By Naishtat H.B. No. 1942
75R2485 MCK-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to creating the home and community personal attendant
1-3 services program.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle E, Title 2, Health and Safety Code, is
1-6 amended by adding Chapter 109 to read as follows:
1-7 CHAPTER 109. HOME AND COMMUNITY PERSONAL
1-8 ATTENDANT SERVICES PROGRAM
1-9 Sec. 109.001. DEFINITIONS. In this chapter:
1-10 (1) "Activity of daily living" means a personal care
1-11 activity that is routinely part of daily living, including eating,
1-12 toileting, dressing, grooming, personal hygiene, bathing, and
1-13 transferring.
1-14 (2) "Agency provider service option" means the method
1-15 of providing home and community personal attendant services under
1-16 which a personal attendant is hired, supervised, and evaluated by
1-17 the commission, which is the personal attendant's employer of
1-18 record.
1-19 (3) "Commission" means the Health and Human Services
1-20 Commission.
1-21 (4) "Commissioner" means the commissioner of the
1-22 Health and Human Services Commission.
1-23 (5) "Consumer" means a recipient of home and community
1-24 personal attendant services.
2-1 (6) "Consumer directed" means, in relation to home and
2-2 community personal attendant services, that the consumer may
2-3 select, manage, train, and dismiss a personal attendant regardless
2-4 of who the employer of record is.
2-5 (7) "Designated agency" means the agency designated by
2-6 the commission to develop and manage the home and community
2-7 personal attendant services program.
2-8 (8) "Direct cash reimbursement option" means the
2-9 method of providing home and community personal attendant services
2-10 under which the consumer receives reimbursement for the costs of
2-11 home and community personal attendant services and associated
2-12 employer taxes.
2-13 (9) "Fiscal intermediary" means an Internal Revenue
2-14 Service designee who acts as the employer's agent to perform acts
2-15 required of employers by the Internal Revenue Service, including
2-16 filing income taxes, taxes under the Federal Insurance Contribution
2-17 Act, and unemployment taxes.
2-18 (10) "Functional need" means the need for personal
2-19 assistance based on the abilities and limitations of an individual
2-20 consumer, regardless of age, medical diagnosis, or other category
2-21 of disability.
2-22 (11) "Health-related task" means a task to preserve or
2-23 improve health, including dispensing medication, ventilator care,
2-24 tube feeding, and catheterization, that may be delegated by a
2-25 licensed health care professional under the law regulating
2-26 registered nurses, Chapter 7, Title 71, Revised Statutes, or the
2-27 Medical Practice Act (4495b, Vernon's Texas Civil Statutes).
3-1 (12) "Home and community personal attendant services"
3-2 means services to assist a mentally or physically disabled person
3-3 in accomplishing an activity of daily living, instrumental activity
3-4 of daily living, or health-related task, including personal care
3-5 services, household services, cognitive services, personal safety
3-6 services, and mobility services.
3-7 (13) "Independent living environment" means an
3-8 individual's noninstitutional residence or other setting where the
3-9 individual participates in community activities, including
3-10 education, work, recreation, and community events.
3-11 (14) "Instrumental activity of daily living" means an
3-12 activity that supports an activity of daily living, including
3-13 taking medications, managing money, preparing meals, shopping,
3-14 child care, light housekeeping, using the telephone, or getting
3-15 around the community.
3-16 (15) "Personal attendant" means an individual who
3-17 provides home and community personal attendant services.
3-18 (16) "Respite services" means a temporary support
3-19 option to relieve a primary caregiver in providing care to an
3-20 individual with a disability.
3-21 (17) "Voucher service option" means the method of
3-22 providing home and community personal attendant services under
3-23 which the consumer receives a voucher from the state to pay for the
3-24 home and community personal attendant services.
3-25 Sec. 109.002. HOME AND COMMUNITY PERSONAL ATTENDANT SERVICES
3-26 PROGRAM; PROGRAM REQUIREMENTS. (a) The designated agency shall
3-27 develop a comprehensive program to provide noninstitutional home
4-1 and community personal attendant services to certain disabled
4-2 persons. The home and community personal attendant services
4-3 program shall provide:
4-4 (1) personal care services, including assistance with
4-5 bathing and personal hygiene, dressing, grooming, lifting and
4-6 transferring, feeding, bowel and bladder care, and child care;
4-7 (2) household services, including assistance with meal
4-8 preparation, shopping, cleaning, and laundry;
4-9 (3) cognitive personal services, including assistance
4-10 with money management, use of medications, and cueing activities of
4-11 daily living;
4-12 (4) services to assist consumers with mobility,
4-13 including escort and transportation;
4-14 (5) respite services;
4-15 (6) health-related tasks; and
4-16 (7) other services designed to ensure the well-being
4-17 of the recipient, including case management, training, assistance
4-18 meeting developmental needs, crisis assistance, and assistance with
4-19 implementing behavioral plans.
4-20 (b) The home and community personal attendant services
4-21 program must meet the following minimum standards:
4-22 (1) the program must be consumer directed;
4-23 (2) eligibility for the program must be based on
4-24 functional need;
4-25 (3) services must be provided in an independent living
4-26 environment;
4-27 (4) the program must provide personal assistance 24
5-1 hours a day, seven days a week;
5-2 (5) the program must require consumers whose adjusted
5-3 gross income exceeds 225 percent of the federal poverty level to
5-4 share the cost of the program;
5-5 (6) the program must allow the consumer to enter a
5-6 mutually agreed upon, signed individual service plan;
5-7 (7) the consumer must be given a choice of different
5-8 methods of providing home and community personal attendant services
5-9 including a voucher service option, a direct cash reimbursement
5-10 option, and an agency provider service option;
5-11 (8) the consumer must be offered training on how to
5-12 select, manage, and dismiss a personal attendant, and how to manage
5-13 finances for their home and community personal attendant services;
5-14 (9) the program must inform consumers of their rights
5-15 and options with respect to selecting, managing, and changing their
5-16 individual home and community personal attendant service plan and
5-17 their rights to privacy and confidentiality;
5-18 (10) the program must have a procedure to allow
5-19 consumers who are dissatisfied with the administration of their
5-20 individual home and community personal attendant service plan to
5-21 change personal attendants and appeal any decisions of the
5-22 commission; and
5-23 (11) the program must pay a personal attendant at
5-24 least 150 percent of the federal minimum wage or a comparable daily
5-25 rate and provide to each personal attendant coverage under a health
5-26 benefit plan and other appropriate benefits.
5-27 (c) The designated agency may contract with state, federal,
6-1 or private entities to provide home and community personal
6-2 attendant services under the program established under this
6-3 section.
6-4 (d) Each consumer may select a provider of home and
6-5 community personal attendant services who complies with the
6-6 designated agency's standards.
6-7 (e) The designated agency shall require each provider of
6-8 home and community personal attendant services under the program
6-9 established by this section to comply with the designated agency's
6-10 standards and may disapprove payments under the program to a
6-11 provider that does not comply with the commission's standards.
6-12 Sec. 109.003. TRANSITION PLAN; ADVISORY COMMITTEE. (a) The
6-13 designated agency shall establish an advisory committee to assist
6-14 the designated agency in creating a transition plan to implement
6-15 the home and community personal attendant services program.
6-16 (b) The designated agency shall determine the size of the
6-17 transition plan committee. The designated agency shall appoint the
6-18 members of the transition plan committee to serve at the will of
6-19 the designated agency. The designated agency shall appoint the
6-20 members of the transition plan committee from representatives of
6-21 the following groups:
6-22 (1) the Texas Department of Human Services;
6-23 (2) the Texas Department of Mental Health and Mental
6-24 Retardation;
6-25 (3) the Texas Department on Aging;
6-26 (4) the Texas Rehabilitation Commission;
6-27 (5) the Texas Department of Health;
7-1 (6) the State Independent Living Council;
7-2 (7) the Texas Planning Council for Developmental
7-3 Disabilities;
7-4 (8) members of the public who provide or have a need
7-5 for home and community personal attendant services; and
7-6 (9) advocates representing individuals described by
7-7 Subdivision (8).
7-8 (c) A member of a transition plan committee serves without
7-9 compensation but is entitled to reimbursement of travel expenses
7-10 incurred by the member while conducting the business of the
7-11 committee, as provided in the General Appropriations Act.
7-12 (d) The transition plan committee shall elect a presiding
7-13 officer from among its members.
7-14 (e) The transition plan committee shall meet at the call of
7-15 the presiding officer or the designated agency.
7-16 (f) The transition plan committee shall complete the
7-17 transition plan and submit the plan to the designated agency not
7-18 later than December 1, 1997. The designated agency shall adopt a
7-19 transition plan, after considering the committee's recommended
7-20 plan, not later than January 1, 1998.
7-21 (g) The transition plan shall:
7-22 (1) outline a transition process, with action steps
7-23 and time lines, describing how the state will move from
7-24 institutional services to home and community personal attendant
7-25 services;
7-26 (2) describe a process for consolidating all
7-27 noninstitutional home and community programs funded through the
8-1 Medicaid program and related federal waivers and authorizations,
8-2 the Older Americans Act of 1965 (42 U.S.C. 3001 et seq.), Title XX,
8-3 Social Security Act (42 U.S.C. 1397 et seq.), and state general
8-4 revenue not later than January 1, 2000;
8-5 (3) describe the type of home and community personal
8-6 attendant services to be provided;
8-7 (4) describe the methods of delivery of home and
8-8 community personal attendant services and how those services will
8-9 be provided statewide;
8-10 (5) evaluate the feasibility of providing auxiliary
8-11 services, including durable medical equipment, assistive technology
8-12 and home modifications, when providing those services would be a
8-13 cost-effective alternative to providing home and community personal
8-14 attendant services;
8-15 (6) describe the application process and eligibility
8-16 requirements for the program in accordance with this chapter;
8-17 (7) describe the comprehensive functional assessment
8-18 test to be used to determine eligibility for the program;
8-19 (8) describe the procedures to be used to determine
8-20 the income of the program participants and the amount of copayments
8-21 required under the program;
8-22 (9) describe the method to be used to ensure the
8-23 quality of services provided and safeguard the consumer against
8-24 physical, emotional, or financial abuse, and exploitation;
8-25 (10) describe the process for appealing a decision
8-26 denying eligibility for the program;
8-27 (11) describe how to encourage people to become
9-1 personal attendants; and
9-2 (12) address issues of provider and consumer
9-3 liability, including filing applicable taxes, obtaining workers'
9-4 compensation insurance, and satisfying any applicable regulation of
9-5 the federal Occupational Safety and Health Administration.
9-6 (h) The transition plan committee is abolished and this
9-7 section expires September 1, 1999.
9-8 Sec. 109.004. ELIGIBILITY. (a) An applicant is eligible for
9-9 home and community personal attendant services under this chapter,
9-10 if the applicant has a cognitive, psychiatric, sensory, or physical
9-11 disability, and the applicant:
9-12 (1) has a functional need that limits the applicant's
9-13 ability to perform one or more activities of daily living;
9-14 (2) has a functional need that limits the applicant's
9-15 ability to perform two instrumental activities of daily living;
9-16 (3) requires substantial supervision or episodic or
9-17 short-term crisis assistance; or
9-18 (4) needs assistance to perform health-related tasks.
9-19 (b) The designated agency shall establish a comprehensive
9-20 functional assessment test to assess an applicant's eligibility for
9-21 home and community personal attendant services. The comprehensive
9-22 functional assessment test must test an applicant's ability to
9-23 perform activities of daily living and instrumental activities of
9-24 daily living. The comprehensive functional assessment test must
9-25 include a self-evaluation of the applicant's needs and abilities.
9-26 (c) The designated agency shall perform the comprehensive
9-27 functional assessment test on each applicant for home and community
10-1 personal attendant services.
10-2 Sec. 109.005. INDIVIDUAL SERVICES PLAN. (a) After the
10-3 designated agency determines that an applicant is eligible for the
10-4 program, the designated agency and the applicant shall develop an
10-5 individual home and community personal attendant services plan.
10-6 The individual services plan must be approved by the applicant or
10-7 the applicant's representative.
10-8 (b) The designated agency shall provide the applicant or the
10-9 applicant's representative a signed written copy of the individual
10-10 services plan.
10-11 (c) The individual services plan must:
10-12 (1) list the home and community personal attendant
10-13 services to be provided;
10-14 (2) list the numbers of hours of service to be
10-15 provided;
10-16 (3) identify any alternate sources for personal care
10-17 the consumer uses;
10-18 (4) identify a way for the consumer to use back-up and
10-19 emergency personal attendants;
10-20 (5) state whether the home and community personal
10-21 attendant services will be provided using a voucher service option,
10-22 a direct cash reimbursement option, or an agency provider service
10-23 option;
10-24 (6) identify the frequency of reassessment of the
10-25 functional needs of the consumer;
10-26 (7) provide a method to adjust services and hours when
10-27 a change in need occurs;
11-1 (8) identify the method to coordinate home and
11-2 community personal attendant services with other health care
11-3 services received by the consumer;
11-4 (9) identify the degree and frequency of supervision
11-5 required for the effective delivery of home and community personal
11-6 attendant services;
11-7 (10) state the amount of any copayment for which the
11-8 consumer is responsible;
11-9 (11) state the measures used to assess the quality of
11-10 services; and
11-11 (12) describe the program's complaint and appeals
11-12 procedure.
11-13 Sec. 109.006. QUALITY ASSURANCE AND SAFEGUARDS. The
11-14 designated agency shall periodically review the effectiveness of
11-15 the home and community personal attendant services program. The
11-16 review shall evaluate:
11-17 (1) the quality of the home and community personal
11-18 attendant services provided to a consumer;
11-19 (2) whether the services provided assisted the
11-20 consumer to integrate into the community, increase mobility,
11-21 increase productivity, or provide self-direction;
11-22 (3) whether the services safeguarded the well-being of
11-23 the consumer;
11-24 (4) whether the services achieved the goals of the
11-25 individual services plan;
11-26 (5) whether the services were developed with
11-27 meaningful input by the consumer or the consumer's representative;
12-1 and
12-2 (6) whether the consumer was protected against abuse,
12-3 neglect, and exploitation.
12-4 Sec. 109.007. SHARING COST OF SERVICES; PRIORITY FOR
12-5 INDIGENT CONSUMERS. (a) The designated agency shall develop a
12-6 copayment system for consumers whose adjusted gross income is above
12-7 225 percent of the federal poverty level to share the cost for home
12-8 and community personal attendant services.
12-9 (b) The home and community personal attendant services
12-10 program must give priority to providing services to consumers whose
12-11 income is at or below 225 percent of the federal poverty level.
12-12 Sec. 109.008. RULES. The designated agency shall adopt
12-13 rules to implement and administer this chapter.
12-14 SECTION 2. The Health and Human Services Commission shall
12-15 designate a state agency to develop and administer the home and
12-16 community personal attendant services program created by this Act
12-17 not later than September 15, 1997.
12-18 SECTION 3. If before implementing a provision of this Act
12-19 the Health and Human Services Commission determines that a waiver
12-20 or authorization from a federal agency is necessary for
12-21 implementation, the commission shall request the waiver or
12-22 authorization not later than October 1, 1997, and may delay
12-23 implementing that provision until the waiver or authorization is
12-24 granted.
12-25 SECTION 4. This Act takes effect September 1, 1997.
12-26 SECTION 5. The importance of this legislation and the
12-27 crowded condition of the calendars in both houses create an
13-1 emergency and an imperative public necessity that the
13-2 constitutional rule requiring bills to be read on three several
13-3 days in each house be suspended, and this rule is hereby suspended.