[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 3696 Introduced in Senate (IS)]

111th CONGRESS
  2d Session
                                S. 3696

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.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             August 3, 2010

   Mr. Casey introduced the following bill; which was read twice and 
  referred to the Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Direct Care Workforce Empowerment 
Act''.

SEC. 2. FINDINGS.

    Congress finds that--
            (1) direct care workers are the linchpin of the Nation's 
        paid long-term care system, providing essential care and daily 
        living services to more than 13 million elderly and disabled 
        Americans;
            (2) the ability to meet the Nation's long-term care 
        challenges depends largely on a strong, stable direct care 
        workforce;
            (3) over \2/3\ of older adults will need some form of long-
        term care at some point in their lives;
            (4) the United States is experiencing a severe shortage of 
        qualified direct care workers to provide personal and long-term 
        care and support services;
            (5) according to the Bureau of Labor Statistics, direct 
        care workforce occupations consist of nursing aides, home 
        health aides, and personal and home care aides;
            (6) 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, strenuous 
        conditions, limited opportunities for advancement, inadequate 
        training, and lack of respect;
            (7) direct care workers are often underpaid, with nearly 1 
        in 3 living near or below the poverty level, and more than 1 in 
        4 lacking health insurance;
            (8) the average annual income for direct care workers is 
        $17,000, and 40 percent of direct care workers live in 
        households that receive one or more public benefits such as 
        food stamps or Medicaid; and
            (9) States have management information systems that are 
        rarely set up to gather and report basic information about the 
        direct care workforce that could be used to assess changes and 
        challenges to the workforce.

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:
            ``(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);''.
    (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:
    ``(z) The term `casual basis' means employment which is irregular 
or intermittent, and which is not performed by an individual whose 
vocation is the provision of babysitting or companionship services or 
an individual employed by an employer or agency other than the family 
or household using their services. Employment is not on a casual basis, 
whether performed for one or more family or household employers, if 
such employment for all such employers exceeds 20 hours per week in the 
aggregate.''.

SEC. 4. DIRECT CARE WORKFORCE DATA COLLECTION AND MONITORING.

    (a) In General.--The Secretary of Health and Human Services shall 
establish a direct care workforce monitoring program to--
            (1) facilitate the reporting of data by States about the 
        direct care workforce and the sharing of such data among 
        States, including tracking of best practices and cross-State 
        comparisons;
            (2) enable the Centers for Medicare & Medicaid Services to 
        better collect data across all long-term care settings for 
        services financed through title XVIII or XIX of the Social 
        Security Act (Medicare or Medicaid, respectively);
            (3) enable the Centers for Medicare & Medicaid Services 
        (and any other agency designated by the Secretary) to provide 
        guidance to States concerning the adequacy and quality of the 
        States' reporting of data, waiver and renewal applications, and 
        any provisions of or modifications to State plans regarding the 
        direct care workforce, including by revising any data reporting 
        forms and systems to ensure uniform and consistent State 
        reporting; and
            (4) include, at a minium, the collection of direct care 
        workforce data (which may be based on payroll data, taking into 
        account services provided by agency or contract staff) on--
                    (A) schedule (both location and hours);
                    (B) turnover;
                    (C) tenure;
                    (D) wages;
                    (E) benefits; and
                    (F) vacancies.
    (b) Advisory Council on Direct Care Workforce.--
            (1) Establishment.--The Secretary, in consultation with the 
        Secretary of the Labor, shall establish a National Advisory 
        Council on the Direct Care Workforce (referred to in this 
        section as the ``Council'') that shall be composed members to 
        be appointed by the Secretary.
            (2) Duties.--The Council shall consult with, advise, and 
        make recommendations to the Secretary with respect to the 
        Secretary's administration of the program established under 
        subsection (a).
            (3) Administrative provisions.--Members of the Council 
        shall serve a term no longer than 5 years and be representative 
        of diverse public and private sector expertise and interests, 
        including representation from individuals with unique expertise 
        on topics related to direct care services or the direct care 
        workforce (including at least 1 individual with experience in 
        providing direct care services in an institutional or facility 
        based setting and 1 individual with experience in providing 
        such services in a home or community-based setting), and from 
        officials from the Department of Health and Human Services, the 
        Department of Labor, and others as the Secretary determines 
        appropriate.
    (c) Reports.--Not later than 3 years after the date of the 
enactment of this section, and periodically thereafter, as determined 
by the Secretary, the Secretary shall prepare and submit to the 
appropriate committees of Congress a report that--
            (1) analyzes the existing direct care workforce data 
        infrastructure;
            (2) analyzes the current and projected needs for the direct 
        care workforce, including information on turnover and retention 
        of workers;
            (3) makes recommendations for new or additional uniform 
        data elements across regions and States that is necessary to 
        track supply, demand, and workforce shortages related to the 
        population served by direct care workers;
            (4) makes recommendations for improvement in the 
        competency, education, and training standards for direct care 
        workers; and
            (5) includes any other topics requested by the Secretary.

SEC. 5. DIRECT CARE WORKER RECRUITMENT, RETENTION, AND EDUCATION GRANT 
              PROGRAM.

    (a) Grants Authorized.--
            (1) In general.--The Secretary of Health and Human Services 
        shall award grants to States and other eligible entities to 
        improve the recruitment, retention, and education of the direct 
        care workforce.
            (2) Types of grants.--Of the amounts authorized under 
        subsection (k), the Secretary shall award grants as follows:
                    (A) $100,000 for the period of fiscal years 2011 
                through 2013 to each State to assist the State in 
                developing its State direct care workforce plan.
                    (B) The remainder of such amounts to States and 
                other eligible entities on a competitive basis for the 
                purposes described in subsection (b).
    (b) Use of Funds.--An eligible entity receiving a grant under this 
subsection (a)(2)(B) may use the grant to--
            (1) expand and upgrade training programs and infrastructure 
        for direct care workers;
            (2) implement or improve systems for the monitoring of and 
        collection of data relating to the direct care workforce;
            (3) establish or expand recruitment and retention programs 
        for direct care workers, including initiatives which improve 
        the wages and benefits offered such workers; and
            (4) develop or expand programs that promote the role of 
        direct care workers in new cost-effective models of providing 
        care to people with chronic health conditions, disabilities, 
        and other extended support needs, and include approaches such 
        as remote monitoring, wellness, and prevention.
    (c) Grant Period.--The Secretary may award grants under this 
section for periods of not more than 3 years. The Secretary may extend 
the period of a grant under this section. Each such extension shall be 
for a period of not more than 3 years.
    (d) Application.--
            (1) In general.--To apply for a grant under this section, 
        an eligible entity shall submit an application to the Secretary 
        in such form, in such manner, and containing such information 
        as the Secretary may require.
            (2) Contents.--At a minimum, the Secretary shall require 
        each such application to outline how the eligible entity will 
        establish baseline measures and benchmarks that meet the 
        Secretary's requirements to evaluate program outcomes.
    (e) Uniform Baseline Measures.--The Secretary shall require each 
grantee to establish uniform baseline measures in order to properly 
evaluate the impact of the work performed by the grantee under this 
section.
    (f) Supplement, Not Supplant.--Amounts provided to an eligible 
entity under this section shall be used to supplement and not supplant 
other Federal, State, and local public funds expended to improve the 
recruitment, retention, and education of the direct care workforce.
    (g) Termination Authority.--The Secretary may terminate selection 
of a grantee under this section for good cause. Such good cause shall 
include a determination that the grantee--
            (1) has misappropriated funds provided under this section; 
        or
            (2) has failed to make adequate progress toward 
        accomplishing any goal set by the Secretary or included in the 
        grantee's application.
    (h) Definitions.--In this section--
            (1) the term ``eligible entity'' means a State or political 
        subdivision of a State or any organization that is committed to 
        accomplishing tasks set forth in subsection (b), whether in 
        cooperation with a State, on its own initiative, or in 
        partnership with any other organization; and
            (2) the term ``direct care worker'' means a worker 
        (including a nursing aide, home health aide, or personal and 
        home care aide) who provides care and personal assistance to 
        people who are elderly, infirm, or living with a disability.
    (i) Reports and Audits.--Each eligible entity receiving a grant 
under this section shall submit to the Secretary of Health and Human 
Services a report of the activities carried out with grant funds. The 
Secretary may conduct periodic audits and request periodic spending 
reports of States receiving grants under this section.
    (j) Report.--Not later than 3 years after the date of making 
initial grants under this section, the Secretary shall prepare and 
submit to Congress a report that describes the effectiveness of the 
grants awarded under this section in achieving specific State goals, 
including the effectiveness of the programs funded by grants in 
reducing turnover rates in the direct care workforce.
    (k) Authorization of Appropriations.--There are authorized to be 
appropriated to the Secretary of Health and Human Services $25,000,000 
for each of fiscal years 2011 through 2016, to carry out this section.
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