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. * * *

Religious Views on Organ Donation

The September, 2008 issue of The Philadelphia Jewish Voice posted an article by Gabrielle Loeb entitled Judaism’s perspectives on Organ Donation After Death. Its publication was highlighted by Professor Gerry Beyer on the Wills, Trusts & Estates Prof Blog on September 10, 2008.

Loeb's article is quite detailed. He introduces the subject as follows:

Although many Jews believe that Jewish law forbids organ donation, most rabbinical authorities not only permit it, but also encourage it.

In 1990, the Rabbinical Assembly of America approved a resolution to “encourage all Jews to become enrolled as organ and tissue donors by signing and carrying cards or driver’s licenses attesting to their commitment of such organs and tissues upon their deaths to those in need.” * * *

After investigating issues regarding already deceased donors, including Kavod Ha-met (honor of the dead) Nivul Ha-met (disgrace of the dead), and the definition of death, and raising newer concerns due to medical advancements that can prolong life, he concludes with this advice to Jews:

There are numerous reasons for Jews to become organ donors; most reasons against that choice are simply misconceptions. Jews should consult their own rabbi to discuss the issue of organ donation.

Most rabbis agree, however, that it is our responsibility as Jews to honor God’s name and to save lives by giving the gift of life even after are lives have terminated through the act of organ donation.

As Mishnah Sanhedrin 4:6 says, “Whoever saves one life, it is as if he saved the entire world.”

For a thoughtful, researched Christian view of issues involving organ donation, see: A Christian's Response to Organ Donation and Transplantation, by Brad Harrub, Ph.D., posted by Apologetics Press, which asks "Can faithful Christians take advantage of, and support, organ donation and/or transplants?"

[G]iven the successful heart, pancreas, pancreas islet cell, intestine, lung, liver, and heart-lung transplants[,] the question arises, “Is this new medical technology in compliance with God’s will?” What should Christians know about organ transplants, and can we support this ever-growing practice? * * *

Wikipedia, under its heading Organ Donation and its subheading Religious Scruples, summarizes various religious views on organ donation:

Most religions are in favor of organ donation as acts of charity and as a means of saving a life. Some impose certain restrictions. For example, Jehovah's Witnesses require that organs be drained of any blood, and Muslims require that the donor have provided written consent in advance.

A few, such as certain branches of Orthodox Judaism consider it obligatory.

However, a few groups disfavor organ transplantation or donation; notably, these include Shinto and those who follow the folk customs of the Gypsies. * * *

This summary appears drawn from a short-form analysis of religious beliefs towards organ donation, with a lineage dating back to 1979, now widely posted on the Internet.

That analysis attempted to answer a basic question, answered differently for individual donors with differing religious viewpoints, who consider organ donation:

A common question that arises when people are considering organ and tissue donation is, "Does my religion approve of organ donation and transplantation?"

Surveys find that few individuals are aware of their own religion's doctrines regarding organ and tissue donation.

In fact, most major religions encourage organ and tissue donation, and many of them at the very least allow their followers to make a personal decision in this regard.

Such materials were posted in chart form by the U.S. Department of Health and Human Services, Health Resources & Service Administration on its webpage, Religious Views on Donation.

The government website's version of the materials was adapted from Organ and Tissue Donation: A Reference Guide for Clergy, 1995." For a more comprehensive guide incorporating those principles, see: Organ and Tissue Donation Reference Guide (2004; PDF, 46 pages), prepared & posted by the Wisconsin Donor Network.

Versions of that material summarizing religious viewpoints on organ donation were posted by many reputable organizations, including:

• American Red Cross' Tissue Donation -- Statements from Various Religions
  
• Gift of a Lifetime's Religion and Organ and Tissue Donation
• National Kidney Foundation's What Does My Religion Think of Donation?"
• New York Organ Donor Network's Religious Viewpoints
• One Legacy's Religious Views of Donation

In Pennsylvania, the Donate Life program, co-sponsored by the PA Department of Health, offers resources to explain and encourage organ donation. The Health Department also posts Organ and Tissue Donation Links for education and support. See also: PA EE&F Law Blog posting Organ Donation in Pennsylvania (06/14/07).

The PA Department of Transportation now provides an online organ donation registration for Pennsylvania residents who desire to make such a designation. The effect of, and process for, such a designation is explained by Penn DOT on its webpage entitled Organ Donation.

According to an article entitled Producing Organ Donors, by David H. Howard, published in the Journal of Economic Perspectives (Vol. 21, No. 3, Summer 2007, pages 25–36; PDF), the problem now is not the technology, but is the availability of transplantable organs:

"Organ transplantation is one of the greatest technological achievements of modern medicine, but the ability of patients to benefit from transplantation is limited by shortages of transplantable organs. * * *

As a result of the growth in the demand for organs, many observers have questioned whether the current system is capable of providing enough transplantable organs.

Transplant physicians and policymakers are seriously debating proposals to pay donors and their families and to change the legal regime governing the process of obtaining consent to donation. * * *

According to OrganDonor.gov from January to June of this year, 13,812 organ transplants occurred, due to the selflessness of 6,987 donors and their families.

Yet, as of September 8, 2008, the waiting list of organ transfer candidates remains at 99,435 hopeful recipients.

JSGC's Final Report on Assisted Reproductive Technologies

In May, 2008, the Pennsylvania Joint State Government Commission, through its Subcommittee on Assisted Reproductive Technologies, issued its final study & complete recommendation report entitled "The Proposed Assisted Reproductive Technologies Act, 2008" (PDF, 77 pages).

The ART Subcommittee functioned from April 2005, until May 2008. It was comprised of representatives from:

• JSGC's Advisory Committee on Adoption Law
• JSGC's Advisory Committee on Decedents’ Estates Laws
• JSGC's Advisory Committee on Domestic Relations Law
• Experienced private practitioners familiar with "assisted reproductive technologies"
• Consultants from the Pennsylvania Department of Health
  

These members included: Lawrence A. Kalikow, Esq. (Chair), Craig B. Bluestein, Esq., Frank P. Cervone, Esq., Mitchell E. Chadrow, Esq., Lisa W. Clark, Esq., Mary Cushing Doherty, Esq., Neil E. Hendershot, Esq., Albert Momjian, Esq., and Prof. Robert Rains.

For two years, the Subcommittee reviewed the proposed model Uniform Parentage Act (2002 Version) approved by the National Conference of Commissioners on Uniform State Laws), current Pennsylvania statutes, Pennsylvania court decisions (which further developed even while under study), present Pennsylvania court practices in counties, and current statewide procedures of the Department of Health, Vital Statistics.

Its Initial Report, issued in May 2007, proposed and explained a partial statutory framework for assisted reproductive technologies (ART).

An ART statute would be placed into Chapter 59 of the Domestic Relations Code (Title 23 of PA Consolidated Statutes), as Subchapters A, B, & C. It would cover "gestational agreements", also known as "surrogacy arrangements". See: PA EE&F Law Blog posting "Assisted Reproductive Tech Act Proposed in PA" (05/27/07).

But more work remained, as outlined in that Initial Report:

• The Subcommittee recommended that the Pennsylvania Supreme Court consider conforming Orphans’ Court rules to the provisions of the proposed new 23 Pa.C.S. Chapter 59 (if adopted into law).
• The Subcommittee further recommended review of the report issued by the President’s Council on Bioethics, entitled Reproduction and Responsibility: The Regulation of New Biotechnologies (March 2004).
• The Subcommittee announced its intention to continue studying provisions relating to children of assisted reproduction and to records, which would be added as Subchapters D & E of the proposed act in a subsequent report.
  

After concluding its additional work in Spring 2008, the Subcommittee published its entire proposed Assisted Reproductive Technologies Act (Subchapters A-E) Report, with a recommended new statutory Chapter, which begins at Page 23 of the Final Report.

This report, therefore, reflects the latest recommendations of the subcommittee -- a fully integrated proposed Assisted Reproductive Technologies Act.

As was the case in the May 2007 report, notes and comments follow the statutory provisions. Official comments may be used to construe a statute and determine the intent of the General Assembly.

This report also contains a summary of the statutory recommendations and a detailed table of contents for the statutory provisions.

Following the proposed statutory provisions are conforming amendments to §§ 711 and 713 of the Probate, Estates and Fiduciaries Code * * * and transitional language (applicability and effective date provisions). * * *

Thus, its Final Report superseded its Initial Report, expanding and further annotating a complete proposal for an Assisted Reproductive Technologies Act for Pennsylvania.

The Final Report addresses some issues affecting the estate & trust area, where inheritance or beneficiary rights might arise in the context of births provided by assisted reproductive technology. See: Proposed Section 5932 ("Legal parentage") and Section 5935 ("Parental status of deceased individual").

The Final Report's summary regarding the "Parental status of a deceased individual" (Pages 11 & 12), explains one interface between the Domestic Relations law and the Probate Code, and offers a customized approach for resolution:

A decedent is not a parent of a child conceived as a result of assisted reproduction after the decedent’s death unless consent is given pursuant to § 5935. In addition, for the decedent to be a parent of the child in this case, the placement of eggs, sperm or embryos must occur within 18 months of the decedent’s death and the decedent’s surviving spouse must file the consent with the clerk of the court and serve notice on the executor or administrator within six months after the decedent’s death.

Section 5935 could cause a result that is contrary to the decedent’s intent, as in the case of an individual who intends the embryos to be implanted but who then dies unexpectedly before consenting in a dated, signed writing.

Absent written consent, the death of an individual whose genetic material is subsequently used either in conceiving an embryo or in implanting an already existing embryo into a womb ends the potential legal parenthood of the deceased. Section 5935 is designed primarily to avoid the problems of intestate succession which could arise if the posthumous use of a person's genetic material leads to the deceased being determined to be a parent. Of course, an individual who wants to explicitly provide for such children in his or her will may do so.

Section 5935 eliminates the possibility of having a deceased individual’s estate open indefinitely. It balances the interest of effectuating the decedent’s intent to be a parent (and have an heir) and the practical need to close the decedent’s estate after a reasonable amount of time.

The section is to be broadly construed to effectuate the purposes of the Probate, Estates and Fiduciaries Code, including provisions concerning inheritance, succession and notice requirements.

Although Subchapter D contemplates that a woman who may be the genetic mother of the child will give birth to the child, a situation may occur where that is not the case, thereby implicating § 5935.

For example, the surviving husband of a deceased woman may use his deceased wife’s eggs to create a child. If the requirements of § 5935 are satisfied and the surviving husband uses his deceased wife’s eggs and enters into an agreement regarding assisted reproduction with a carrier, who will carry the child, his deceased wife would be the parent of the resulting child. In this circumstance, parentage would be determined under § 5904(b), since neither § 5932(b) nor Subchapters B or C are instructive in resolving the parentage issues regarding the mother of the child. To wit, § 5932(b) provides that the woman giving birth to a child is a legal parent of the child, and Subchapters B and C concern gestational agreements, a term specifically defined in § 5902.

In this case, the agreement executed by the surviving husband and the carrier would not be a “gestational agreement” as defined in § 5902 because the deceased wife would not have executed the agreement.

In addition, in this case, the Division of Vital Records of the Department of Health would need some type of order determining that the deceased wife, instead of the carrier, is to be listed as the mother of the child. * * *

The proposed legislation would provide guidance on these complex substantive and procedural issues that develop in the context of new, more frequently-employed medical technologies resulting in planned births.

As one who served on the Subcommittee, I now encourage careful consideration of its Final Report by the Legislature regarding these important matters.

Conference on Older Adults & Substance Abuse

The Pennsylvania Behavioral Health and Aging Coalition and the Pennsylvania Association of County Drug and Alcohol Administrators will host their first annual "Older Adults & Substance Abuse" conference on Thursday, June 19, & Friday, 20, 2008, at the Penn Stater Conference Center, affiliated with Penn State University, in State College, PA.

This important subject -- older adults' addictions -- receives greater attention, particularly as America's population (including the "boomers") ages. For example, the American Society of Aging, of San Francisco, CA, lists resources (Books, Workshop Guides, Bibliography, Videos, Booklets, & Pamphlets) specifically on this topic, under its web page entitled Alcohol, Medication & Other Drugs -- Abuse & Misuse Among Older Adults.

In another aging state, Florida, in 2006, the Hanley Center, in West Palm Beach, FL, had sponsored a "National Aging & Addition Conference" which was "designed to inspire, educate and launch discussion of prevention and treatment of addiction among older adults, both now and as the older population explodes within the next decade."

In Pennsylvania, the older population will explode too, and a similar conference is appropriate.

One of the speakers at the upcoming conference, Cynthia Zubritsky, will address that expected demographic change:

Pennsylvania currently ranks third in the country in the percentage of 60+ residents.

Based upon the 2000 Census, nearly 20% of the population of Pennsylvania is 60 or older. There are approximately 2.5 million persons over the age of 60, with almost 238,000 over the age of 85. One in five older Pennsylvanians lives in or near poverty and over 18% are members of a minority group.

By the year 2020, Pennsylvania’s over- 60 population is expected to increase to 25% of the population with over 3 million seniors; those 85 and over are expected to increase by 50%.

The current treatment service system is unprepared to serve the large numbers of individuals who will need treatment. This session provides the demographic framework to understand the treatment needs of older adults.

Many issues arising from this demographic change were discussed in a "2007 Pennsylvania Aging and Behavioral Health Forum Behavioral Health Issues In Older Adults" held on October 18, 2007, at the Masonic Home, in Elizabethtown, PA. That one-day forum included a session on "Older Adults and Substance Misuse, Abuse and Addiction", which noted the "[c]urrent and projected incidence and prevalence of older adults with substance abuse/misuse and addiction issues."

Substance abuse in that growing group of older adults, increases. See: "Predicted Increase in Addiction Among Older Americans", posted by Pennsylvania Treatment Centers:

A new survey predicts that the number of Americans age 50 or older who are addicted to alcohol or other drugs will double by 2020.

Researchers predict that there will be 5 million people age 50 or older with addictions by 2020, up from 2.5 million in 1999.

Misuse of alcohol and prescription drugs play a huge role in the trend; so is the willingness of Baby Boomers to take a wide range of drugs to deal with physical and mental health problems.

"There is a huge concern that what we're going to be seeing is a tidal wave of seriously affected substance abusers in later life," said Frederic Blow, of the University of Michigan Medical School. * * *

The brochure for the upcoming Conference in State College notes that the keynote speaker, Gayathri Dowling, Ph.D, will frame future concerns posed by the aging of America in the 21st Century.

Dr. Dowling will set the stage by discussing the current and projected extent of the substance abuse problems among older adults.

She will discuss issues that include physical and behavioral health issues in older adults including how drug abuse affects and impacts on the aging brain.

Dr. Dowling is representing the National Institute on Drug Abuse (NIDA) and is the Deputy Chief for the Science Policy Branch Office of Science Policy and Communications.

This is the published Agenda for the Conference:

Day One -- Thursday, June 19, 2008

10:00 – 5:30 p.m. -- Registration Opens
1:00 – 1:30 p.m. -- Welcome & Announcements
1:30 – 2:30 p.m. -- Drug Abuse in the 21st Century: What Problems Lie Ahead
2:30 – 2:45 p.m. -- Our Aging Population – A Word About Demographics
2:45 – 3:45 p.m. -- Late Life Addictions
3:45 – 4:00 p.m. -- Break
4:00 – 5:00 p.m. -- The Deadly Triangle: Gambling, Depression, and Addiction
5:30 – 6:30 p.m. -- Reception & Film

Day Two -- Friday, June 20, 2008

8:30 – 8:45 a.m. -- Welcome & Announcements
8:45 – 10:00 a.m. -- Aging & Addiction: The Complexity of Diagnosis and Treatment Of Substance Abuse in Today’s Older Adults vs. Tomorrow’s Baby Boomers
10:00 – 10:15 a.m. -- Break
10:15 – 12:00 p.m. -- Project MEDS (Medication Education Designed for Seniors) Early Intervention for Older Adults
12:00 – 1:00 p.m. -- Lunch
1:00 – 2:45 p.m. -- Lifespan Geriatric Addictions Program
2:45 – 3:00 p.m. -- Break
3:00 – 4:00 p.m. -- Older Adults & Substance Abuse – Where Do We Go From Here?
4:00 – 4:15 p.m. -- Adjournment

If you are interested in attending, note the "Reservation Procedure" set forth at the end of the Conference's promotional brochure (PDF, 8 pages).

Proposed Federal Background Checks on LTC Workers

On March 17, 2008, McNight's Long-Term Care News posted a news article entitled "Senate budget to include $160 million for elder abuse prevention".

It reported: "The [U.S.] Senate has set aside funding in its fiscal year 2009 budget resolution for a national system of background checks to keep those with abusive and criminal histories out of nursing homes and long-term care facilities."

The Senate approved an amendment for the funding last week, but the money, which would total $160 million, will only be available upon the Senate's passage of the Patient Safety and Abuse Prevention Act of 2007 (S. 1577). The act would set up a comprehensive nationwide system of background checks for long-term care workers.

Both the Senate and House passed nonbinding budget resolutions late last week. The two bodies plan to reconcile their plans this spring.

"The current system of state-based background checks is haphazard, inconsistent, and full of gaping holes," said Senator Herb Kohl (D-WI), Chairman of the Senate Special Committee on Aging and primary sponsor of the background check legislation. * * *

The United States Select Committee on Aging issued a Hearing Statement on June 7, 2007, entitled "Senators Introduce Bipartisan Bill to Create Nationwide System of Background Checks for Long-Term Care Workers", which addressed Senate Bill 1577, after its introduction.

The bill would prevent those with criminal histories from working within long-term care settings by establishing a nationwide system of background checks.

This new system would coordinate abuse and neglect registries with state law enforcement registries, and also add a federal component to the background check by cross-referencing potential employees with the FBI’s national database of criminal history records.

Under the disorganized, patchwork system of background checks that exists today, employers trying to hire caregivers cannot always determine which applicants have records of abuse or a history of committing violent crimes. As a result, predators are sometimes hired to take care of our most vulnerable citizens, working in situations where they can cause enormous harm. * * *

That Statement noted that "This bill is supported by the Elder Justice Coalition, the National Citizen’s Coalition for Nursing Home Reform, the American Association of Homes and Services for the Aging, AARP and many other organizations dedicated to protecting our nation’s vulnerable citizens." For example, EJC provided a supportive statement (PDF, 6 pages) at a committee hearing.

On July 18, 2007, another press release, entitled "Kohl Background Check Bill Gains Momentum at Forum on Elder Abuse", was issued by the U.S. Senate's Special Committee on Aging.

But, does the bill really have "momentum"? It has a ten-year history, with repeated re-introduction, but consistent non-action -- other than some pilot programs in seven states (not including Pennsylvania), as described in the summary of the currently pending bill for a federal "Patient Safety and Abuse Prevention Act":

The Senate Aging Committee first held a hearing on this legislation in 1998.

A subsequent hearing in 2002 focused on the problem of nursing home abuse, highlighting Senator Kohl's bill as part of a possible solution.

The measure was included in the Medicare prescription drug legislation that passed the Senate in June 2003. The final Medicare Modernization Act that became law included a pilot program in seven states, all of which are up and running and showing impressive results. In addition to Wisconsin, the other pilot states are Michigan, Illinois, Nevada, New Mexico, Alaska and Idaho.

Senator Kohl is taking an active interest in monitoring the pilot program, and is working to expand this initial framework to all 50 States. * * *

That Press Release, issued in July, 2007, was the last one, to date, about U.S. Senate Bill 1577 found in the online Press Room of the Senate's Special Committee on Aging.

In the meanwhile, Pennsylvania requires criminal background checks for most workers who would care for the elderly in a congregate setting, according to this statement provided by the PA Department of Aging, online:

Who needs background checks?

The Act 169-1996 Amendment to OAPSA [the Older Adults Protective Services Act] requires a criminal background check for all employees and administrators of nursing homes, personal care homes, domiciliary care homes, adult day care, and home health care providers.

In addition, Pennsylvania Department of Health has defined home health care organization or agency to include: hospices and birth centers, and the Pennsylvania Department of Public Welfare (DPW) has concluded that the Act is applicable to all DPW-licensed and DPW-operated entities:

• Personal Care Homes, 55 Pa. Code Ch. 2620;
• Community Residential Rehabilitation Services, 55 Pa. Code Ch. 5310;
• Long Term Structured Residences, 55 Pa. Code Ch. 5320;
• Community Homes for Individuals with Mental Retardation, 55 Pa. Code Ch. 6400;
• Family Living Homes, 55 Pa. Code Ch. 6500; ICF's/MR (private and state), 55 Pa. Code Ch. 6600;
• State Mental Hospitals; and
• Nursing Facilities.

A Home Health Care Agency is further defined to include those agencies licensed by the Department of Health and any public or private organization which provides care to a care-dependent individual in their place of residence.

Individuals with convictions for prohibitive offenses (see Figure 5) are prohibited from employment in these facilities.

An employee is defined as any applicant or new employee hired after July 1, 1998. Individuals employed by the facility on or after July 1, 1998, the facility has one year from the effective date of the act to conduct the background check.

The definition of employee includes contract employees who have direct contact with residents or unsupervised access to their personal living quarters. It also includes persons employed or contracted by a public or private organization to provide care to a care dependent person in his/her own residence. * * * [Formatting added.]

Click here for more information regarding such "Criminal History Background Checks" in Pennsylvania.

Public Input Sought on Personal Care Homes

On October 12, 2007, the Times-Tribune (Scranton/Wilkes-Barre, PA) reported about a public session sponsored by members of the PA House Aging & Older Services Committee on the need for regulatory reform regarding personal care homes.

In an article entitled "Reforms pushed in elderly care" (10/12/07), by Daniel Axelrod, it was reported that "State lawmakers are discussing ways to better oversee personal care homes."

Members of the state House Aging and Older Adult Services Committee considering revisions to elder care laws heard testimony from bureaucrats and industry insiders Thursday at the University of Scranton. * * *

Representatives from the state Department of Public Welfare, which supervises personal care homes, and the Department of Health, overseer of nursing homes, explained the differences between the facilities.

Nursing homes employ skilled medical professionals providing constant care under vigorous scrutiny. But personal care homes are residential facilities with less-trained staff assisting residents with daily living activities, such as dressing and bathing. * * *

The legislators, including that Committee's Chair, Phyllis Mundy, held the local session to solicit testimony about PCH operations. Stories included lessons to be learned from a tragic, fatal incident that occurred more than a year ago in a Lackawanna County personal care home. See: "Man Pleads Guilty in Neglect Case", by Josh Brogadir, posted on October 15, 2007, by WNEP-16 News.

The Legislators introduced the current regulation of nursing homes as a potential model for greater regulation of personal care homes. They seek similar objectives:

The legislators want more-frequent inspections of the 1,500 personal care homes and better training for the facilities' staffs, which serve more than 50,000 vulnerable residents statewide.

The public should be able to look up institutions' violations online and know if staff doctors also own the facilities, they added.

Each year, between 40 and 45 personal care homes close because of serious violations, said Kevin Casey, a welfare department deputy secretary. The department has taken more than 150 enforcement actions for serious life safety violations in the year to date, but the majority of homes are safe, Mr. Casey said. * * *

The article mentioned specific areas of concern involving PCH facilities:

• Tougher penalties if neglect leads to a care-dependent person's death.

• Mandating that staff report mentally impaired patients refusing treatment.

• More facility inspections.

• Enhanced disclosure rules.

Another article about the same public session noted, "New legislation has been drafted, but has not been enacted. This was intended as an opportunity for lawmakers to hear from the public." See: "Changes Proposed for Personal Care Homes", by Josh Brogadir, posted on October 11, 2007, by WNEP-16 News.

This report noted the tension between care criteria and care costs:

Lawmakers said unnecessarily stringent regulations for the personal care industry can push people out of business. The challenge is to find a balance.

"Bench Book" on PA Public Health Law

"In an age when political unrest, global travel and emerging biological threats can combine to create social, political and economic havoc worldwide, Pennsylvania’s court system may be required to address unprecedented challenges."

-- Foreword, Pennsylvania Public Health Law Bench Book (Feb, 2007)

The Administrative Office of Pennsylvania Courts has issued two Press Releases -- one dated March 13, 2007, and a second dated May 21, 2007, announcing availability of the Pennsylvania Public Health Law Bench Book (PDF, 123 pages), and promoting its use by courts and their associated judicial administration organizations.

The first Press Release announced that the Pennsylvania Supreme Court had "distributed a Public Health Law Benchbook to state judges, preparing them for the unprecedented challenges they would face should a major public health threat such as a pandemic hit the United States."

The second Press Release emphasized the importance of the Bench Book:

Public health experts say that it is not a question of "if" but "when" the next pandemic like the avian flu will occur again in the United States.

Pennsylvania court officials are not waiting for that day but proactively preparing now for the unprecedented challenges that would come with a major public health threat and they are encouraging other state court officials to do the same.

The purpose of the Bench Book is stated in its introduction (in a long sentence that I felt compelled to parse & edit into more readable bullet points):

For a number of reasons, those challenges will be particularly difficult --

• Pennsylvania’s public health law is a patchwork of statutes and state and local regulations that predate contemporary Constitutional due process standards;
• Defining federal and state jurisdictional boundaries in a public health context can be problematic;
• Pennsylvania public health case law dates primarily to the late 19th and early 20th centuries;
• The liberty restrictions on individual citizens which arise in a public health context are civil in nature and unfamiliar to judges more comfortable in dealing with such issues in a criminal context; and, finally,
• In the public health arena traditional individualized, deliberative judicial process may result in delay that, literally, becomes a matter of life and death.

Recognizing these complexities, the Administrative Office of Pennsylvania Courts developed this bench book to provide Pennsylvania judges with the critical information they will need to have when they are presented with public health cases.

In collaboration with the University of Pittsburgh’s Graduate School of Public Health Center for Public Health Preparedness, the AOPC convened researchers, writers, and a board of editors who have worked for the past year on this project.

Given the nature of the threats that confront us, it is important to note this is ongoing work. It will be expanded, updated, and corrected as time, circumstances, and changes in the law require. * * *

This bench book is intended to be a practical and useful resource. While it was written for Pennsylvania judges, we have drawn on the work being done in other states to address problems and issues that are national, even international, in scope.

We hope our work will contribute to the collective and ongoing effort of judges around the country who are committed to preserving the rule of law in the face of unprecedented challenges.

The Bench Book is divided into three sections:

• Section One contains a set of public health law Bench Guides which provide concise responses to the key questions that will arise when specific public health issues come before the court.
• Section Two is analysis and background information on some of the legal issues the court may be called on to consider.
• Section Three provides a glossary of public health related terminology, model orders and a table of cases. In the bench book CD format, all material is hyperlinked to original sources.
  

The Bench Book acknowledges its authors, its editors, and its contributors. This cast of characters alone is sufficient evidence testifying about the importance placed on these matters by the judicial system in Pennsylvania, and the need for solutions to potential widespread problems:

Principal writing and research of this bench book was performed by Darren M. Breslin, Esq. and Owen J. Kelly, Esq., AOPC staff attorneys, and Elizabeth Ferrell Schmidt, Esq. and Patricia M. Sweeney, JD, MPH, RN of the University of Pittsburgh Center for Public Health Preparedness.

The editorial board consisted of Judge Mark I. Bernstein of Philadelphia County, Judge John A. Bozza of Erie County, President Judge John M. Cleland of McKean County, Grace R. Schuyler, Esq., Office of Legal Counsel, Pennsylvania Department of Health, and Zygmont A. Pines, Esq., Pennsylvania State Court Administrator.

Special appreciation is extended to Daniel Stier, Esq. and the Centers for Disease Control and Prevention Public Health Law Program, Caroline S. Cooper of American University, Doctors Caroline C. Johnson and Esther D. Chernak of the Philadelphia Department of Public Health, AOPC Assistant Court Administrator Andrea Tuominen, AOPC legal intern Joseph DiGuglielmo, UPCPHP legal intern Caleb Wallace, and especially to Judge Linda L. Chezem, retired Judge of the Indiana Court of Appeals, and who is a pioneer is the work of alerting judges to the challenges presented by public health law and teaching judges what they need to know to perform their critical functions in a democratic society.

Dispute resolutions regarding health laws occur in certain state or federal administrative agencies or the Courts of Common Pleas, with enforcement variously by health organizations, interested persons, and the Commonwealth through its "parens patriae" powers, and with rights of appeal within federal or state court systems, as explained in Sections 2.20-2.25 of the Bench Book.

The Orphans' Court Division is not involved at all in public health matters. In fact, upon a search of the Bench Book, the terms "orphans" (as in Orphans' Court Division") or "fiduciary" are not found anyway in that document.

I mention the Bench Book on this blog due to general issues of public health & safety, not because the publication specifically addresses elder care or senior services. I also note it because this publication is a fine example of advance planning involving the Pennsylvania court system.

The Bench Book is cited in the second Press Release as one of many planned components for change in Pennsylvania's Unified Judicial System:

Preparing and issuing the bench book is among a number of Supreme Court of Pennsylvania initiatives to modernize and improve the state court system's ability to effectively provide services to its citizens.

These initiatives include court safety and security, specialty courts, trained court interpreters, statewide judicial automation and access to court information, and responding to needs of families and children involved in court proceedings.

Where does the Orphans' Court Division fit into this overall vision? I'll reflect on that concern tomorrow.

PA Death Certificate Form Modified (Slightly)

Effective February 1, 2007, the Pennsylvania Department of Health, through its Division of Vital Records, implemented revised versions of both the Certificate of Death (Form H105.143, Rev. 11/06) and the Coroner’s Certificate of Death (Form H105.144, Rev. 11/06).

The Pennsylvania Medical Society announced use of the new forms in a posting on its website entitled State Changes Death Certificate:

The only revision is a space at the bottom where the Disposition Permit Number must be entered by the funeral director or local registrar. Outdated versions of the certificate will be rejected.

A supply of the new certificate has been sent to funeral directors, coroners and medical examiners, hospital administrators, and long-term-care facility administrators.

To order additional supplies of the Certificate of Death, please contact the Division of Vital Records by email at ra-dh-dyrsupplies@state.pa.us or by fax at (724) 656-3155. Provide the form name and number, requested quantity, and your complete mailing address and telephone number.

General information regarding death certificates in Pennsylvania is provided by the PA Department of Health on its website here. A table of contents listing detailed information regarding the availability & processing of "Vital Records" in Pennsylvania is found here.

A non-governmental website, VitalRec, independently displays information & links about Pennsylvania's vital records here.

Officially, since 1906, the Department of Health has been the repository of information regarding births & deaths in the Commonwealth. Prior to 1906, county offices collected birth & death information, which still can be accessed at county courthouses, as described here. Such older data is particularly useful for geneological searches.

Using the recent, collective data available at the state level, the Department can offer studies of population trends in the Commonwealth, as found here.

Complete explanations about death records are offered by the Department, as follows:

• How to Obtain a Death Record
• Eligible Requestors
• Cost of a Death Record
• Information Required to Request a Death Record
• Methods of Obtaining a Death Record (Including On-Line Requests)
• Genealogy Requests
• How to Obtain Death Records from Other States
• Download the MAIL Death Certificate Application Form (PDF)
  

The Department has contracted with a nationwide, specialized, private contractor to facilitate a process whereby authorized persons can order death certificates online, with electronic payment of the standard charges. VitalCheck is the vendor.

These, then, are the four "official" ways to obtain a death certificate in Pennsylvania:

• On-line Requests
• Facsimile Requests
• Mail Requests
• In Person at a Public Office

If you are a Pennsylvania resident, there is yet another way to obtain a vital record -- through the office of your State Representative or State Senator. Their staffs offer assistance as a constituent service, if you ask for help.

Searching the internet under the phrase "Pennsylvania death certificate" produces another type of "helpers" -- commercial third-party services that offer to obtain such vital records quickly. You still must submit the required search information. You will pay fees higher than those charged by the Department.

So now you know: You can obtain Pennsylvania vital records easily yourself, and avoid an unnecessary service charge.