2008 Initiative Petitions
Approved for Circulation in Missouri
Statutory Amendment to the Revised Statutes of Missouri Relating to Home Care, 2008-025
THE PROPOSED AMENDMENT
Be it enacted by the people of the State of Missouri:
Section A. Eight new sections are enacted, to be known as sections 1, 2, 3, 4, 5, 6, 7 and 8 to read as follows:
Section 1. Title.
This Act shall be known as and may be cited as “The Quality Home Care Act.”
Section 2. Findings and purposes.
The people of the state of Missouri find as follows:
1. Thousands of Missouri senior citizens and people with disabilities continue to live independently in their own homes and avoid placement in institutions such as nursing homes only as the result of the availability of qualified personal care attendants who assist them with the activities of daily living.
2. Many Missouri senior citizens and people with disabilities who could not otherwise afford personal care assistance services in their own homes receive the services with assistance provided by the State and federal governments under the Missouri Consumer Directed Services Program.
3. The United States Supreme Court has mandated that states provide services to persons with disabilities “in community settings rather than in institutions” when remaining in the community is appropriate, consistent with the wishes of the disabled person, and can be reasonably accommodated.
4. In-home care is not only the choice of most senior citizens and people with disabilities, it is less costly than institutional care such as that provided in nursing homes and thus saves Missouri taxpayers significant amounts of money.
5. The Consumer Directed Services Program permits the consumers of these highly intimate and personal services to hire, terminate and supervise the individual providing the services, but it does not currently give consumers any role in setting wage rates for personal care attendants.
6. Personal care attendants generally receive low wages, minimal or no benefits, little if any training, and have no meaningful input into their terms and conditions of employment and no meaningful means of making suggestions for improvements in the Consumer Directed Services Program.
7. The continued availability of quality home care services is threatened by a looming shortage of qualified personal care attendants due to the aging population in the State as well as low wages, a lack of benefits, and high rates of occupational injury. These poor working conditions also contribute to high turnover among personal care attendants that impairs the continuity of care.
8. The safety of home care services is threatened by both the failure of existing safeguards to protect consumers from potentially abusive attendants and lengthy delays in processing background checks as recently documented by the State Auditor.
9. The continued availability of quality, safe home care services can be ensured through the creation of the Missouri Quality Homecare Council with authority to investigate the quality, safety and availability of home care services, recruit eligible personal care attendants, recommend qualifications for personal care attendants, improve the training of personal care attendants, establish a state-wide list of eligible personal care attendants, refer consumers to eligible personal care attendants, engage in collective bargaining with a representative of personal care attendants, and recommend changes in personal care attendants’ wages and benefits to the General Assembly.
Section 3. The Missouri Quality Homecare Council.
1. Effective January 31, 2009, the Missouri Quality Homecare Council is hereby created to insure the availability and improve the quality of home care services by recruiting, training and stabilizing the personal care attendant work force. Expenses of the Council in carrying out its powers and duties shall be paid from any appropriations for that purpose by the General Assembly. The Council shall be assigned to the Department of Health and Senior Services with supervision by the Department extending only to budgeting and reporting as provided by subdivisions (4) and (5) of subsection 6 of section 1 of the Reorganization Act of 1974. Supervision by the Department shall not extend to matters relating to policies, regulatory functions or other matters specifically delegated to the Council by this Act and the Director of the Department or any employee of the Department, either directly or indirectly, shall not participate or interfere with the activities of the Council in any manner not specifically provided by law.
2. The Council shall consist of eleven members appointed by the Governor with the advice and consent of the Senate as follows:
(1) Six members shall be current or former recipients of personal care assistance services under the Consumer Directed Services Program, or its successor program(s). Two of the consumer members shall have received services for a period of at least one year, two shall have received services for a period of at least two years, and two shall have received services for a period of at least three years. In order to insure that at least one of the consumer members has personal knowledge of challenges rural consumers face, at least one of these members shall be a resident of a third class county.
(2) One member shall be a representative of the Missouri Department of Health and Senior Services, or its successor entity.
(3) Two members shall be representatives of Missouri Centers for Independent Living, or their successor entities.
(4) One member shall be a representative of the Governor’s Council on Disabilities, or its successor entity.
(5) One member shall be a representative of the Governor’s Advisory Council on Aging, or its successor entity.
3. Each member of the Council shall serve a term of three years, except the first eleven members who shall serve staggered terms as follows: three recipient members and the Department of Health and Senior Services member shall serve one year terms, two recipient members and one Centers for Independent Living member shall serve two year terms, and one recipient member, one Centers for Independent Living member, and the Council on Disabilities and Advisory Council on Aging members shall serve three year terms. The initial members of the Council shall be appointed by the Governor by March 1, 2009. If a vacancy occurs, the Governor will appoint a replacement for the remainder of the departing member’s term. Commission members shall be eligible for reappointment but shall serve no more than two terms. In making appointments, the Governor shall consider nominations or recommendations from the agencies or groups represented on the Council. Members of the Council shall serve without compensation, but shall be reimbursed their actual and necessary expenses. The Governor may remove a Council member for good cause.
Section 4. The powers and duties of the Council.
The Council shall have the following powers and duties:
1. Assess the size, quality and stability of the homecare workforce in Missouri and the ability of the existing workforce to meet the growing and changing needs of both aging and disabled consumers.
2. Encourage eligible individuals to serve as personal care attendants.
3. Provide training on a voluntary basis, either directly or through contracts, in cooperation with vendors (as defined in section 6.5 below), for prospective and current personal care attendants.
4. Recommend minimum qualifications for personal care attendants to the Department of Health and Senior Services.
5. Establish and maintain a state-wide list of eligible, available personal care attendants, in cooperation with vendors, including attendants available to provide respite and replacement services. In order to facilitate the creation of such a list, all vendors shall provide the Council with the list of persons eligible to be a personal care attendant which vendors are required to maintain under RSMo 208.906.4 and 208.918.1(3). The Council shall insure that all personal care attendants placed on the state-wide list are registered with the family care safety registry as provided in RSMo 210.900 to 210.936 and are not listed on any of the background check lists in the family care safety registry, absent a good cause waiver obtained from the Department pursuant to RSMo 660.317. All consumers seeking personal care attendants, whether or not they are participants in the Consumer Directed Services Program, shall have access to the state-wide list.
6. Provide routine, emergency, respite, and replacement referrals of eligible and available personal care attendants to vendors and consumers.
7. In cooperation with the Missouri State Highway Patrol, the Department of Social Services’ Children’s Division, the Department of Mental Health, the Department of Health and Senior Services, and vendors and on an on-going basis, assess existing mechanisms for preventing abuse and neglect of consumers in the home care setting and recommend improvements to those agencies and the General Assembly. As part of this duty, members and employees of the Council shall have access to the Employee Disqualification List established in RSMo 660.315 and the Family Care Safety Registry. Members and employees of the Council shall report to the Department of Health and Senior Services when they have reasonable cause to believe that a consumer has been abused or neglected as defined in RSMo 660.250 subject to the same standards set forth in RSMo 208.912.
8. Recommend the wage rate or rates to be paid personal care attendants and any economic benefits to be received by personal care attendants to the General Assembly. The Department shall retain its existing authority to establish the Medicaid reimbursement rate for personal care assistance services under RSMo 208.903.2.
9. Establish other terms and conditions of employment of personal care attendants consistent with consumers’ right to hire, fire, train, and supervise personal care attendants.
10. Cooperate with the Department of Health and Senior Services and vendors to improve the provision of personal care assistance services.
11. In carrying out its powers and duties under this Act, the Council may:
(1) Make and execute contracts and all other instruments necessary or convenient for the performance of its duties or exercise of its powers;
(2) Issue rules under the Missouri Administrative Procedures Act, Chapter 536, RSMo, as necessary for the purposes and policies of this Act. Any rule or portion of a rule, as that term is defined in section 536.010, RSMo, that is created under the authority delegated in this section, shall become effective only if it complies with and is subject to all of the provisions of chapter 536, RSMo, and, if applicable, section 536.028, RSMo. This section and chapter 536, RSMo, are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536, RSMo, to review, to delay the effective date, or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2008, shall be invalid and void;
(3) Establish offices, employ an Executive Director and such other staff as is necessary to carry out its functions and fix their compensation, retain contractors as necessary and prescribe their duties and power, incur expenses, and create such liabilities as are reasonable and proper for the administration of this act;
(4) Solicit and accept for use any grant of money, services or property from the federal government, the state, or any political subdivision or agency thereof, including federal matching funds under Title XIX of the federal Social Security Act, and do all things necessary to cooperate with the federal government, the State, or any political subdivision or agency thereof in making an application for any grant;
(5) Keep records and engage in research and the gathering of relevant statistics;
(6) Acquire, hold, or dispose of personal property or any interest therein, and contract for, lease, or otherwise provide facilities for the activities conducted under this measure;
(7) Sue and be sued in its own name;
(8) Delegate to the appropriate persons the power to execute contracts and other instruments on its behalf and delegate any of its powers and duties if consistent with the purposes of this act; and
(9) Do other acts necessary or convenient to execute the powers expressly granted to it.
Section 5. Consumer rights and employment relations.
1. Consumers shall retain the right to hire, fire, supervise, and train personal care attendants.
2. Vendors shall continue to perform the functions provided in RSMo 208.900-208.930. In addition to having a philosophy that promotes the consumer's ability to live independently in the most integrated setting or the maximum community inclusion of persons with physical disabilities, as required by RSMo 208.918.1, vendors shall provide to consumers advocacy, independent living skills training, peer counseling, and information and referral services, as those terms are used in RSMo 178.656.3.
3. The Council shall be a public body as that term is used in RSMo 105.500 and personal care attendants shall be employees of the Council solely for purposes of RSMo 105.500 et seq.
4. The sole appropriate unit of personal care attendants, as that term is used in RSMo. 105.500(1) shall be a state-wide unit. Personal care attendants who are related to or members of the family of the consumer to whom they provide services shall not for that reason be excluded from the unit. The State Board of Mediation shall conduct an election, by mail ballot, to determine whether an organization shall be designated the exclusive bargaining representative as defined in RSMo 105.500(2) for the state-wide unit of personal care attendants under RSMo 105.525 upon a showing that ten percent of the personal care attendants in said unit want to be represented by a representative. The Missouri Office of Administration shall represent the Council in any collective bargaining with a representative of personal care attendants. Upon completion of bargaining, any agreements shall be reduced to writing and presented to the Council for adoption, modification or rejection in accordance with RSMo 105.520.
5. The State of Missouri and all vendors shall cooperate in the implementation of any agreements reached by the Council and any representative of personal care attendants, including making any payroll deductions authorized by the agreements which can lawfully be made pursuant to agreements entered into under RSMo 105.500 to 105.530 as currently construed by the Missouri Appellate Courts.
6. Personal care attendants shall not have the right to strike and breach of this prohibition will result in disqualification from participation in the Consumer Directed Services Program.
- Personal care attendants shall not be considered employees of the State of Missouri or any vendor for any purpose.
Section 6. Definitions.
As used in this act:
1. Council means the Missouri Quality Homecare Council.
2. Department means the Missouri Department of Health and Senior Services.
3. Personal care attendant means a person, other than a consumer’s spouse, providing consumer-directed personal care assistance services as defined in RSMo 208.900(2) and (5) under RSMo 208.900-208.927, similar consumer-directed personal care assistance services under RSMo 208.930, and similar consumer-directed personal care assistance services through a program operated pursuant to a waiver obtained under section 1915(c) of the federal Social Security Act or similar consumer-directed services under the successor to any of said programs.
4. Consumer means a person receiving personal care assistance services from a personal care attendant as defined in section 6.3.
5. Vendor is defined in RSMo 208.900(10) and in Section 5.2.
Section 7. Federal approval and funding.
The Council and the State of Missouri shall take all actions reasonably necessary to obtain any approval from the United States needed to implement any part of this act and to insure continued federal funding of any program governed by this act.
Section 8. Severability.
If any section, subsection, subdivision, paragraph, sentence, or clause of this act is held to be invalid or unconstitutional, such decision shall not affect any remaining portion, section, or part thereof which can be given effect without the invalid provision.
EXPLANATION: New matter enacted and intended to be included in the law is shown underlined thus.