1.This Act may be cited as the
Direct Care Job Quality Improvement
Act of 2011
.
2.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 many of the approximately 10,000,000 Americans who are elderly or
live with disabilities;
(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;
(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;
(4)the United States
faces an impending shortage of qualified direct care workers to provide
personal and long-term care and support services;
(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;
(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;
(7)the average annual
income for direct care workers is $17,000, and more than 1 in 4 of such workers
lack health insurance; and
(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.
3.Limitation to
exemption under the Fair Labor Standards Act
(a)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)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 in domestic
service employment to provide companionship services means employment
which is irregular or intermittent, and which is not performed by an
individual—
(1)whose vocation is the provision of
companionship services; or
(2)who is employed by
an employer or agency other than the family or household using the services of
such employer or agency.
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..
4.Long-term
services and supports
(a)Direct care
workforce monitoring program
(1)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)).
(2)Monitoring and
evaluationUnder the program
described in paragraph (1), the Secretary shall monitor and evaluate—
(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;
and
(B)the adequacy of
the direct care workforce to provide services through such programs,
including—
(i)the
stability of such workforce, including turnover rates;
(ii)an
evaluation of geographic variation in the adequacy of such workforce;
and
(iii)the adequacy of
such workforce to meet the current and future demand for long-term services and
supports under such programs.
(3)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—
(A)facilitate the
sharing of data on such workforce between relevant Federal departments and
between States;
(B)prepare
cross-State comparisons of such data and share such comparisons with States;
and
(C)share with States and Federal departments
best practices for developing an adequate workforce that provides high-quality
direct care services.
(b)Reporting on
workforce adequacy under Medicaid
(1)Section 1902(a) of the Social Security Act (42 U.S.C.
1396a(a)) is amended—
(A)by striking
and
at the end of paragraph (82);
(B)by striking the
period at the end of paragraph (83) and inserting ; and
;
and
(C)by inserting after
paragraph (83) the following:
(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).
.
(2)Definitions and
exception from waiverSection
1902 of the Social Security Act is further amended by adding at the end the
following:
(ll)
(1)For purposes of this subsection and
subsection (a)(84):
(A)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].
(B)The term
direct care workforce means the workforce made up of direct care
workers.
(2)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.
.
(3)
(A)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.
(B)Rule for changes
requiring State legislationIn 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.
5.Prioritizing
analysis by National Health Care Workforce Commission
(a)Additional high
priority areaSubparagraph (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:
(vi)With respect to the direct care
workforce—
(I)a review of current and projected workforce
supply and demand, including a review of workforce size, employment settings,
turnover, compensation, and benefits;
(II)an analysis of the adequacy of existing
workforce data, data collection, and monitoring infrastructure; and
(III)recommendations
for new or additional uniform data elements across regions and States that are
necessary to track workforce supply, demand, and
shortages.
.
(b)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.
6.Grants and
technical assistance for data collection and monitoring
(a)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.
(b)A State, Indian tribe, or tribal organization receiving a
grant under
subsection (a) shall use the grant
for—
(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;
(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;
(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;
(4)the implementation
of such program;
(5)the sharing of information on best
practices on data collection and monitoring with other States, Indian tribes,
or tribal organizations; and
(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.
(c)
(1)In carrying out
subsection (a) the Secretary shall award
grants to not fewer than 5 States each year.
(2)Geographic and
demographic diversityIn
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.
(3)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.
(d)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.
(e)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).
(f)For purposes of this section:
(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.
(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.
(g)Authorization of
appropriationsThere are authorized to be appropriated such sums
as may be necessary to carry out this section for each of fiscal years 2012
through 2016.
7.Direct care
worker recruitment, retention, and education grant program
(a)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.
(b)A State or other eligible entity receiving a grant under
subsection (a) shall use the grant to—
(1)establish, expand,
or upgrade training programs and infrastructure for direct care workers;
(2)establish or
expand recruitment and retention programs for direct care workers, including
initiatives which—
(A)improve the wages
and benefits offered to direct care workers; and
(B)create and
implement career ladders for such workers; and
(3)develop or expand
programs that—
(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; and
(B)include approaches
such as remote monitoring, wellness, and prevention.
(c)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—
(1)in urban and rural
communities; and
(2)that serves a
diverse patient population, including with respect to—
(A)age;
(B)income
level;
(C)race and
ethnicity; and
(D)disability
status.
(d)The Secretary—
(1)may award grants
under this section for periods of not more than 3 years; and
(2)may extend the
period of a grant under this section by not more than 3 years.
(e)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.
(f)Baseline
measures and benchmarksAs 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.
(g)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.
(h)The Secretary may terminate a grant agreement 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 benchmark established under
subsection (f).
(i)As a condition on the receipt of a grant under this
section, the Secretary shall require each grantee to agree—
(1)to report to the
Secretary on the activities carried out with the grant, including, at the
request of the Secretary, periodic spending reports; and
(2)to allow the
Secretary to conduct periodic audits pertaining to funding received through the
grant.
(j)For purposes of this section, the term eligible
entity means—
(1)a State or
political subdivision of a State; or
(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.
8.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.
9.For purposes of this Act:
(1)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].
(2)The term
direct care workforce means the workforce made up of direct care
workers.
(3)The
term Secretary means the Secretary of Health and Human
Services.