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REFERENCE TITLE: in-home personal care services agencies |
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State of Arizona House of Representatives Forty-ninth Legislature Second Regular Session 2010
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HB 2696 |
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Introduced by Representatives Campbell CH: Campbell CL
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AN ACT
Amending title 36, Arizona Revised Statutes, by adding chapter 11; amending sections 41-1758 and 41-1758.01, Arizona Revised Statutes; relating to in‑home personal care services agencies.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 36, Arizona Revised Statutes, is amended by adding chapter 11, to read:
CHAPTER 11
IN-HOME PERSONAL CARE SERVICES AGENCIES
ARTICLE 1. GENERAL PROVISIONS
36-1301. Definitions
In this chapter, unless the context otherwise requires:
1. "Agency" means an in-home personal care services agency that is licensed pursuant to this chapter to provide in-home personal care services to clients by an in-home personal care ATTENDANT.
2. "Client" means a person who requests in-home personal care services from an in-home personal care services agency in the person's place of residence.
3. "Department" means the department of health services.
4. "In-home personal care attendant" means a person who is employed by an in-home personal care services agency to assist a client or clients with in-home personal care services.
5. "In-home personal care services":
(a) Includes:
(i) Activities of daily living.
(ii) Ambulation.
(iii) Transfer.
(iv) Toileting.
(v) Personal hygiene.
(vi) Feeding.
(vii) A reminder to take medication.
(viii) Letter writing.
(ix) Reading.
(x) Monitoring and companionship for a client who cannot safely be left alone.
(xi) Light housecleaning, laundry and food preparation.
(xii) Essential errands, such as grocery shopping and securing medical supplies and household items.
(xiii) Providing intermittent assistance with a client's personal and physical needs, such as washing hair, bathing and dressing.
(b) Does not include:
(i) Services provided by a licensed health care institution to its patients.
(ii) Services that require the order of a health care professional to be lawfully performed.
(iii) Skilled medical services that must be performed by a person who is licensed pursuant to title 32, chapter 15.
(iv) Home health services provided by home health agencies. For the purposes of this item, "home health services" has the same meaning prescribed in section 36-151.
36-1302. In-home personal care services agencies; licensure; application; exemptions
A. Beginning July 1, 2011, an agency that wishes to provide in-home personal care services must have a current license issued by the department. Each applicant for licensure must submit an application to the department on a form prescribed and furnished by the department and must include with the application an initial application fee prescribed by the department by rule. The application must contain:
1. The name and location of the agency.
2. The name of the person who owns the agency and the name of the person who directs or manages the agency.
3. Other information the department determines necessary to process the application.
B. The department shall issue a license to each applicant it determines meets the requirements of this chapter and rules adopted by the department pursuant to this chapter. The director may deny a license if an applicant or anyone in a business relationship with the applicant, including controlling persons, has had a license to operate a health care institution denied, revoked or suspended or a license or certificate issued by a health profession regulatory board pursuant to title 32 or issued by a state agency pursuant to chapter 6, article 7 or chapter 17 of this title denied, revoked or suspended or has a licensing history of recent serious violations occurring in this state or in another state that posed a direct risk to the life, health or safety of patients or residents.
C. A regular license is valid for up to two years and may be renewed on payment of an application for renewal fee prescribed by the director by rule if the agency is in substantial compliance with this chapter and rules adopted pursuant to this chapter.
D. A person who operates an agency must display in a prominent place in the agency the license issued pursuant to this section.
E. The department shall make a list of agencies licensed pursuant to this section available to the public on request.
F. The following are exempt from the licensure requirements of this section:
1. An individual who independently provides in-home personal care services and who does not contract with or is not employed by an agency that provides in-home personal care services.
2. A religious corporation, church or religious society or denomination that provides in-home personal care services on a volunteer basis.
3. An individual who provides in-home personal care services on a volunteer basis without compensation other than reimbursement of actual expenses incurred.
4. Contractors that provide services to persons with developmental disabilities pursuant to chapter 5.1 of this title.
36-1303. Fees; deposit
A. The director by rule shall establish fees for conducting on-site inspections, evaluations and verifications of information submitted with an application and other activities related to licensure of agencies pursuant to this chapter.
B. The department shall deposit fees collected pursuant to this chapter in the in-home personal care services regulation fund established by section 36-1312.
36-1304. Employees; fingerprinting; background investigations
A. As a condition of licensure or continued licensure of an agency and as a condition of employment by an agency, each agency owner and manager and each in-home personal care attendant must have a valid fingerprint clearance card that is issued pursuant to title 41, chapter 12, article 3.1 or must apply for a fingerprint clearance card within twenty working days after employment.
B. For new employees hired from and after June 30, 2011, each agency owner must document the owner's good faith effort to:
1. Contact previous employers to obtain information or recommendations that may be relevant to a person's fitness to provide in-home personal care services.
2. Verify the current status of a person's fingerprint clearance card.
C. An agency shall not allow a person to continue to provide in-home personal care services if the person has been denied a fingerprint clearance card pursuant to title 41, chapter 12, article 3.1.
D. Notwithstanding the requirements of section 41-1758.02, subsection B, a person who provides in-home personal care services after meeting the fingerprinting and criminal records check requirements of this section is not required to meet the fingerprinting and criminal records check requirements of this section again if that person remains employed by the same employer or changes employment within two years after satisfying the requirements of this section. For the purposes of this subsection, If the employer changes through sale, lease or operation of law, a person is deemed to be employed by the same employer if that person remains employed by the new employer.
E. If a person's employment record contains a six month or longer time frame during which the person was not employed by any employer to provide in‑home personal care services, the person shall submit a completed application with a new set of fingerprints to the department of public safety.
F. A health professional who has a valid fingerprint clearance card as a condition of licensure or certification by a health profession regulatory board pursuant to title 32 is not required to submit an additional set of fingerprints to the department of public safety pursuant to this section.
36-1305. Competency test; continuing education; training; documentation
A. As a condition of licensure or continued licensure of an agency and as a condition of employment by an agency, each in-home PERSONAL care attendant must do both of the following:
1. Pass a competency test that is designed and administered by the agency. An attendant who does not pass the competency test must participate in an eight hour training program designed and administered by the agency. The competency test must be approved by the department and must comply either with minimum standards prescribed by the department or with Arizona long-term care system guidelines.
2. Complete a continuing education requirement of ten hours per year as prescribed by the department by rule. The department may grant an exemption from continuing education requirements on a demonstration of good cause as determined by the department. The agency shall submit proof that each of its attendants has met the continuing education requirement in a manner prescribed by the department by rule.
B. Each agency shall provide four hours of in-service training annually to all in-home personal care attendants.
C. Each agency shall maintain records to document the agency's compliance with the requirements of this section.
D. The director may:
1. Prescribe by rule standards for the competency test and the training program required pursuant to this section.
2. Grant, deny, suspend or revoke approval of an agency's competency test or training program.
3. Impose a civil penalty pursuant to section 36-1311 for the use of a competency test or training program that has not been approved by the department.
36-1306. Inspections
A. Every two years, on license renewal, the department may conduct inspections of any agency and work site to confirm the agency's compliance with the requirements of this chapter and department rules.
B. The department on its own motion, or pursuant to a complaint from the public, may investigate any evidence that a licensee has violated this chapter. The department shall establish a system to track all complaints it receives.
C. Subject to the confidentiality requirements of chapter 4, articles 4 and 5 of this title, title 12, chapter 13, article 7.1 and section 12‑2235, the licensee shall keep current department inspection reports at the agency. Unless federal law requires otherwise, the licensee shall conspicuously post a notice that identifies the location at that agency where the inspection reports are available for review.
36-1307. Suspension or revocation; hearing; inspections
A. After a hearing pursuant to title 41, chapter 6, article 10, the director may suspend or revoke an agency's license if its owners, officers, agents or employees:
1. Violate this chapter or rules adopted pursuant to this chapter.
2. Have been, are or may continue to be in substantial violation of the requirements for licensure and as a result the health or safety of one or more clients or the general public is in immediate danger.
B. A licensee's refusal to allow the department or its employees or agents the right to inspect its premises is reasonable cause to believe that a substantial violation under subsection A, paragraph 2 exists.
C. If the director determines that there is reasonable cause to believe an agency is in violation of the requirements of this chapter, the director or any employee or agent designated by the director may enter, during business hours, the premises of any agency that is licensed or required to be licensed pursuant to this chapter to determine if the agency is complying with the requirements of this chapter. If any agency has submitted an application for licensure, the application constitutes permission for entry or inspection of the premises while the application is pending and, if the agency is licensed, for the duration of the license. If an inspection reveals that the agency is in violation of this chapter, the director may act as authorized by this chapter. An agency whose license is suspended or revoked in accordance with this section is subject to inspection on application for relicensure or reinstatement of the license.
36-1308. Removal of licensee; temporary management; continued operation
A. If the director reasonably believes that a violation of this chapter by a licensee endangers the health, safety or welfare of one or more of the licensee's clients, in addition to other remedies provided by this chapter, the director may enter into an agreement with the licensee or bring an action requesting the superior court to:
1. Remove the licensee's administrative officers, agents or employees by injunction, enjoin the licensee from continued operation and revoke the license.
2. Appoint temporary personnel to continue operation of the agency under conditions and requirements set by the court pending correction of the violation and restoration of the licensee, revocation of the license or correction of the violation and change of ownership.
B. An action pursuant to subsection A shall be brought by the attorney general in the superior court in the county in which the agency is located.
36-1309. Unlicensed operation; prohibition; injunction
The attorney general may bring an action for an injunction to enjoin the continued operation of a business that is not licensed pursuant to this chapter or that is not in compliance with the requirements of this chapter or rules adopted pursuant to this chapter.
36-1310. Violation; classification
A. A person who operates an agency without having a current license issued pursuant to this chapter is guilty of a class 3 misdemeanor.
B. Each day a violation continues constitutes a separate violation.
36-1311. Civil penalties
A. The director may assess and collect a civil penalty of not more than five hundred dollars for each violation of this chapter or a rule adopted pursuant to this chapter. Each day a violation occurs constitutes a separate violation.
B. The director may issue a notice of assessment that includes the amount of the civil penalty.
C. An agency may appeal the assessment of a civil penalty by requesting a hearing pursuant to title 41, chapter 6, article 10. If a civil penalty is appealed, the director shall not take further action to enforce or collect the assessment until after the hearing.
D. When determining the amount of the civil penalty, the director shall consider the following:
1. Whether the agency repeatedly violated this chapter.
2. Whether there is a pattern of noncompliance.
3. The type of violation.
4. The severity of the violation.
5. The potential for an occurrence of harm.
6. The threat to health and safety.
7. The number of persons affected by the violation.
8. The number of violations.
9. The duration of the violation.
E. The attorney general or the county attorney shall bring an action to enforce the collection of a civil penalty in the name of this state in the justice court or the superior court in the county in which the violation occurred.
F. The director shall transmit civil penalties collected pursuant to this section to the state treasurer for deposit in the state general fund.
36-1312. In-home personal care services regulation fund
A. The in-home personal care services regulation fund is established consisting of fees collected pursuant to this chapter. The department shall administer the fund. Except as otherwise required, the department shall deposit, pursuant to sections 35‑146 and 35-147, all monies it receives pursuant to this chapter in the fund.
B. On notice from the department, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund.
C. Monies in the fund are subject to section 35-143.01.
Sec. 2. Section 41-1758, Arizona Revised Statutes, is amended to read:
41-1758. Definitions
In this article, unless the context otherwise requires:
1. "Agency" means the supreme court, the department of economic security, the department of education, the department of health services, the department of juvenile corrections, the department of emergency and military affairs, the board of fingerprinting or the board of examiners of nursing care institution administrators and assisted living facility managers.
2. "Division" means the fingerprinting division in the department of public safety.
3. "Good cause exception" means the issuance of a fingerprint clearance card to an employee pursuant to section 41‑619.55.
4. "Person" means a person who is required to be fingerprinted pursuant to any of the following:
(a) Section 8‑105.
(b) Section 8‑322.
(c) Section 8‑509.
(d) Section 8‑802.
(e) Section 15‑183.
(f) Section 15-503.
(g) Section 15‑512.
(h) Section 15‑534.
(i) Section 15‑1330.
(j) Section 15-1881.
(k) Section 26-103.
(l) Section 36-411.
(m) Section 36‑425.03.
(n) Section 36-446.04.
(o) Section 36‑594.01.
(p) Section 36‑594.02.
(q) Section 36‑882.
(r) Section 36‑883.02.
(s) Section 36‑897.01.
(t) Section 36‑897.03.
(u) Section 36-1304.
(u) (v) Section 36‑3008.
(v) (w) Section 41-619.52.
(w) (x) Section 41-619.53.
(x) (y) Section 41‑1964.
(y) (z) Section 41‑1967.01.
(z) (aa) Section 41‑1968.
(aa) (bb) Section 41-1969.
(bb) (cc) Section 41‑2814.
(cc) (dd) Section 46‑141, subsection A.
(dd) (ee) Section 46‑321.
5. "Vulnerable adult" has the same meaning prescribed in section 13‑3623.
Sec. 3. Section 41-1758.01, Arizona Revised Statutes, is amended to read:
41-1758.01. Fingerprinting division; duties
The fingerprinting division is established in the department of public safety and shall:
1. Conduct fingerprint background checks for persons and applicants who are seeking employment with licensees, contract providers and state agencies or seeking employment or educational opportunities with agencies that require fingerprint background checks pursuant to sections 8‑105, 8‑322, 8-509, 8‑802, 15‑183, 15‑503, 15-512, 15‑534, 15‑1330, 15‑1881, 26-103, 36‑411, 36‑425.03, 36-446.04, 36‑594.01, 36‑594.02, 36‑882, 36‑883.02, 36‑897.01, 36‑897.03, 36-1304, 36‑3008, 41‑619.52, 41‑619.53, 41‑1964, 41‑1967.01, 41‑1968, 41‑1969 and 41‑2814, section 46‑141, subsection A and section 46‑321.
2. Issue fingerprint clearance cards. On issuance, a fingerprint clearance card becomes the personal property of the cardholder and the cardholder shall retain possession of the fingerprint clearance card.
3. On submission of an application for a fingerprint clearance card, collect the fees established by the board of fingerprinting pursuant to section 41‑619.53 and deposit, pursuant to sections 35‑146 and 35‑147, the monies collected in the board of fingerprinting fund.
4. Inform in writing each person who submits fingerprints for a fingerprint background check of the person's right to petition the board of fingerprinting for a good cause exception pursuant to sections 41‑1758.03 and 41-1758.07.
5. Administer and enforce this article.
Sec. 4. Performance audit; report
A. On or before October 1, 2013, the auditor general shall complete a performance audit, as defined in section 41-1278, Arizona Revised Statutes, of the regulation of in-home personal care services agencies by the department of health services.
B. The auditor general shall issue a public report of the performance audit, including findings and specific recommendations for statutory and administrative changes to improve or eliminate the department's regulation of in-home personal care services agencies. The auditor general shall submit copies of the report to the governor, the president of the senate, the speaker of the house of representatives, the secretary of state and the director of the Arizona state library, archives and public records.