S 1273 ISCommentsClose CommentsPermalink

112th CONGRESSCommentsClose CommentsPermalink

1st SessionCommentsClose CommentsPermalink

S. 1273CommentsClose CommentsPermalink

To amend the Fair Labor Standards Act with regard to certain exemptions under that Act for direct care workers and to improve the systems for the collection and reporting of data relating to the direct care workforce, and for other purposes.CommentsClose CommentsPermalink

IN THE SENATE OF THE UNITED STATESCommentsClose CommentsPermalink

June 23, 2011CommentsClose CommentsPermalink

Mr. CASEY (for himself, Mr. HARKIN, and Mr. SANDERS) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and PensionsCommentsClose CommentsPermalink

A BILLCommentsClose CommentsPermalink

To amend the Fair Labor Standards Act with regard to certain exemptions under that Act for direct care workers and to improve the systems for the collection and reporting of data relating to the direct care workforce, and for other purposes.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Direct Care Job Quality Improvement Act of 2011’.CommentsClose CommentsPermalink

SEC. 2. FINDINGS.

Congress finds that--CommentsClose CommentsPermalink





(1) direct care workers are the linchpin of the Nation’s paid long-term care system, providing essential care and daily living services to many of the approximately 10,000,000 Americans who are elderly or live with disabilities;CommentsClose CommentsPermalink





(2) more than two-thirds of older adults will need some form of long-term care at some point in their lives and by 2020, 15,000,000 Americans are expected to need such care;CommentsClose CommentsPermalink





(3) the ability to meet the Nation’s need for long-term care services and supports depends largely on a strong, stable direct care workforce;CommentsClose CommentsPermalink





(4) the United States faces an impending shortage of qualified direct care workers to provide personal and long-term care and support services;CommentsClose CommentsPermalink





(5) direct care work is demanding, working conditions are often difficult, and turnover is high because of low pay, lack of access to health insurance and other benefits, inadequate training, limited opportunities for advancement, and lack of respect;CommentsClose CommentsPermalink





(6) direct care workers are often underpaid: 45 percent of direct care workers live at or below the poverty level, and nearly half live in households that receive one or more public benefits;CommentsClose CommentsPermalink





(7) the average annual income for direct care workers is $17,000, and more than 1 in 4 of such workers lack health insurance; andCommentsClose CommentsPermalink





(8) State management information systems are rarely designed to gather and report basic information about the direct care workforce that could be used to assess workforce challenges or monitor changes in the direct care workforce over time.CommentsClose CommentsPermalink

SEC. 3. LIMITATION TO EXEMPTION UNDER THE FAIR LABOR STANDARDS ACT.

(a) Home Care Workers- Section 13(a)(15) of the Fair Labor Standards Act of 1938 (29 U.S.C. 213(a)(15)) is amended to read as follows:CommentsClose CommentsPermalink





‘(15) any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed on a casual basis in domestic service employment to provide companionship services for individuals who (because of age, infirmity, or disability) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary);’.CommentsClose CommentsPermalink





(b) Definition- Section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203) is amended by adding at the end the following:CommentsClose CommentsPermalink





‘(z) The term ‘casual basis in domestic service employment to provide companionship services’ means employment which is irregular or intermittent, and which is not performed by an individual--CommentsClose CommentsPermalink





‘(1) whose vocation is the provision of companionship services; orCommentsClose CommentsPermalink





‘(2) who is employed by an employer or agency other than the family or household using the services of such employer or agency.CommentsClose CommentsPermalink





Employment is not on a casual basis if any family or household employer employs an individual performing companionship services for more than five (5) hours per week or has employed the individual for a time period that has extended beyond twelve (12) weeks in a calendar year.’.CommentsClose CommentsPermalink

SEC. 4. LONG-TERM SERVICES AND SUPPORTS.

(a) Direct Care Workforce Monitoring Program-CommentsClose CommentsPermalink





(1) IN GENERAL- The Secretary, in cooperation with the heads of other relevant departments, shall develop a program to monitor the capacity and adequacy of the direct care workforce in all relevant, as determined by the Secretary, Federal health care programs (as defined in section 1128B(f) of the Social Security Act (42 U.S.C. 1320a-7b(f)).CommentsClose CommentsPermalink





(2) MONITORING AND EVALUATION- Under the program described in paragraph (1), the Secretary shall monitor and evaluate--CommentsClose CommentsPermalink





(A) the quality of services provided by direct care workers through Federal health care programs, including in-home and community-based settings and in long-term care settings; andCommentsClose CommentsPermalink





(B) the adequacy of the direct care workforce to provide services through such programs, including--CommentsClose CommentsPermalink





(i) the stability of such workforce, including turnover rates;CommentsClose CommentsPermalink





(ii) an evaluation of geographic variation in the adequacy of such workforce; andCommentsClose CommentsPermalink





(iii) the adequacy of such workforce to meet the current and future demand for long-term services and supports under such programs.CommentsClose CommentsPermalink





(3) DATA SHARING- For purposes of improving the adequacy of the direct care workforce and quality of services provided by such workforce through Federal health care programs, the Secretary shall--CommentsClose CommentsPermalink





(A) facilitate the sharing of data on such workforce between relevant Federal departments and between States;CommentsClose CommentsPermalink





(B) prepare cross-State comparisons of such data and share such comparisons with States; andCommentsClose CommentsPermalink





(C) share with States and Federal departments best practices for developing an adequate workforce that provides high-quality direct care services.CommentsClose CommentsPermalink





(b) Reporting on Workforce Adequacy Under Medicaid-CommentsClose CommentsPermalink





(1) IN GENERAL- Section 1902(a) of the Social Security Act (42 U.S.C. 1396a(a)) is amended--CommentsClose CommentsPermalink





(A) by striking ‘and’ at the end of paragraph (82);CommentsClose CommentsPermalink





(B) by striking the period at the end of paragraph (83) and inserting ‘; and’; andCommentsClose CommentsPermalink





(C) by inserting after paragraph (83) the following:CommentsClose CommentsPermalink





‘(84) provide that the State shall submit to the Secretary an annual report that, with respect to both the current and future needs of individuals who are enrolled in the State plan for long-term care services and supports, details the capacity and adequacy of the direct care workforce (as such term is defined in subsection (ll)) in the State (including specifying the number of full-time and part-time direct care workers, the turnover rate for such workers, the number of vacancies for such workers, the average wage for such workers; the typical benefits package offered to such workers, and any other data related to the direct care workforce in the State that the Secretary requires).’.CommentsClose CommentsPermalink





(2) DEFINITIONS AND EXCEPTION FROM WAIVER- Section 1902 of the Social Security Act is further amended by adding at the end the following:CommentsClose CommentsPermalink





‘(ll) Direct Care Workers-CommentsClose CommentsPermalink





‘(1) DEFINITIONS- For purposes of this subsection and subsection (a)(84):CommentsClose CommentsPermalink





‘(A) DIRECT CARE WORKER- The term ‘direct care worker’ has the meaning given each of the following terms in the 2010 Standard Occupational Classifications of the Department of Labor: Home Health Aides [31-1011], Psychiatric Aides [31-1013], Nursing Assistants [31-1014], and Personal Care Aides [39-9021].CommentsClose CommentsPermalink





‘(B) DIRECT CARE WORKFORCE- The term ‘direct care workforce’ means the workforce made up of direct care workers.CommentsClose CommentsPermalink





‘(2) EXEMPTION FROM WAIVER- In the case of any State that is providing medical assistance to residents of such State under a waiver granted under section 1115 or section 1915, the Secretary shall require the State to submit the report required under subsection (a)(84) in the same manner as the State would be required to submit such report if the State had in effect a plan approved under this title.’.CommentsClose CommentsPermalink





(3) EFFECTIVE DATE-CommentsClose CommentsPermalink





(A) IN GENERAL- Except as provided in subparagraph (B), the amendments made by this subsection shall take effect 180 days after the date of the enactment of this Act.CommentsClose CommentsPermalink





(B) RULE FOR CHANGES REQUIRING STATE LEGISLATION- In the case of a State plan for medical assistance under title XIX of the Social Security Act that the Secretary determines requires State legislation (other than legislation appropriating funds) in order for the plan to meet the additional requirement imposed by the amendments made by this subsection, the State plan shall not be regarded as failing to comply with the requirements of such title solely on the basis of the failure of the State to meet this additional requirement before the first day of the first calendar quarter beginning after the close of the first regular session of the State legislature that begins after the date of the enactment of this Act. For purposes of the previous sentence, in the case of a State that has a 2-year legislative session, each year of such session shall be deemed to be a separate regular session of the State legislature.CommentsClose CommentsPermalink

SEC. 5. PRIORITIZING ANALYSIS BY NATIONAL HEALTH CARE WORKFORCE COMMISSION.

(a) Additional High Priority Area- Subparagraph (A) of section 5101(d)(4) of the Patient Protection and Affordable Care Act (42 U.S.C. 294q(d)(4)) is amended by adding at the end the following:CommentsClose CommentsPermalink





‘(vi) With respect to the direct care workforce--CommentsClose CommentsPermalink





‘(I) a review of current and projected workforce supply and demand, including a review of workforce size, employment settings, turnover, compensation, and benefits;CommentsClose CommentsPermalink





‘(II) an analysis of the adequacy of existing workforce data, data collection, and monitoring infrastructure; andCommentsClose CommentsPermalink





‘(III) recommendations for new or additional uniform data elements across regions and States that are necessary to track workforce supply, demand, and shortages.’.CommentsClose CommentsPermalink





(b) Application- The amendment made by paragraph (1) applies beginning with the reports required by section 5101(d)(2) of the Patient Protection and Affordable Care Act (42 U.S.C. 294q(d)(2)) for 2011.CommentsClose CommentsPermalink

SEC. 6. GRANTS AND TECHNICAL ASSISTANCE FOR DATA COLLECTION AND MONITORING.

(a) In General- The Secretary shall award grants to States, Indian tribes, and tribal organizations for the purpose of developing comprehensive data collection and monitoring systems to assess the adequacy and stability of the direct care workforce of the State or Indian tribe, as applicable, to meet current and future demand for long-term services and supports.CommentsClose CommentsPermalink





(b) Use of Funds- A State, Indian tribe, or tribal organization receiving a grant under subsection (a) shall use the grant for--CommentsClose CommentsPermalink





(1) an assessment of current data sources and data gaps on the volume, stability, and compensation of the State or tribe’s direct care workforce across all settings and programs;CommentsClose CommentsPermalink





(2) consultation with all agencies of the State, Indian tribe, or tribal organization that collect data on the direct care workforce, or data on programs under which services are provided in connection with the direct care workforce, in order to streamline data collection;CommentsClose CommentsPermalink





(3) the development of an implementation plan for establishing a comprehensive and ongoing program for monitoring the volume, stability, and compensation of the direct care workforce;CommentsClose CommentsPermalink





(4) the implementation of such program;CommentsClose CommentsPermalink





(5) the sharing of information on best practices on data collection and monitoring with other States, Indian tribes, or tribal organizations; andCommentsClose CommentsPermalink





(6) the formulation of recommendations for appropriate steps to reduce State, local, or tribal barriers to comprehensive direct care workforce data collection and monitoring systems, including any necessary changes in State, local, or tribal policies.CommentsClose CommentsPermalink





(c) Distribution of Grants-CommentsClose CommentsPermalink





(1) NUMBER OF GRANTS- In carrying out subsection (a) the Secretary shall award grants to not fewer than 5 States each year.CommentsClose CommentsPermalink





(2) GEOGRAPHIC AND DEMOGRAPHIC DIVERSITY- In selecting grant recipients under subsection (a), the Secretary shall ensure that grants are awarded to a diversity of grantees in terms of geography and demographics.CommentsClose CommentsPermalink





(3) PREFERENCE- In selecting grant recipients under subsection (a), the Secretary shall give preference to States, Indian tribes, and tribal organizations with a relatively high percentage of residents who require publicly financed long-term services.CommentsClose CommentsPermalink





(d) Application- To apply for a grant under this section, an entity shall submit an application to the Secretary in such form, in such manner, and containing such information as the Secretary may require. At a minimum, each such application shall include a description of the activities for which funds are sought and a budget for use of the funds.CommentsClose CommentsPermalink





(e) Technical Assistance- The Secretary shall provide technical assistance to States, Indian tribes, and tribal organizations to develop comprehensive data collection and monitoring systems to assess the adequacy and stability of the State’s direct care workforce under subsection (b)(1).CommentsClose CommentsPermalink





(f) State Defined- For purposes of this section:CommentsClose CommentsPermalink





(1) Subject to paragraph (2), the term ‘State’ means any of the 50 States, the District of Columbia, Puerto Rico, Guam, the United States Virgin Islands, American Samoa, and the Commonwealth of the Northern Mariana Islands.CommentsClose CommentsPermalink





(2) The term ‘State’ includes, in lieu of any State listed in paragraph (1), an entity designated by such State to apply for a grant under this section.CommentsClose CommentsPermalink





(g) Authorization of Appropriations- There are authorized to be appropriated such sums as may be necessary to carry out this section for each of fiscal years 2012 through 2016.CommentsClose CommentsPermalink

SEC. 7. DIRECT CARE WORKER RECRUITMENT, RETENTION, AND EDUCATION GRANT PROGRAM.

(a) In General- The Secretary shall award grants on a competitive basis to States and other eligible entities for the purpose of improving the recruitment, retention, and education of direct care workers.CommentsClose CommentsPermalink





(b) Use of Funds- A State or other eligible entity receiving a grant under subsection (a) shall use the grant to--CommentsClose CommentsPermalink





(1) establish, expand, or upgrade training programs and infrastructure for direct care workers;CommentsClose CommentsPermalink





(2) establish or expand recruitment and retention programs for direct care workers, including initiatives which--CommentsClose CommentsPermalink





(A) improve the wages and benefits offered to direct care workers; andCommentsClose CommentsPermalink





(B) create and implement career ladders for such workers; andCommentsClose CommentsPermalink





(3) develop or expand programs that--CommentsClose CommentsPermalink





(A) promote the role of direct care workers in new cost-effective models of providing services to persons with disabilities and to persons with chronic health conditions and other extended support needs; andCommentsClose CommentsPermalink





(B) include approaches such as remote monitoring, wellness, and prevention.CommentsClose CommentsPermalink





(c) Diversity- In selecting grant recipients under subsection (a), the Secretary shall ensure that grants are awarded to States or other eligible entities in a manner that ensures that grant funds are used to enhance the direct care workforce--CommentsClose CommentsPermalink





(1) in urban and rural communities; andCommentsClose CommentsPermalink





(2) that serves a diverse patient population, including with respect to--CommentsClose CommentsPermalink





(A) age;CommentsClose CommentsPermalink





(B) income level;CommentsClose CommentsPermalink





(C) race and ethnicity; andCommentsClose CommentsPermalink





(D) disability status.CommentsClose CommentsPermalink





(d) Grant Period- The Secretary--CommentsClose CommentsPermalink





(1) may award grants under this section for periods of not more than 3 years; andCommentsClose CommentsPermalink





(2) may extend the period of a grant under this section by not more than 3 years.CommentsClose CommentsPermalink





(e) Application- To apply for a grant under this section, an entity shall submit an application to the Secretary in such form, in such manner, and containing such information as the Secretary may require.CommentsClose CommentsPermalink





(f) Baseline Measures and Benchmarks- As a condition on the receipt of a grant under this section, the Secretary shall require each grantee to establish baseline measures and benchmarks (meeting such requirements as the Secretary may determine) in order to properly evaluate the impact of the work performed by the grantee through the grant.CommentsClose CommentsPermalink





(g) Supplement, Not Supplant- The Secretary shall ensure that amounts provided to a grantee under this section are used to supplement and not supplant other Federal, State, or local public funds expended to improve the recruitment, retention, and education of the direct care workforce.CommentsClose CommentsPermalink





(h) Termination Authority- The Secretary may terminate a grant agreement under this section for good cause. Such good cause shall include a determination that the grantee--CommentsClose CommentsPermalink





(1) has misappropriated funds provided under this section; orCommentsClose CommentsPermalink





(2) has failed to make adequate progress toward accomplishing any benchmark established under subsection (f).CommentsClose CommentsPermalink





(i) Reports and Audits- As a condition on the receipt of a grant under this section, the Secretary shall require each grantee to agree--CommentsClose CommentsPermalink





(1) to report to the Secretary on the activities carried out with the grant, including, at the request of the Secretary, periodic spending reports; andCommentsClose CommentsPermalink





(2) to allow the Secretary to conduct periodic audits pertaining to funding received through the grant.CommentsClose CommentsPermalink





(j) Eligible Entity- For purposes of this section, the term ‘eligible entity’ means--CommentsClose CommentsPermalink





(1) a State or political subdivision of a State; orCommentsClose CommentsPermalink





(2) any organization, including a labor-management partnership, that is committed to carrying out the activities set forth in subsection (b), whether in cooperation with a State, on its own initiative, or in partnership with any other organization.CommentsClose CommentsPermalink

SEC. 8. REPORTS BY SECRETARY.

Not later than 3 years after the date of awarding the first grant under section 6 or section 7, the Secretary of Health and Human Services shall prepare and submit to the Congress a report that describes the effectiveness of grants awarded under such sections in achieving the purposes of such grants, including the effectiveness of the programs funded by such grants in reducing turnover rates in the direct care workforce.CommentsClose CommentsPermalink

SEC. 9. DEFINITIONS.

For purposes of this Act:CommentsClose CommentsPermalink





(1) DIRECT CARE WORKER- The term ‘direct care worker’ has the meaning given each of the following terms in the 2010 Standard Occupational Classifications of the Department of Labor: Home Health Aides [31-1011], Psychiatric Aides [31-1013], Nursing Assistants [31-1014], and Personal Care Aides [39-9021].CommentsClose CommentsPermalink





(2) DIRECT CARE WORKFORCE- The term ‘direct care workforce’ means the workforce made up of direct care workers.CommentsClose CommentsPermalink





(3) SECRETARY- The term ‘Secretary’ means the Secretary of Health and Human Services.CommentsClose CommentsPermalink