Senate Bill No. 34

(By Senator Boley)

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[Introduced January 14, 1998;

referred to the Committee on Health and Human Resources; and then to the Committee on Finance.]

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A BILL to amend chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article ten-j, relating to the creation of a job opportunity program for individuals on welfare or aid for dependent children in order to create an effective personal assistance services act; short title; legislative policy; establishment of programs; designating the department of health and human resources as agency responsible for programs; demonstration projects; rules; and report.

Be it enacted by the Legislature of West Virginia:
That chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article ten-j, to read as follows:
ARTICLE 10J. JOB OPPORTUNITY PROGRAM AND PERSONAL ASSISTANCE SERVICES ACT.
§18-10J-1. Short title.

This article shall be known and may be cited as the "Job Opportunity Program and Personal Assistance Services Act".
§18-10J-2. Declaration of policy.
It is hereby declared to be the public policy of this state that:
(a) There is an increased need for personal assistance services to assist adults with disabilities or serious illnesses to permit them to remain and live, as independently as possible, in the residence and community of their choice or otherwise maintain their ability to work;
(b) Simultaneously to receiving assistance, individuals on welfare or families receiving aid for dependent children must seek gainful employment or perform volunteer work for a minimum of twenty hours per week or such assistance shall be discontinued;
(c) Priority recipients of personal assistance shall be those individuals with the most severe disabilities or illnesses, including, mental, cognitive, speech, sensory or physical impairments, and who are in danger of being moved from the living arrangement of their choice to a more restrictive and potentially more costly habitats;
(d) Recipients of personal assistance services or their guardians have the right to make decisions about, direct the provision of and control their personal attendant or personal assistant services by way of, establishing a mutually agreeable individualized service plan. This includes, but is not limited to, interviewing, hiring, managing, paying and terminating the relationship of their attendant or service provider;
(e) Any program receiving the allotted funds must have within its framework the following seven basic principles:
(1) Services are provided where they are needed, either at home, in the community or in a work setting;
(2) Services are available when needed, while being accessible twenty-four hours a day, seven days a week including back-up attendant services or services needed on an emergency basis;
(3) Eligible individuals shall contribute to the cost of services based on their ability to pay;
(4) Eligible individuals choose how, when and by whom services are provided;
(5) Eligibility is based on functional needs rather than on a medical diagnosis or type of disability;
(6) Health-related tasks can be delegated to or performed by unlicensed, yet qualified, personal attendants; and
(7) Personal attendants should receive adequate wages and benefits; and
(f) Subject to available funds, including program fees, medicaid, other block grants or medicare, including waivers or vouchers, other personal assistance projects shall be developed to increase the availability of services throughout the state in order to serve eligible individuals.
§18-10J-3. Definitions.
The following words and phrases when used in this article have the following meanings:
(a) "Personal assistance services" means the following services provided by an unlicensed person to a person with a disability or illness:
(1) Basic and ancillary services which enable eligible individuals to live in their homes and communities rather than in institutions and to carry out functions of daily living, self-care, mobility, communications and work;
(2) Personal care services including, but not limited to:
(A) Getting in and out of a bed, wheelchair or motor vehicle;
(B) Assistance with the performance of routine bodily functions and activities, including, but not limited to:
(i) Health maintenance and related tasks;
(ii) Bathing and personal hygiene;
(iii) Dressing and grooming;
(iv) Feeding;
(v) Child care; and
(C) Household services including, but not limited to:
(i) Meal preparation;
(ii) Shopping for essential and nonessential items;
(iii) Light, general housekeeping activities;
(iv) Laundry; and
(D) Assistance with the performance of cognitive functioning designed to assist individuals with:
(i) Money management;
(ii) Use of medications; and
(iii) Cuing with services provided in subdivisions (A), (B) and (C) as well as other important activities associated with day-to-day living;
(E) Facilitation of communication by providing sign language interpreters for persons who have speech or hearing impairments, or personal readers for those individuals who are legally blind;
(F) Transportation to stores, meetings, social or religious gatherings or to recreational or entertainment events, where the attendant acts as an escort or driver;
(b) "Individuals on welfare" means the population of individuals who receive either federal or state financial assistance who are receiving a larger portion of funds directly from the state from federal block grants and who are required to, within a five-year period, acquire gainful employment or volunteer their time for a minimum of twenty hours per week to continue receiving financial aid;
(c) "Designated agency" means the particular governmental agency that administers and oversees the operation of the job opportunity program under the provisions of this article. It shall be advised by a consumer responsive board in planning, startup, and delivery of personal assistance services. The designated agency, as necessary, may involve other state agencies including, but not limited to, the state board of education and profit and nonprofit service providers, to coordinate and provide services at the community level;
(d) "Consumer responsive board" means twelve persons composed of a majority of individuals receiving personal assistance services, or their advocates, and a designated member from each of the following: The developmental disabilities planning council, the West Virginia commission on aging, the statewide independent living council, the university affiliated center for developmental disabilities and the department of health and human resources;
(e) "Service providers" means health care providers or agencies, centers of independent living, senior citizen's centers and other providers, whether operating on a profit or charitable basis. This includes self employed or eligible individuals acting as employers. Service providers shall coordinate scheduling, train and credential individuals, or refer them for training or credentialing needed for such individuals to become qualified personal attendants. They shall also be responsible for salary administration as well as verifying that volunteer service hours were actually performed.
(f) "Eligible individual" and "consumer" mean any physically, cognitively or mentally impaired adult, or other adult who has a severe speech or hearing impairment, or is legally blind, or has a serious illness and, who:
(1) Experiences any physical, mental, cognitive, speech or sensory impairment which can be expected to recur or last for a given period of not less than twelve months, as determined by a mutually agreed upon, individualized functional assessment, between a representative of the designated agency or appointed designee and the eligible individual. The designated agency, as directed by the governing board, has the responsibility of determining eligibility based on the findings of these assessments;
(2) Is capable of selecting, supervising, training, and if needed, firing a personal attendant: Provided, That in the event such an individual is incompetent or otherwise incapable of making informed judgments, a legal guardian or family member may assume those responsibilities;
(3) Is capable of managing his or her own financial or legal affairs with or without the support of a legal guardian or family member; and
(4) Requires assistance to complete three or more functions enumerated under subsection (a) of this section.
(g) "Individualized service plan" means the initial or revised plan that includes:
(1) Specific personal assistance services based on the mutually agreed upon individualized functional assessment evaluation as provided for in subsection (a) of this section, to be provided in accordance with, and in conjunction with:
(i) Hours of service per week or month;
(ii) Day and time of services;
(iii) Alternate sources for attendant services;
(iv) Means to ensure back-up and emergency attendant services. These services shall include a method for consumers to access back-up and emergency services;
(v) Methods of service delivery, including vouchers, waivers, direct cash, agency providers or self-employed providers:
(vi) Frequency of reassessment, when necessary;
(vii) Means to adjust services and hours when changes in need occur;
(viii) Mechanism to coordinate attendant services with any other health care services received by the consumer;
(ix) Degree and frequency of supervision, if necessary, for the delivery of attendant services;
(x) Amount of copay cost-sharing, if any;
(xi) Outcome measures used to assess the quality of services;
(xii) Complaint and appeal process; and
(xiii) Name or names of personal attendants specifically providing services to the eligible individual being served.
(h) "Personal assistant or attendant" means a person of the consumer's choice who provides attendant care services for the eligible individual. Due to the skills required for performing personal assistant services, individuals on welfare are potential candidates for such job opportunities along with other individuals currently providing services or wishing to become a personal assistant. A personal assistant is not required to be proficient in all potential service areas and may have special skills, such as sign language interpreting;
(i) "Self-employed individual" means an independent provider who receives payment for services, works alone or with a team of individuals to provide personal assistant services. Such self-employed individuals shall assume the responsibility to pay FICA, unemployment insurance, state and federal taxes. A self-employed individual may be a family member, friend or neighbor of an eligible individual;
(j) "Personal assistant qualification" means the licensing, credentials, certification, experience or acquired training which may vary depending on the personal assistance services rendered. Minimum requirements shall be set by the designated agency as directed by the consumer board. The designated agency shall maintain a statewide database on each personal assistant, their qualifications, trustworthiness, integrity, honesty, prior employment history and criminal record;
(k) "Unlicensed person" means a personal assistant who is not licensed as a health care professional;
(l) "Health maintenance or related tasks" means tasks that can be done by an unlicensed person or which can be delegated to an unlicensed person after being trained by a health care professional such as a physician or registered nurse, in order that the unlicensed person becomes qualified to conduct such specific health-related tasks. Tasks include, but are not limited to: Dispensing medications, ventilator care and tube feedings;
(m) "Personal reader" means an individual who reads newspaper articles, mail, books, magazines and other material to an individual who is legally blind;
(n) "Appeal or complaint process" means the procedure to file an appeal or grievance if personal attendant services are perceived as being inadequate, unreliable or denied to an eligible individual or to an applicant seeking personal assistance services.
§18-10J-4. Program.
(a) Establishment. -- The designated agency shall establish the consumer responsive advisory board, develop programs of personal assistance services for eligible individuals and integrate, whenever possible, welfare participants within this program. The designated agency shall pay expenses incurred by the board in performing its duties and provide a reasonable stipend to those individuals not employed by the state.
(b) Solicitation of proposals. -- The designated agency shall solicit proposals to provide personal assistance services under this article. Service providers, self-employed individuals or eligible individuals acting as employers, shall submit proposals in the form and manner required by the designated agency.
(c) Proposal selection criteria. -- Proposals shall be selected, based on service priorities developed by the designated agency as defined by the consumer board: Provided, That priority shall be given to proposals that serve persons with severe disabilities and those at greatest risk of being institutionalized as determined by the designated agency.
(d) Agreements with service providers or self-employed individuals. -- In order to provide personal assistance services, the designated agency shall enter into agreements with service providers, self-employed individuals or eligible individuals acting as employers. Each agreement shall include, at minimum, the number of consumers to be served, a signed mutually agreeable individualized service plan and the criteria to be used for evaluating the provision of services.
(e) Consumer assessment reports. -- Determination of eligibility and the need for personal assistance services shall be supported by consumer assessment reports which shall be developed by the designated agency.
(f) Weekly hours of service. -- Each personal attendant shall work, not necessarily for the same eligible individual, a minimum of twenty hours a week, or as needed, but in no event may such work exceed forty hours, except when exceptional circumstances require otherwise.
(g) Waiting list. -- The designated agency and service providers shall develop a waiting list, by service priority, for those eligible individuals who cannot be served or accommodated immediately.
(h) Welfare recipients. -- With federal block grants being distributed to each state and the need for certain individuals to find gainful employment or perform volunteer services twenty hours each week in order to continue receiving financial aid, the public at large should be solicited in order to identify those persons possessing the potential to serve as personal assistants. Upon making such identifications, appropriate training may be offered and incorporated into the program to provide personal assistant services statewide.
(i) Training of eligible individuals. -- The designated agency shall provide voluntary training to eligible individuals to select, manage, train and dismiss personal attendants. As part of this training, they shall receive information regarding FICA, state and federal taxes and other reporting responsibilities for individuals acting as employers under the provisions of this article.
(j) Quality assurance and safeguard. -- A quality assurance instrument based on the provisions of section two of this article shall be instituted. Quality is determined by the results obtained in relation to the life outcomes of persons with disabilities. This criteria includes, but is not limited to: Integration into the community, increased mobility, increased productivity, employment and self-direction. A mechanism to protect against abuse, neglect or exploitation of consumers shall be developed. Consumer satisfaction with service shall be construed as an important component toward the purposes of this article.
§18-10J-5. Fundings.
(a) Use of funds. -- Funds made available under this article shall be used solely for planning, designing, delivering and administering personal assistance services, and training of personal attendants and eligible individuals.
(b) Program moneys. -- Programs for personal assistance services, under this article, shall use program funds from sources, including state and federal block grant funds, other federal funds, program fees, vouchers or waivers and other allotted moneys. The designated agency shall apply for all potentially available funding sources.
(c) Program fee schedule. -- The designated agency shall develop, wherever practical, a sliding fee schedule for personal attendant services.
(d) Disbursement of funds. -- Funds shall be disbursed in a manner which ensures a maximum consumer control with the service of the program.
(e) Availability of services. -- Personal assistance services shall be available to the extent they are funded through annual appropriations of state and federal funds, program fees and other allotted moneys.
§18-10J-6. Demonstration projects.
The designated agency may initiate further demonstration projects as funding becomes available. Funding may be derived from a variety of sources, which may include, but is not limited to, state and federal appropriations, program fees and other allotted moneys. These funds may be used to test new ways of providing personal assistance services, as well as to conduct specific research into ways to best provide personal assistance services within the state.
§18-10J-7. Rules.
The designated agency, as directed by the consumer responsive board, shall propose rules, subject to legislative approval, as may be necessary for the effective administration of any programs of personal assistance services provided for under this article.
§18-10J-8. Report.
The designated agency shall appoint a consumer responsive board to oversee the project on an ongoing basis. One year after the initiation of the demonstration project, the consumer board shall report to any legislative committee having jurisdiction over appropriations and human resource services that requests a report. This report shall include at a minimum the following information:
(a) A summary of the personal assistance services provided under this article, including, but not limited to, a description of service models utilized, costs related to particular service models, units of service distributed per consumer and consumer demographics;
(b) A summary of how many welfare recipients were utilized in the program; and
(c) Recommendations regarding the direction of funding for the demonstration projects for upcoming fiscal years.



NOTE: The purpose of this bill is to create a "Job Opportunity Program and Personal Assistance Resources Act" to be administered by the Department of Health and Human Resources in order to provide jobs and basic and ancillary services which enable eligible individuals with severe disabilities, to live in their homes and communities rather than in institutions, and to carry out functions of daily living, self-care, mobility and employment.

This article is new; therefore, strike-throughs and underscoring have been omitted.