PDF Or Home Care Registry License? the Answer May Surprise You ...

DO YOU NEED A HOME CARE AGENCY OR HOME CARE REGISTRY LICENSE?

THE ANSWER MAY SURPRISE YOU!

Paula G. Sanders, Esquire1 Post & Schell, P.C.

17 North 2nd Street, 12th Floor Harrisburg, PA 17101 717-612-6027

psanders@

On December 12, 2009, the Pennsylvania Department of Health (the

"Department") published final regulations implementing Act 69 of 2006 (Act 69). 39 Pa.

Bulletin 6958 (12/12/2009). Act 69 required the Department to license entities that

furnish specified "home care services" and created two new categories of licensed health care facilities ? "home care agencies"2 and "home care registries"3 under the Health Care

Facilities Act. The new regulations, which were effective on December 12, 2009,

establish the procedures for obtaining the appropriate licensure as well as operating

requirements for covered entities. Entities that are currently providing home care

services must obtain licenses by February 12, 2010.

The Department will require entities to obtain a separate license for each location

that provides home care services, even though such services might be offered in

1

Ms. Sanders is a partner in the Harrisburg office of Post & Schell, P.C. She may be reached at

PSanders@ and 717-612-6027.

2

Act 69 defines home care agency as "an organization, exclusive of a home health care agency, that

supplies, arranges or schedules employees to provide or perform activities of daily living or

instrumental activities of daily living or companionship services or specialized care on an hourly,

shift or continual basis to a consumer in the consumer's place of residence or other independent

living environment for which the organization receives a fee, consideration or compensation of

any kind." Id.

3

A home care registry is "an organization or business entity or part of an organization or business

entity that supplies, arranges, or refers independent contractors to provide home care services, as

directed by the consumer or the consumer's representatives, in the consumer's place of residence

or other independent living environment for which the registry receives a fee, consideration or

compensation of any kind.

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conjunction with services provided by, or located in, another licensed facility such as a personal care home or nursing care facility.4

What is a home care agency (HCA) or home care registry (HCR)?

An HCA or HCR provides or supplies information about people who provide

home care services to individuals in their homes or other independent living

environments. Independent living environments include cottages and apartment units

located on the campus of a skilled nursing facility, personal care home or continuing care

retirement community (CCRC), as well as any other free-standing home or congregate

living building. To determine whether you might need an HCA or HCR license, ask

whether you provide or recommend "home care services" to individuals in their home or

apartment.

What are home care services?

Home care services are instrumental activities of daily living and include:

Assistance with self-administered medications.

Personal care such as assistance with personal hygiene, dressing and

feeding.

Homemaking such as assistance with household tasks, housekeeping,

shopping, meal planning and preparation.

Transportation.

Companionship.

Respite care such as assistance and support provided to the family.

Other non-skilled services.

4

The only entities that may provide home care services without obtaining an HCA or HCR license

are: licensed home health care agencies, durable medical equipment providers, volunteer

providers, or entities providing financial management services or supports coordination services or

both.

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The Department has advised that it will not be granting exceptions to the licensure requirements based on the level or number of home care services provided by the HCA or HCR. If you supply home care services to consumers, you must get a license. If you only provide "light housekeeping," do you need a license?

According to the Department, light housekeeping such as dusting or linen services, is a home care service. Light housekeeping includes services provided by an employee of the facility or through a contracted entity. The individual providing the service would be considered a direct care worker who must meet the competency and other requirements of the regulation. If you only provide van or jitney services to local shopping and entertainment centers or to doctors' offices, do you need a HCA or HCR license?

Any transportation services you provide to consumers who live independently are considered to be home care services and will require you to obtain an HCA or HCR license. The Department considers transportation to be assistance with instrumental activities of daily living, regardless of whether it is provided via jitney owned by the facility or a contracted entity or via the direct care worker's personal vehicle. What constitutes meal preparation?

Meal preparation is assistance with preparation of a meal in the consumer's home or other independent living environment. The delivery of pre-made or ready-to-eat meals is not considered a home care services. Likewise, the provision of meals in a communal area is not considered a home care service.

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Do you provide consumers with a list of private duty aides or companions?

If you maintain and provide consumers with a listing of direct care workers, you

may need to obtain a license. The maintaining of such a "roster" may convert you to an

HCR, even if you do not directly employ the direct care workers on your "list." The

licensure requirements do not apply to a private contract or arrangement entered into by a

consumer and caregiver, provided that the caregiver was not supplied, arranged,

scheduled or referred to the consumer by a HCA or HCR. If a consumer enters into an

arrangement with a caregiver supplied, arranged, scheduled or referred by an HCA or

HCR, the caregiver will be deemed to be a direct care worker subject to the HCA/HCR

regulations. The HCA or HCR that employs or rosters the direct care worker will be

responsible for ensuring that the direct care worker meets all regulatory requirements.

What are some of the requirements an HCA or HCR must follow?

According to the Department's website, an HCA or HCR 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:

o Possess a valid nurses license; or

o Demonstrate competency by passing a competency examination developed by the HCA/HCR; or

o 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;

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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:

o Right to be involved in the service planning process;

o Right to receive services with reasonable accommodations;

o Right to receive ten (10) calendar days advance notice of termination of service(s);

o 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:

o 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.

o DOH contact information regarding licensure requirements;

o DOH complaint hotline number.

o Telephone number for the local Ombudsman and competency requirements for direct care workers.

o Whether the direct care worker is an employee or independent contractor.

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o 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.

HCAs or HCRs 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.

If you think you may need to be licensed, what should you do?

Immediately review the services you provide to people in your community

who do not reside in your personal care home or nursing facility.

Review the new regulations.

Obtain the Department's licensure packet at:



ardDetails.asp?msgid=2253&msgindex=8&Selection=All&isHospice=0 .

The packet includes a licensure application, a disclosure of ownership

form, an initial written survey, a Civil Rights Survey, the Department's

form "Information Requested of Health Care Providers Applying for a

License to Operate a Health Care Facility," and a Checklist.

Determine how you will structure the future delivery of home care

services.

Prepare the required consumer informational packet.

Evaluate whether you need a separate contract for these services.

What if you don't apply for a license?

An article published in the Pittsburgh Post-Gazette on December 15, 2009, reported that Stacy Mitchell, the Department's Deputy Secretary for Quality Assurance, said state officials have been in contact with more than 400 agencies they know of that fall under the new regulations, but twice that number may exist in the state. The Department is trying to spread the word and have all agencies apply for a license by a Feb. 10 deadline. According to the article, Ms. Mitchell said the state is "not out to punish those that do not comply . . . but if agencies ignore requests to apply for licensing, they could face cease-and-desist orders." The article further stated that Ms. Mitchell noted "the [D]epartment is counting on licensed facilities following the rules to report any competitors they know of who ignore the new requirements after Feb. 10." The Post

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