Final PA Regs for Home Care Agencies & Registries

On December 12, 2009, Final Regulations were published by the Pennsylvania Department of Health adopting minimum standards for the operation in the Commonwealth of home care agencies and home care registries.

The PA Department of Health, through its Division of Home Health "establishes and enforces quality care and safety standards for Health Care Facilities in Pennsylvania," which includes state licensure, Medicare certification, and complaint investigations regarding Home Health Agencies and, more recently, Home Care Agencies/Home Care Registries.

Governor Rendell had signed Act 69 of 2006 on July 2, 2006. It amended the Pennsylvania Health Care Facilities Act to include Home Care Agencies (HCAs) and Home Care Registries (HCRs). The amended Act required the PA DoH to develop more detailed regulations for its licensure and supervision of HCAs and HCRs. See: PA EE&F Law Blog posting, "PA Licensure of Home Care Agencies" (12/14/06).

Resulting proposed regulations were published on December 9, 2006, for comment. There were many comments received. The final publication of regulations explained in great detail the changes from the proposed regulations in response to the comments, as received both at hearings and through communications.

Revised, final rules were published recently as PA. Bulletin Doc. No. 09-2273, at 39 Pa.B. 6958, as amendments to 28 PA. Code, Chapter 611, "Home Care Agencies and Home Care Registries."

Home care agencies employ, and home care registries refer directly, care workers, who then provide home care services. Such services include assistance with bathing, dressing, feeding, housekeeping, shopping, meal planning/preparation, and transportation, as well as companionship, respite care, and specialized services.

The PA DoH offers an online listing, sorted by counties, of licensed home health care organizations.

This is a summary, provided by the PA DoH, regarding proscribed conduct of an HCA or an HCR, which is required to:

• Conduct criminal background checks and child abuse clearances, if applicable on all staff.
• Conduct TB screens for all direct care workers, contractors and office staff with direct consumer contact.
• Ensure the competency of individuals that provide care by making sure they:
  • Possess a valid nurses license; or
  • Demonstrate competency by passing a competency examination developed by the HCA/HCR; or
  • Have successfully completed at least one of the following:
    • The nurse aide certification and training program sponsored by the Department of Education
    • A home health aide training program meeting the requirements of 42 C.F.R. 484.36
    • A training program developed by an HCA/HCR, or other entity that meets the requirements
    • A training program meeting the training standards imposed on the HCA/HCR by virtue of their participation as a provider in a Medicaid Waiver or other publicly funded program providing home and community based services
    • A program approved by the Department and published in the Pennsylvania Bulletin or posted on the Department's website
• Ensure that current direct care workers employed by the HCA and rostered by the HCR are in compliance with one of these competency requirements by 12/12/2011
• Maintain documentation to show direct care workers have required skills, criminal background checks, child abuse clearances, if required and required TB screening
• Maintain documentation to show that owner(s) and office staff have criminal background checks, child abuse clearances if required; and that owner(s) and office staff with direct consumer contact have required TB screening
• Review direct care worker competency at least annually, more frequently if warranted, to ensure direct care workers have the proper skills to provide the care required by consumers
• Provide information to consumers regarding:
• • Right to be involved in the service planning process
  • Right to receive services with reasonable accommodations
  • Right to receive ten (10) calendar days advance notice of termination of service(s)
  • Less than 10 days written notice if consumer has failed to pay, despite notice and is more than 14 days in arrears; or if health and welfare of the direct care worker is at risk

• Provide information to the consumer concerning:
• • the services that will be provided, the identity of the direct care workers that will provide the service,
    
  • the hours when services will be provided,
    
  • fees and total costs
  • DOH contact information regarding licensure requirements
  • DOH complaint hotline number
  • Telephone number for the local Ombudsman and competency requirements for direct care workers
  • Whether the direct care worker is an employee or independent contractor
  • Tax obligations and employment responsibilities of HCA/HCR and consumer with regard to the direct care workers
  • Documentation that demonstrates personal face-to-face interviews with all direct care workers or independent contractors

In order to prevent financial abuse, two limitations on conduct are significant. An HCA or HCR may not:

• Assume Power of Attorney or guardianship over a consumer utilizing the services of the HCA or HCR, or
  
• Require a consumer to endorse checks over to the HCA or HCR

The answers to frequently asked questions appear to have been updated with some inquiries about the new regulations.

As to the coverage of the new regulations, I note that Section 611.3(b) provides:

Existing home care agencies and home care registries which were home care agencies or home care registries prior to December 12, 2009, shall be required to meet the same standards as home care agencies and home care registries created after December 12, 2009.

As to effectiveness of the new regulations, Section 611.2(c) provides:

An entity operating a home care agency or home care registry, or both, as of December 12, 2009, may continue to operate after December 12, 2009, provided it submits an application for a license to the Department in accordance with instructions published in the Pennsylvania Bulletin and posted on the Department's web site by February 10, 2010.

An entity that has submitted an application for licensure in accordance with the requirements of this subsection may continue to operate the home care agency or home care registry until a date that the Department may refuse the application for licensure. If the Department grants the application for licensure, the home care agency or home care registry may continue operation of the agency or registry in accordance with this chapter. [Emphasis & paragraphing added.]

PA DoH's website indicated: "The Department is now accepting applications for licensure." The application is available online. And, yes, there are filing fees.

Update: 12/15/09 at 2:00 pm:

The Pittsburgh Post-Gazette published an article by Gary Rotstein on December 15, 2009, entitled State looks to license home care agencies:

Hundreds of home care agencies that assist elderly or disabled individuals with basic tasks such as dressing, bathing and housekeeping are about to fall under state scrutiny for the first time.

The Pennsylvania Department of Health published regulations Saturday to provide minimum standards for nonmedical home care agencies. More than 400 home health agencies that employ skilled individuals such as nurses and therapists have already been regulated.

With the backing of the largest association representing home care providers, the Legislature approved a measure in 2006 that extends state oversight to agencies delivering more basic home assistance. Their work also includes such tasks as preparing meals and transporting clients to appointments.

The legislation and new regulations do not apply to self-employed individuals who have a direct relationship with a client. But employers who send multiple direct-care workers into homes will have to pay a $100 licensing fee and ensure their aides have criminal background checks and tuberculosis screenings. * * *