110 HR 1279 IH: Direct Support Professionals Fairness and Security Act of
U.S. House of Representatives
2007-03-01
text/xml
EN
Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
1.
(a)This Act may be cited as the Direct Support Professionals Fairness and Security Act of
2007
.
(b)Congress
finds the following:
(1)Direct support professionals (including
workers referred to as direct support workers, direct care workers, personal
assistants, personal attendants, paraprofessionals) are the primary providers
of long term care services for millions of individuals who have physical or
mental disabilities. Direct support professionals provide assistance with
activities of daily living, instrumental activities of daily living, assistance
with rehabilitation, habilitation, training needs and other tasks. All provide
essential supports that help keep individuals with disabilities connected to
their communities.
(2)These workers who
provide intimate supports are predominately female and many are the sole
breadwinners of their families. Although working and paying taxes, many women
in these jobs remain impoverished and are eligible for many of the same Federal
and state public assistance programs upon which the very individuals with
disabilities to whom they provide supports must depend.
(3)Throughout the
nation, there is a critical shortage of direct support professionals. Vacancy
and turn over rates are high. In many parts of the country, individuals with
disabilities are unable to access the services they need, thereby jeopardizing
their health and quality of life, placing even greater burdens on their family
members and informal caregivers and creating long waiting lists for community
placement.
(4)The crisis that
the nation faces today will only get worse. Over the next 30 years, there will
be a rapid rise of the population over 65 years of age. At the same time,
advances in medical science and drug therapy are increasing the number of
people, of all ages, living with severe disabilities. Thus, while demand for
direct support professional services is increasing, the pool of younger, entry
level workers is shrinking. By 2010, more than 780,000 additional workers must
be found to fill long-term direct support staff positions.
(5)To stabilize and
increase the number of direct support professionals in the work force, the
wages and benefits of direct support professionals must be improved and made
equitable among long term support options.
(6)Medicaid is the
single-largest payor of long-term supports and services for people with
disabilities. Enhanced Federal Medicaid matching funds should be available to
assist states committed to addressing wage differentials among direct support
professionals by increasing the wages of direct support professionals and
supporting and improving the stability of the direct support professional
workforce.
2.
(a)Authorizing
establishment of direct support professional wage enhancement
plansTitle XIX of the Social
Security Act is amended—
(1)by redesignating
section 1939 as section 1940; and
(2)by inserting after
section 1938 the following new section:
1939.Direct support
professional wage enhancement plan(a)As a condition for the
receipt of increased funding described in subsection (f), a State is required
to provide for the implementation of a direct support professional wage
enhancement plan under this section.
(b)Direct support
professional wage enhancement plan
(1)For purposes of this section, the term direct
support professional wage enhancement plan means a plan of a State that
the Secretary determines meets the following requirements:
(A)The plan is submitted to the Secretary not later than
120 days after the date the Secretary provides notice to States under paragraph
(3).
(B)
(i)Equalization of
hourly wage ratesThe plan must describe how the State intends to
use the funds made available under this section to increase the hourly wage
rate of targeted direct support professionals so that by the end of the 5-year
implementation period (as defined in subsection (g)(4)) such rate is equal to
the average hourly wage rate of reference direct support professionals.
(ii)The plan must include the additional information
described in subsection (c).
(C)The
plan must be developed and implemented in accordance with subsection
(d).
(D)The State must provide for annual assessments and reports
in accordance with subsection (e).
(2)Nothing in this section shall be construed as preventing a
State from time to time and with the approval of the Secretary from modifying a
direct support professional wage enhancement plan so long as such plan, as
modified, continues to meet the requirements of paragraph (1).
(3)Not
later than 90 days after the date of the enactment of this section, the
Secretary shall provide notice to States regarding the provisions of this
section, including the availability of enhanced funding to implement direct
support professional wage enhancement plans.
(c)A direct support professional wage enhancement plan shall
include, consistent with the other requirements of this section, the
following:
(1)A description of
how the State intends to use funds provided under this section to meet the
requirement of subsection (b)(1).
(2)A description of
the prevailing hourly wage rates for targeted direct support professionals
before the implementation of such plan and any hourly wage rate differentials
between targeted direct support professionals and reference direct support
professionals.
(3)The impact of wage
differentials and labor market conditions on the recruitment and retention of
targeted direct support professionals, including current or projected labor
shortages.
(4)The identification
of a specific, five-year performance goal to increase the hourly wage rate of
targeted direct support professionals so as to eliminate any wage rate
differential between targeted and reference direct support professionals and
the methodology to be used by the State to achieve its goal.
(5)The annual
performance goals and targets that the State will monitor to track progress
toward achieving its five-year performance goal.
(6)Current efforts to
increase and stabilize the State’s direct support professional labor force and
how the plan shall be coordinated with such efforts.
(7)Methods for
assuring that funds provided under this section shall be spent in accordance
with such plan, and shall not be used to supplant existing funds for wages and
benefits or to reduce the State’s expenditures below the amount that the State
would have paid had the plan not been in effect.
(8)A description of
the stakeholders and collaborative process used consistent with subsection (d)
to develop the plan and the means by which such collaboration shall continue
during the implementation of the plan.
(9)Assurances
satisfactory to the Secretary that upon the expiration of the 5-year
implementation period, the State shall provide funding necessary to maintain
the wage rates attained under the plan for targeted direct support
professionals at the five-year performance goal increased annually thereafter
by a percentage that is not less than the annual percent increase in the
employment cost index (as published quarterly by the Bureau of Labor
Statistics).
(d)Development and
implementation of planA direct support professional wage
enhancement plan shall be developed and implemented in collaboration
with—
(1)targeted
individuals with disabilities and family representatives;
(2)targeted direct
support professionals;
(3)agencies or
provider organizations that serve targeted individuals with disabilities and
employ targeted direct support professionals; and
(4)individuals and
organizations representing the interests of those described in paragraphs (1)
through (3).
(e)Annual
assessment and report
(1)A State shall—
(A)perform an assessment of the operation of
the direct care support professional wage enhancement plan in the State in each
fiscal year; and
(B)report to the Secretary by January 1
following the end of the fiscal year, on the results of such assessment.
(2)Each
such assessment shall include the following:
(A)An assessment of
the effectiveness of the plan in increasing the wages of targeted direct
support professionals and reducing or eliminating the wage gap with reference
direct support professionals.
(B)An assessment of
the State’s progress in meeting its annual performance goals under the
plan.
(C)An assessment of
the effectiveness of the State’s collaboration with stakeholders on plan
development and implementation issues.
(D)A review and
assessment of State activities to coordinate the plan with other activities in
the State to improve and stabilize the direct support professional
workforce.
(E)Recommendations
for improving the plan.
(F)Such other
information as the Secretary may specify.
(f)Increase in
payment to implement plan
(1)Subject to paragraph (2), for each calendar quarter
during the 5-year implementation period in which a direct support professional
wage enhancement plan is in effect under this section in a State, the amount of
payment for medical assistance under section 1903(a)(1) shall be increased by
the wage enhancement incentive percentage (as defined in paragraph (3)(G))
multiplied by the portion of total funds expended during the quarter for the
provision of direct support services to targeted individuals that are
attributable to the wages of targeted direct support professionals.
(2)
(A)Payments made under paragraph (1) shall be used only to
increase the wages of targeted direct support professionals.
(B)Treatment of
employee benefits and salary related benefitsFor purposes of
subparagraph (A), payments for costs of employee benefits and other salary
related benefits (including mandatory employment taxes and benefits) shall be
treated as payments to increase the wages of targeted direct support
professionals so long as payments attributable to such non-wage benefits do not
exceed 20 percent of the total amounts that increase the wages of targeted
direct support professionals.
(3)For
purposes of this subsection:
(A)Annual rate
differential percentageThe term annual rate differential
percentage means, with respect to a State for a year in which the direct
support professional wage enhancement plan is in effect, the percent of the
direct support professional wage rate differential (as defined in subparagraph
(E)) to be paid under plan for the year.
(B)Average
reference direct support professional hourly wage rateThe term
average reference direct support professional hourly wage rate
means, for a year under a direct support professional wage enhancement plan,
the average direct support professional hourly wage rate (as defined in
subparagraph (D)), including any projected increase, paid in the year to
reference direct support professionals who are employed by the State or, if
there are no such employees, to reference direct support professionals who are
employed by local governments in the State, or, when necessary to meet the
purpose of the plan, any other reference wage rate defined by the State and as
approved by the Secretary.
(C)Base-year
average targeted direct support professional hourly wage rateThe
term average targeted direct support professional hourly wage rate
means, for a State, the average direct support professional hourly wage rate
(as defined in subparagraph (D)) paid to targeted direct support professionals
under the State plan in the 12-month-period immediately preceding the 5-year
implementation period.
(D)Direct support
professional hourly wage rateThe term direct support
professional hourly wage rate means—
(i)the rate of hourly
wage paid to a direct support professional; plus
(ii)mandatory
employment taxes and benefits (as defined in subparagraph (F)) paid (as
computed and applied on an hourly basis) with respect to such
employment.
(E)Direct support
professional wage rate differentialThe term direct support
professional wage rate differential means, for a State for a year, the
amount by which—
(i)the
average reference direct support professional hourly wage rate (as defined in
subparagraph (B)) for the State and year, exceeds
(ii)the base-year
average targeted direct support professional hourly wage rate (as defined in
subparagraph (C)) for the State.
(F)Mandatory
employment taxes and benefitsThe term mandatory employment
taxes and benefits means taxes under section 3111 of the Internal
Revenue Code of 1986 (relating to the employer share of FICA taxes) and the
employer’s share of unemployment compensation and worker’s compensation
payments.
(G)Wage enhancement
incentive percentageThe term wage enhancement incentive
percentage means—
(i)the product of (I)
the total direct support professional wage rate differential (as defined in
subparagraph (E), and (II) annual rate differential percentage (as defined in
subparagraph (A)); divided by
(ii)the average
reference direct support professional hourly wage rate (as defined in
subparagraph (B)).
(g)The Secretary, through the Inspector General of the
Department of Health and Human Services, shall audit a sample from among the
States in order to assess the effectiveness of progress made in reducing or
eliminating the wage gap between targeted and reference direct support
professionals through funds under this section.
(h)
(1)The
Comptroller General of the United States shall conduct a study concerning the
wage equalization and recruitment and retention of direct support professionals
who are providing services and supports to individuals with
disabilities.
(2)The
Comptroller General shall submit to Congress reports, in the third and fifth
years in which this section is being implemented, on progress made by States,
and the impact of payments under this section, on providing wage equalization
and in improving recruitment and retention of direct support
professionals.
(i)For
purposes of this section:
(1)Direct support
professionalThe term direct support professional
means an individual who, whether in a supervisory or non-supervisory capacity,
provides services and supports, as needed, to an individual with a disability
to assist in acquiring, maintaining or enhancing skills necessary to perform
activities of daily living or instrumental activities of daily living and
health-related functions through hands-on assistance, supervision, or cueing.
Such term includes, among others, individuals who may be classified as nurses
aides, home health aides, home care aides, personal care aides and personal
assistants, in-home support workers, homemakers, behavioral specialists,
habilitation specialist, mental health rehabilitation technicians, independent
living skills specialists, crisis program workers, qualified mental health or
mental retardation professionals, and educational technicians.
(2)Direct support
professional wage enhancement planThe term direct support
professional wage enhancement plan is defined in subsection
(b)(1).
(3)The term direct support services means a
range of services and supports, provided by one or more persons, designed to
provide support and health-related services to an individual with a disability
to enable them to perform, acquire, maintain or enhance skills necessary to
perform activities of daily living (ADL), instrumental activities of daily
living (IADL) and health-related functions. Such term includes personal care
services, consumer-directed personal assistance services, rehabilitation
services, habilitation services, and respite care.
(4)Individual with
a disabilityThe term individual with a disability
means an individual who meets (or is regarded as meeting) the criteria for
being disabled under the supplemental security income program under title XVI.
Such term includes an individual who, regardless of age, is eligible for and
receiving medical assistance under this title for any benefits described in
paragraph (i)(8).
(5)5-year
implementation periodThe term 5-year implementation
period means, with respect to a State and a direct support professional
wage enhancement plan under this section, the period of 20 calendar quarters
beginning with the first full calendar quarter in which such plan is
implemented in the State under this section. Each of the five
4-calendar-quarter periods within such period shall be treated as a year for
purposes of this section.
(6)Reference direct
support professionalThe term reference direct support
professional means a direct support professional who—
(A)is employed by a
State or local government entity; and
(B)provides direct
support services to targeted individuals with disabilities under this
title.
(7)Targeted direct
support professionalThe term targeted direct support
professional means a direct support professional who—
(A)is not employed by
a State or local government entity; and
(B)provides direct
support services to targeted individuals with disabilities under this
title.
(8)Targeted
individual with a disabilityThe term targeted individual with a
disability means an individual with a disability who is eligible for and
is receiving medical assistance under this title for personal care services
under section 1905(a)(23), for rehabilitative services under section
1905(a)(13), for home health care services under section 1905(a)(7), for
intermediate care facility services for the mentally retarded under section
1905(a)(15), for home and community-based services under a State plan option
under section 1915(j), for self-directed personal assistance services under a
State plan amendment option under section 1915(i), or for home and
community-based services under a waiver approved under section 1915(c) or
section
1115.
.
(b)Section 1903(a)(1) of such Act (42 U.S.C. 1396b(a)(1))
is amended by inserting and section 1939(f)
after
1923(f)
.
(c)Authorization of
planning grantsThe Secretary of Health and Human Services is
authorized to award State planning grants in an amount not to exceed, in the
aggregate, $3,000,000, in order to assist States in establishing direct support
professional wage enhancement plans under section 1939 of the
Social Security Act, as inserted by
subsection (a).