AN ACT Relating to creating a flexible voluntary program to allow family members to provide personal care services to persons with developmental disabilities or long-term care needs under a consumer-directed medicaid service program; amending RCW 74.39A.074, 74.39A.076, 74.39A.240, 74.39A.341, 18.88B.041, and 74.39A.326; adding new sections to chapter 74.39A RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Therefore, the legislature intends to create an optional consumer-directed program for providing personal care services for individuals with long-term care needs or developmental disabilities receiving care from a family member. This program is intended to provide individuals with more flexibility in accessing their benefits and to reduce obstacles for consumers who wish to hire family members to provide their care.

NEW SECTION.  Sec. 2.  A new section is added to chapter 74.39A RCW to read as follows:

The department is directed to develop and implement a consumer-directed medicaid program as provided in chapter . . ., Laws of 2017 (this act). This program is intended to be a voluntary alternative option for individuals with long-term care needs or developmental disabilities who choose to receive personal care services from a family member. The department shall review existing medicaid programs and determine the appropriate waiver to seek from the centers for medicare and medicaid services. The department shall seek stakeholder input on the new consumer-directed program's design to inform its submission of a waiver proposal to the centers for medicare and medicaid services. The department's waiver proposal must be submitted to the centers for medicare and medicaid services by March 1, 2018. By January 1, 2019, and September 1, 2019, the department must submit status reports to the legislature that provide information about the department's activities, program design, necessary statutory changes, barriers to implementation, and estimated implementation date, caseload, and costs. The consumer-directed medicaid program as provided in chapter . . ., Laws of 2017 (this act) must be available to consumers by January 1, 2019.

NEW SECTION.  Sec. 3.  A new section is added to chapter 74.39A RCW to read as follows:

(1) The consumer-directed medicaid program is a voluntary alternative option for consumers who seek to receive personal care services from a family member. The consumer-directed medicaid program must also reduce barriers that prevent consumers from being able to select a family member as their paid personal care or respite provider. The consumer, or his or her representatives, if applicable, must have decision-making authority to recruit, hire and fire, determine wages, train, supervise, and determine other conditions of employment for his or her family member providing personal care and respite services. The consumer, or his or her representatives, or both, must also have decision-making authority over how the medicaid funds in his or her individual budgets are spent.

(2) The consumer-directed medicaid program must include the following characteristics:

(a) A consumer-centered planning process that is directed by the consumer with assistance as needed or desired by a representative of the consumer's choosing. The process must include an assessment and service plan that establishes eligibility, the available budget amount, and the preferences, abilities, needs, and desired measurable outcomes of the consumer. The process may include other persons, freely chosen by the consumer, who are able to serve as important contributors to the process. The planning process must include planning for contingencies such as when a needed service is not provided due to the family member being unavailable. As part of the contingency planning process, an assessment of the risks to the consumer must be completed, and a discussion about how risks will be addressed must be held;

(b) A service plan that specifies the services and supports that are to be furnished to meet the preferences, choices, abilities, and needs of the consumer, and that assists the consumer to direct those services and supports so he or she is able to remain in his or her community; and

(c) An individualized budget that is under the control and direction of either the consumer, or his or her representative, or both. The budget plan is developed using a consumer-centered planning process and is individually tailored in accordance with the consumer's needs and preferences as established in the service plan. The department must describe the method for calculating the dollar values of consumer budgets and define a process for making adjustments to the budget amount when there are significant changes in the consumer's support and service needs.

(3) The program must also include a system of supports to provide information and assistance to consumers to address assessed needs including, but not limited to:

(a) Information regarding how consumer-directed programs work;

(b) Information about a consumer's rights and responsibilities when enrolled in a consumer-directed program;

(c) A consumer may provide training directly to his or her family members or determine training topics that must be completed. The content of the training must be related to the consumer's preferences, care needs, conditions, health, safety, or topics relevant to his or her consumer-centered plan and spending plan under the program. The department may assist consumers by offering voluntary training, including training offered under RCW 74.39A.351, on how to select, manage, train, and dismiss employees. This may include referrals to other agencies, educational institutions, and consumer and community advocacy organizations to obtain information and assistance; and

(d) A consumer must determine the compensation, hours, and working conditions of his or her family members. The hourly wage paid must be at least the state minimum wage.

(4) The department must contract with an independent third party to provide financial management services to assist consumers in exercising their budget authority unless they are able to perform some or all of these functions themselves. Financial management services may include assistance in understanding billing and documentation responsibilities, performance of payroll and employer-related duties, assistance purchasing approved goods and services, tracking and monitoring goods and services purchased and provided, and identifying expenditures that are over or under the budget.

(5) The program must include necessary safeguards to protect the health and welfare of consumers. The program must include a requirement that any family member providing services pass appropriate state and federal criminal background checks to verify that he or she does not have a criminal history that would disqualify him or her from working with vulnerable persons. The family member providing services also must not be listed on any long-term care abuse and neglect registry, child abuse registry, or any other registry or list used by the department to disqualify the person from caring for vulnerable persons.

(6) A consumer must be allowed to disenroll from the program at any time and return to a traditional service delivery system.

(7) For the purposes of this section and section 2 of this act:

(a) "Consumer" means a person who:

(i) Is functionally disabled and eligible for personal care or respite care services under medicaid personal care, community first choice option, community options program entry system, chore services program, new freedom system, or respite care program;

(ii) Is eligible for respite care or residential service and support as a person with developmental disabilities under Title 71A RCW; or

(iii) Is eligible for respite care as defined in RCW 74.13.270.

(b) "Family member" means a person who is related by blood, adoption, or marriage as a child, parent, or sibling, including those relations denoted with the prefix "grand" or "great."

(8) The department shall adopt rules necessary to implement this section.

Sec. 4.  RCW 74.39A.074 and 2012 c 164 s 401 are each amended to read as follows:

(1)(a) Beginning January 7, 2012, except for long-term care workers exempt from certification under RCW 18.88B.041(1) (a) and (f) and, until January 1, 2016, those exempt under RCW 18.88B.041(1)(b), all persons hired as long-term care workers must meet the minimum training requirements in this section within one hundred twenty calendar days after the date of being hired or within one hundred twenty calendar days after March 29, 2012, whichever is later. In computing the time periods in this subsection, the first day is the date of hire or March 29, 2012, whichever is applicable.

(b) Except as provided in RCW 74.39A.076, the minimum training requirement is seventy-five hours of entry-level training approved by the department. A long-term care worker must successfully complete five of these seventy-five hours before being eligible to provide care.

(c) Training required by (d) of this subsection applies toward the training required under RCW 18.20.270 or 70.128.230 or any statutory or regulatory training requirements for long-term care workers employed by community residential service businesses.

(d) The seventy-five hours of entry-level training required shall be as follows:

(i) Before a long-term care worker is eligible to provide care, he or she must complete:

(A) Two hours of orientation training regarding his or her role as caregiver and the applicable terms of employment; and

(B) Three hours of safety training, including basic safety precautions, emergency procedures, and infection control; and

(ii) Seventy hours of long-term care basic training, including training related to core competencies and population specific competencies.

(2) Only training curriculum approved by the department may be used to fulfill the training requirements specified in this section. The department shall only approve training curriculum that:

(a) Has been developed with input from consumer and worker representatives; and

(b) Requires comprehensive instruction by qualified instructors on the competencies and training topics in this section.

(3) Individual providers under RCW 74.39A.270 shall be compensated for training time required by this section.

(4) The department shall adopt rules to implement this section.

Sec. 5.  RCW 74.39A.076 and 2015 c 152 s 2 are each amended to read as follows:

(1) Beginning January 7, 2012, except for long-term care workers exempt from certification under RCW 18.88B.041(1) (a) and (f):

(a) A biological, step, or adoptive parent who is the individual provider only for his or her developmentally disabled son or daughter must receive twelve hours of training relevant to the needs of adults with developmental disabilities within the first one hundred twenty days after becoming an individual provider or within one hundred twenty calendar days after March 29, 2012, whichever is later.

(b) Individual providers identified in (b)(i), (ii), and (iii) of this subsection must complete thirty-five hours of training within the first one hundred twenty days after becoming an individual provider or within one hundred twenty calendar days after March 29, 2012, whichever is later. Five of the thirty-five hours must be completed before becoming eligible to provide care. Two of these five hours shall be devoted to an orientation training regarding an individual provider's role as caregiver and the applicable terms of employment, and three hours shall be devoted to safety training, including basic safety precautions, emergency procedures, and infection control. Individual providers subject to this requirement include:

(i) An individual provider caring only for his or her biological, step, or adoptive child or parent unless covered by (a) of this subsection;

(ii) A person working as an individual provider who provides twenty hours or less of care for one person in any calendar month; and

(iii) A person working as an individual provider who only provides respite services and works less than three hundred hours in any calendar year.

(2) In computing the time periods in this section, the first day is the date of hire or March 29, 2012, whichever is applicable.

(3) Only training curriculum approved by the department may be used to fulfill the training requirements specified in this section. The department shall only approve training curriculum that:

(a) Has been developed with input from consumer and worker representatives; and

(b) Requires comprehensive instruction by qualified instructors.

(4) The department shall adopt rules to implement this section.

Sec. 6.  RCW 74.39A.240 and 2011 1st sp.s. c 21 s 7 are each amended to read as follows:

The definitions in this section apply throughout RCW 74.39A.030 ((and)), 74.39A.095 ((and)), 74.39A.220 through 74.39A.300, and 41.56.026 unless the context clearly requires otherwise.

(1) "Consumer" means a person to whom an individual provider provides any such services.

(2) "Department" means the department of social and health services.

(3) "Individual provider" means a person, including a personal aide, who has contracted with the department to provide personal care or respite care services to functionally disabled persons under the medicaid personal care, community options program entry system, chore services program, or respite care program, or to provide respite care or residential services and support to persons with developmental disabilities under chapter 71A.12 RCW, or to provide respite care as defined in RCW 74.13.270. "Individual provider" does not include a family member providing personal care and respite services to a consumer under the consumer-directed medicaid program created in sections 2 and 3 of this act.

Sec. 7.  RCW 74.39A.341 and 2015 c 152 s 3 are each amended to read as follows:

(1) All long-term care workers shall complete twelve hours of continuing education training in advanced training topics each year. This requirement applies beginning July 1, 2012.

(2) Completion of continuing education as required in this section is a prerequisite to maintaining home care aide certification under chapter 18.88B RCW.

(3) Unless voluntarily certified as a home care aide under chapter 18.88B RCW, subsection (1) of this section does not apply to:

(a) An individual provider caring only for his or her biological, step, or adoptive child;

(b) Registered nurses and licensed practical nurses licensed under chapter 18.79 RCW;

(c) Before January 1, 2016, a long-term care worker employed by a community residential service business;

(d) A person working as an individual provider who provides twenty hours or less of care for one person in any calendar month; ((or))

(e) A person working as an individual provider who only provides respite services and works less than three hundred hours in any calendar year; or

(f) A family member providing personal care and respite services to a consumer under the consumer-directed medicaid program created in sections 2 and 3 of this act.

(4) Only training curriculum approved by the department may be used to fulfill the training requirements specified in this section. The department shall only approve training curriculum that:

(a) Has been developed with input from consumer and worker representatives; and

(b) Requires comprehensive instruction by qualified instructors.

(5) Individual providers under RCW 74.39A.270 shall be compensated for training time required by this section.

(6) The department of health shall adopt rules to implement subsection (1) of this section.

(7) The department shall adopt rules to implement subsection (2) of this section.

Sec. 8.  RCW 18.88B.041 and 2015 c 152 s 1 are each amended to read as follows:

(1) The following long-term care workers are not required to become a certified home care aide pursuant to this chapter:

(a)(i)(A) Registered nurses, licensed practical nurses, certified nursing assistants or persons who are in an approved training program for certified nursing assistants under chapter 18.88A RCW, medicare-certified home health aides, or other persons who hold a similar health credential, as determined by the secretary, or persons with special education training and an endorsement granted by the superintendent of public instruction, as described in RCW 28A.300.010, if the secretary determines that the circumstances do not require certification.

(B) A person who was initially hired as a long-term care worker prior to January 7, 2012, and who completes all of his or her training requirements in effect as of the date he or she was hired.

(ii) Individuals exempted by (a)(i) of this subsection may obtain certification as a home care aide without fulfilling the training requirements in RCW 74.39A.074(1)(d)(ii) but must successfully complete a certification examination pursuant to RCW 18.88B.031.

(b) All long-term care workers employed by community residential service businesses.

(c) An individual provider caring only for his or her biological, step, or adoptive child or parent.

(d) A person working as an individual provider who provides twenty hours or less of care for one person in any calendar month.

(e) A person working as an individual provider who only provides respite services and works less than three hundred hours in any calendar year.

(2) A long-term care worker exempted by this section from the training requirements contained in RCW 74.39A.074 may not be prohibited from enrolling in training pursuant to that section.

(3) The department shall adopt rules to implement this section.

Sec. 9.  RCW 74.39A.326 and 2009 c 571 s 1 are each amended to read as follows:

(1)(a) Except as provided under (b) of this subsection, the department shall not pay a home care agency licensed under chapter 70.127 RCW for in-home personal care or respite services provided under this chapter, Title 71A RCW, or chapter 74.39 RCW if the care is provided to a client by a family member of the client. To the extent permitted under federal law, the provisions of this subsection shall not apply if the family member providing care is older than the client.

(b) The department may, on a case-by-case basis based on the client's health and safety, make exceptions to (a) of this subsection to authorize payment or to provide for payment during a transition period of up to three months. The restrictions under (a) of this subsection do not apply when the care is provided to: (i) A client who is an enrolled member of a federally recognized Indian tribe; or (ii) a client who resides in the household of an enrolled member of a federally recognized Indian tribe.

(2) The department shall take appropriate enforcement action against a home care agency found to have charged the state for hours of service for which the department is not authorized to pay under this section, including requiring recoupment of any payment made for those hours and, under criteria adopted by the department by rule, terminating the contract of an agency that violates a recoupment requirement.

(3) For purposes of this section:

(a) "Client" means a person who has been deemed eligible by the department to receive in-home personal care or respite services.

(b) "Family member" shall be liberally construed to include, but not be limited to, a parent, child, sibling, aunt, uncle, cousin, grandparent, grandchild, grandniece, or grandnephew, or such relatives when related by marriage.

(4) The department shall adopt rules to implement this section. The rules shall not result in affecting the amount, duration, or scope of the personal care or respite services benefit to which a client may be entitled pursuant to RCW 74.09.520 or Title XIX of the federal social security act.

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