (90) days of the effective date of the personal choice self-directed 8
238238 personal care services act of 2023, any provider organization that has previously been certified to 9
239239 serve as the provider representative of any individual providers pursuant to § 40-8.15-7 shall be 10
240240 furnished by the secretary with contact information for every person providing self-directed 11
241241 personal care services under the personal choice program. The secretary shall provide any such 12
242242 provider organization with updated contact information every sixty (60) days thereafter. 13
243243 (e) Any provider organization that has previously been certified to serve as the provider 14
244244 representative of any individual providers pursuant to § 40-8.15-7 may, prior to the date of 15
245245 implementation, petition to be certified as the provider representative of the bargaining unit that 16
246246 will be comprised of all the individual providers in the personal choice program after the date of 17
247247 implementation. The secretary shall hold an election to determine whether such a provider 18
248248 organization shall be certified as the provider representative for that bargaining unit upon a ten 19
249249 percent (10%) showing of interest. All persons who are providing self-direct services under the 20
250250 personal choice program shall be considered part of the bargaining unit for purposes of the showing 21
251251 of interest and shall be eligible to vote in the certification election. If a majority of those casting 22
252252 ballots vote to be represented by that provider organization, then the provider organization shall be 23
253253 certified as the provider representative to negotiate with the state over the terms and conditions of 24
254254 individual providers' participation in providing self-directed personal care services for all 25
255255 individual providers in the state as of the date of implementation. The provisions of this chapter 26
256256 shall otherwise apply. 27
257257 (f) Nothing in this act shall be construed to alter or limit the rights of participants and their 28
258258 representative to select, direct, and terminate the services of individual providers or to determine 29
259259 individual providers’ wages within a range set by the secretary, or to alter or limit the secretary’s 30
260260 authority to administer the personal choice program including to adopt rules and operate the 31
261261 program, to determine participant budgets, to determine eligibility, or to authorize services, except 32
262262 as specifically set forth in this chapter. 33
263263 (g) Nothing in this act shall be construed to affect the administration or delivery of self-34
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267267 directed programs for individuals with intellectual disabilities. 1
268268 (h) Nothing in this act shall be construed to alter or limit the rights of participants and their 2
269269 representative to select, direct, and terminate the services of individual providers or to determine 3
270270 individual providers' wages within a range set by the secretary, or to alter or limit the secretary's 4
271271 authority to administer the personal choice program, including to adopt rules and operate the 5
272272 program, to determine participant budgets, to determine eligibility, or to authorize services, except 6
273273 as specifically set forth in this chapter. 7
274274 (i) No provision of any agreement or award resulting from collective bargaining and 8
275275 negotiations under this act shall provide for a reduction in Medicaid federal financial participation 9
276276 under Title XIX of the Social Security Act, nor shall any provision of any agreement or award 10
277277 provide for a reduction in the self-directed personal care services for eligible personal choice 11
278278 program Medicaid LTSS participants. Any provision in any agreement or award which would 12
279279 require an additional appropriation in order to maintain the levels of services provided by existing 13
280280 appropriations shall be subject to the annual budget process. 14
281281 SECTION 5. This act shall take effect upon passage. 15
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288288 EXPLANATION
289289 BY THE LEGISLATIVE COUNCIL
290290 OF
291291 A N A C T
292292 RELATING TO HUMAN SE RVICES -- QUALITY SELF-DIRECTED SERVICES
293293 ***
294294 This act would, relative to the provision of home and community based services, provide 1
295295 for the merger of the independent provider program into the personal choice program so that the 2
296296 state has one self-directed program called the personal choice program for direct support services. 3
297297 This act would take effect upon passage. 4
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