PRINTER'S NO. 631
No. 568 Session of 2003
INTRODUCED BY SCHWARTZ, ERICKSON, O'PAKE, COSTA, MUSTO AND TARTAGLIONE, APRIL 4, 2003
REFERRED TO PUBLIC HEALTH AND WELFARE, APRIL 4, 2003
AN ACT 1 Amending the act of July 19, 1979 (P.L.130, No.48), entitled "An 2 act relating to health care; prescribing the powers and 3 duties of the Department of Health; establishing and 4 providing the powers and duties of the State Health 5 Coordinating Council, health systems agencies and Health Care 6 Policy Board in the Department of Health, and State Health 7 Facility Hearing Board in the Department of Justice; 8 providing for certification of need of health care providers 9 and prescribing penalties," further providing for the 10 definition of "health care facility"; providing for the 11 definitions of "activities of daily living," "home care 12 agency," "home care registry," "home health aide," 13 "inspection," "instrumental activities of daily living" and 14 "personal care worker"; further providing for licensure; 15 providing for home care agency and registry consumer rights 16 and protections, for home care agency and registry 17 inspections and plans of correction and for home care agency 18 and registry exemptions; further providing for application 19 for license; and providing for penalties. 20 The General Assembly finds and declares that the licensure of 21 home care agencies and registries that provide services that 22 allow consumers to maintain independent living shall provide for 23 specific consumer protections by establishing oversight, by 24 requiring criminal background checks and communicable disease 25 screenings for individuals referred by a home care agency or 26 registry to provide care and by ensuring the competency of
1 individuals referred by a home care agency or registry to 2 provide care. 3 The General Assembly of the Commonwealth of Pennsylvania 4 hereby enacts as follows: 5 Section 1. The definition of "health care facility" in 6 section 802.1 of the act of July 19, 1979 (P.L.130, No.48), 7 known as the Health Care Facilities Act, amended October 16, 8 1998 (P.L.777, No.95), is amended and the section is amended by 9 adding definitions to read: 10 Section 802.1. Definitions. 11 The following words and phrases when used in this chapter 12 shall have, unless the context clearly indicates otherwise, the 13 meanings given them in this section: 14 "Activities of daily living." The term includes, but is not 15 limited to, services furnished to a person by an employee 16 referred from a home care agency or an independent contractor 17 referred from a registry in the consumer's place of residence or 18 other independent living environment for compensation and which 19 provide assistance to the consumer with home management 20 activities, respite care, companionship services or with 21 personal care which includes, but is not limited to, assistance 22 with self-administered medications, feeding, oral, skin and 23 mouth care, shaving, assistance with ambulation, bathing, hair 24 care and grooming, dressing, toileting and transfer activities. 25 The term does not include services provided by a religious 26 organization for the purpose of providing services exclusively 27 to clergymen or other persons in a religious profession who are 28 members of a religious denomination. 29 * * * 30 "Health care facility." For purposes of Chapter 8, a health 20030S0568B0631 - 2 -
1 care facility includes, but is not limited to, a general, 2 chronic disease or other type of hospital, a home health care 3 agency, a home care agency, a home care registry, a hospice, a 4 long-term care nursing facility, cancer treatment centers using 5 radiation therapy on an ambulatory basis, an ambulatory surgical 6 facility, a birth center regardless of whether such health care 7 facility is operated for profit, nonprofit or by an agency of 8 the Commonwealth or local government. The department shall have 9 the authority to license other health care facilities as may be 10 necessary due to emergence of new modes of health care. When the 11 department so finds, it shall publish its intention to license a 12 particular type of health care facility in the Pennsylvania 13 Bulletin in accordance with the act of June 25, 1982 (P.L.633, 14 No.181), known as the "Regulatory Review Act." The term health 15 care facility shall not include an office used primarily for the 16 private practice of a health care practitioner, nor a program 17 which renders treatment or care for drug or alcohol abuse or 18 dependence unless located within a health facility, nor a 19 facility providing treatment solely on the basis of prayer or 20 spiritual means. The term health care facility shall not apply 21 to a facility which is conducted by a religious organization for 22 the purpose of providing health care services exclusively to 23 clergymen or other persons in a religious profession who are 24 members of a religious denomination. 25 "Home care agency." An organization or part of an 26 organization, exclusive of a home health care agency, that 27 supplies, arranges or schedules employees to provide activities 28 of daily living or instrumental activities of daily living or 29 skilled services on an hourly, shift or continual basis to any 30 consumer in the consumer's place of residence or other 20030S0568B0631 - 3 -
1 independent living environment for which the organization 2 receives a fee, consideration or compensation of any kind. The 3 term shall not include durable medical equipment providers or 4 volunteer providers. 5 "Home care registry." An organization or business entity or 6 part of an organization or business entity that supplies, 7 arranges or refers independent contractors to provide activities 8 of daily living or instrumental activities of daily living or 9 skilled services in the consumer's place of residence or other 10 independent living environment for which the registry receives a 11 fee, consideration or compensation of any kind. 12 "Home health aide." An individual, who in addition to 13 performing instrumental activities of daily living services, can 14 perform additional services including, but not limited to, 15 performing simple measurements and tests to monitor a consumer's 16 medical condition including vital signs, simple urine checks for 17 sugar and albumin and measuring intake and output, assisting 18 with ambulation when a consumer uses an ambulation aide, 19 changing and or reinforcing simple dressings and stable surface 20 wounds, monitoring of dietary habits and preparing special diet 21 meals and assisting in retraining a consumer in self-help 22 skills. 23 * * * 24 "Inspection." An examination by the Department of Health or 25 its representatives, including interviews with the office staff, 26 clients, individuals providing care and review of documents 27 pertinent to initial and continued licensure so that the 28 department may determine whether a home care agency or registry 29 is operating in compliance with licensure requirements. 30 "Instrumental activities of daily living" or "IADL." The 20030S0568B0631 - 4 -
1 term includes, but is not limited to, meal preparation, shopping 2 and errands, telephone use, light housework, laundry and 3 transportation. 4 * * * 5 "Personal care worker." An individual who can assist a 6 consumer with activities of daily living including, but not 7 limited to, bathing, skin care, mouth care, dressing, grooming, 8 toileting, ambulation and transfer, change of position or 9 turning of consumer, feeding and assistance with self- 10 administered medication. 11 Section 2. Section 806 of the act is amended by adding a 12 subsection to read: 13 Section 806. Licensure. 14 * * * 15 (d.1) Home care agency and registry regulations.-- 16 (1) In developing rules and regulations for licensure of 17 home care agencies and registries, the department shall 18 ensure that an individual accepted for referral by a home 19 care agency or registry after the effective date of this 20 subsection shall have the following training or experience 21 prior to referral to consumers: 22 (i) valid nurses license; 23 (ii) successful completion of a nurse aide training 24 program approved by the Commonwealth; 25 (iii) successful completion of a home health aide 26 training program developed by the department or a 27 nonpublic organization and approved by the Commonwealth 28 or successful completion of a competency examination 29 approved by the Commonwealth; 30 (iv) successful completion of a personal care worker 20030S0568B0631 - 5 -
1 training credentialing program developed by the 2 department or a nonpublic organization and approved by 3 the Commonwealth or successful completion of an inclusive 4 competency examination or competency examination on those 5 topics necessary to meet the needs of the consumer 6 approved by the Commonwealth; or 7 (v) for persons performing only IADL services, 8 successful completion of a training program or written 9 skills examination developed by the Commonwealth or a 10 nonpublic organization, and approved by the Commonwealth. 11 Documentation of at least one of subparagraphs (i) through 12 (v) shall be kept in each individual's file in the home care 13 agency or registry office. In addition, documentation of 14 applicable State licensure for any health care practitioner 15 shall be kept on file in the home care agency or registry 16 office. 17 (2) Prior to licensing a home care agency or registry, 18 the department shall ensure that all individuals referred by 19 a home care agency or registry, office staff working for a 20 home care agency or registry and owners of each home care 21 agency or registry shall have criminal history record 22 information, in accordance with the requirements of section 23 503 of the act of November 6, 1987 (P.L.381, No.79), known as 24 the "Older Adults Protective Services Act," on file in the 25 office. If the agency or registry provides services to 26 minors, then prior to the licensing of a home care agency or 27 registry, the department shall ensure that all individuals 28 referred by a home care agency or registry, office staff 29 working for a home care agency or registry and owners of each 30 home care agency or registry shall obtain clearance from the 20030S0568B0631 - 6 -
1 child abuse registry. 2 (3) Prior to referral to consumers, all individuals and 3 any other office staff or contractors with consumer contact 4 shall have documentation in the home care agency or registry 5 files from a physician or other appropriate health care 6 professional that the individual is free of communicable 7 disease including, at a minimum, a tuberculosis screening as 8 outlined by the Department of Health screening guidelines. 9 (4) Ongoing supervision of an employee by a home care 10 agency shall be maintained to insure the employee has the 11 skills needed to provide the care required by the consumer. 12 Section 3. The act is amended by adding sections to read: 13 Section 806.2. Home care agency and registry consumer rights 14 and protections. 15 (a) Consumer protection.--As a condition of licensure, each 16 consumer or the consumer's legal representative or responsible 17 family member shall receive an information packet from the home 18 care agency or registry at the service initiation which shall 19 include the following items to be presented in a form able to be 20 easily understood and read by the consumer: 21 (1) A standardized form developed by the department with 22 information pertaining to: 23 (i) General information about the admission and 24 application process. 25 (ii) Information regarding how to contact and obtain 26 what is required by the department for home care 27 agencies. 28 (iii) Information about availability and access to 29 and contact information for the department's 24-hour 30 hotline. 20030S0568B0631 - 7 -
1 (iv) Details about the department's external 2 complaint mechanisms available to consumers. 3 (2) The consumer's rights as described in this section. 4 (3) A description of the services provided by the agency 5 or registry. 6 (4) A description of the relationship between the 7 consumer, the referred employee or independent contractor and 8 the agency or registry. 9 (5) Description of ongoing supervision maintained by a 10 home care agency to ensure the employee has the skills needed 11 to provide the care required by the consumer. 12 The home care agency or registry shall demonstrate documentation 13 of personal face-to-face interviews with all employees or 14 independent contractors referred by the home care agency or 15 registry and have documentation of at least two satisfactory 16 reference checks prior to referral to consumer. 17 (b) Consumer rights.--Consumers shall have the following 18 rights when receiving service: 19 (1) No individual as a result of their affiliation with 20 an agency or registry may assume power of attorney or 21 guardianship over any consumer. 22 (2) No consumer may be required to endorse checks over 23 to home care agencies or registries. 24 (3) (i) Be involved in a service planning process and 25 to receive services with reasonable accommodation of 26 individual needs and preferences except where the health 27 or safety of the individual direct care worker is at 28 risk. 29 (ii) Have privacy, confidentiality and freedom from 30 abuse, neglect and financial exploitation. 20030S0568B0631 - 8 -
1 (iii) Refuse treatment or services under the plan. 2 (iv) Receive from the home care agency or registry 3 and/or independent contractor five business days' advance 4 written notice of the intent of the home care agency or 5 registry and/or independent contractor to terminate 6 services with the consumer, except where immediate 7 jeopardy as determined by the department to consumers or 8 providers warrants shorter notice. 9 (v) Access the department's 24-hour hotline. 10 (vi) Be free from discrimination on the basis of 11 race, color, religious creed, disability, handicap, 12 ancestry, sexual orientation, national origin, age, sex 13 or protected class. 14 (4) This section shall not apply in any way to private 15 contracts or arrangements entered into by consumers and 16 caregivers as long as those caregivers were not supplied, 17 arranged, scheduled or referred to consumers by a home care 18 agency or registry. 19 Section 806.3. Home care agency and registry inspections and 20 plans of correction. 21 (a) Consent to entry and access.--An application for 22 licensure or the issuance and renewal of any license by the 23 department shall constitute consent by the applicant for the 24 home care agency or registry and the owner of the premises for 25 the department's representatives to enter the premises for the 26 purpose of conducting an inspection during regular business 27 hours. 28 (b) Violations and plan of correction.--If violations are 29 identified as a result of an inspection, the home care agency or 30 registry will be given a report of inspection that clearly 20030S0568B0631 - 9 -
1 outlines the nature of the violation. The home care agency or 2 registry shall submit a written plan of correction in response 3 to the report, stating actions to be taken by the agency or 4 registry to correct the violations and a time frame for those 5 corrective actions. 6 (c) Ensurance of correction.--The department shall ensure 7 that the home care agency or registry has taken steps to correct 8 the violation outlined in the department's report as described 9 in subsection (b). 10 (d) Penalties.--If the department finds after 30 days that 11 the plan of action is not followed and/or the violation not 12 corrected, it shall impose monetary penalties based on the 13 potential risk of harm to consumers, as determined and 14 promulgated by the department. 15 Section 806.4. Home care agency and registry applicability. 16 (a) Exceptions.--If an agency or registry or independent 17 contractor is only performing home and community-based services 18 under a Department of Public Welfare and/or Department of Aging 19 waiver program, it shall be exempt from the requirements of 20 sections 806(d.1), 806.2, 806.3, 807(b)(1) and 808(b), except 21 that it shall be required to have on file for each employee: 22 (1) Criminal history record information, in accordance 23 with the requirements of section 503 of the act of November 24 6, 1987 (P.L.381, No.79), known as the "Older Adults 25 Protective Services Act." If the agency or registry provides 26 services to minors, it shall obtain clearance from the child 27 abuse registry for its employees. 28 (2) Documentation from a physician or other appropriate 29 health care professional that the individual is free of 30 communicable disease, including, at a minimum, a tuberculosis 20030S0568B0631 - 10 -
1 screening as outlined by the Department of Health screening 2 guidelines. 3 (b) Compliance.--If an agency or registry or independent 4 contractor has satisfied subsection (a) pursuant to compliance 5 with waiver requirements, it shall be deemed in compliance with 6 this section. 7 Section 4. Section 807(b) of the act, amended December 18, 8 1992 (P.L.1602, No.179), is amended to read: 9 Section 807. Application for license. 10 * * * 11 (b) Fees.--Application for a license or for renewal of a 12 license shall be accompanied by the following fees: 13 (1) Regular or special license: 14 Home health agency $250.00 15 Home care agency 100.00 16 Registry 100.00 17 Ambulatory surgical facility 250.00 18 Birth center 70.00 19 Long-term care nursing facility 250.00 20 Plus per each long-term care bed in excess of 21 75 beds 2.00 22 Hospital 23 Every two years 500.00 24 Plus per each inpatient bed 25 every two years 4.00 26 Other health care facility 100.00 27 (2) Provisional license all facilities: 28 Provisional I $400.00 29 Plus per each inpatient bed 4.00 30 Provisional II 600.00 20030S0568B0631 - 11 -
1 Plus per each inpatient bed 6.00 2 Provisional III 800.00 3 Plus per each inpatient bed 8.00 4 Provisional IV 1,000.00 5 Plus per each inpatient bed 10.00 6 * * * 7 Section 5. Section 808(b) of the act, amended October 16, 8 1998 (P.L.777, No.95), is amended to read: 9 Section 808. Issuance of license. 10 * * * 11 (b) Separate and limited licenses.--Separate licenses shall 12 not be required for different services within a single health 13 care facility except that home health care, [hospice] home care, 14 hospice, registry or long-term nursing care will require 15 separate licenses. A limited license, excluding from its terms a 16 particular service or portion of a health care facility, may be 17 issued under the provisions of this act. 18 * * * 19 Section 6. This act shall take effect in 90 days. C20L35MSP/20030S0568B0631 - 12 -