Citations Affected: IC 5-14; IC 12-9; IC 16-18; IC 16-27; IC 22-1; noncode.
Synopsis: Personal services agencies. Establishes a program for the
licensing and regulation of personal services agencies. Provides that
home health agencies and personal services agencies are approved to
provide home health services under certain federal waivers. Provides
that home health services includes services that are required to be
ordered or performed by certain health care professionals. Requires a
personal services agency to comply with employee criminal history
check requirements. Requires a personal services agency to be licensed
by the state department of health after January 1, 2006. Provides that
a home health agency that operates a personal services agency is not
required to obtain a license to operate the personal services agency.
Makes operating or advertising an unlicensed personal services agency
a Class A misdemeanor. Requires a placement agency to provide the
consumer and worker with certain information when a home care
services worker is placed in the consumer's home. Allows the state
department of health to a impose civil penalty against a placement
agency for failing to provide the notice. Makes conforming changes.
Relocates the definition of "attendant care services".
Effective: July 1, 2005.
January 19, 2005, read first time and referred to Committee on Public Health.
February 21, 2005, amended, reported _ Do Pass.
A BILL FOR AN ACT to amend the Indiana Code concerning
readable media, electronically stored data, or any other material,
regardless of form or characteristics.
"Standard-sized documents" includes all documents that can be mechanically reproduced (without mechanical reduction) on paper sized eight and one-half (8 1/2) inches by eleven (11) inches or eight and one-half (8 1/2) inches by fourteen (14) inches.
"Trade secret" has the meaning set forth in IC 24-2-3-2.
"Work product of an attorney" means information compiled by an attorney in reasonable anticipation of litigation and includes the attorney's:
(1) notes and statements taken during interviews of prospective witnesses; and
(2) legal research or records, correspondence, reports, or memoranda to the extent that each contains the attorney's opinions, theories, or conclusions.
This definition does not restrict the application of any exception under section 4 of this chapter.
agency", for purposes of IC 16-27-4, has the meaning set forth in
FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 2.2. As used in this
chapter, "services" includes:
(1) home health services (as defined in IC 16-27-1-5);
(2) any services such as homemaker, companion, sitter, or handyman services provided by a home health agency in the temporary or permanent residence of a patient or client of the home health agency; and
(3) personal services.
or client's temporary or permanent residence if that person's limited
criminal history indicates that the person has been convicted of any of
(1) Rape (IC 35-42-4-1).
(2) Criminal deviate conduct (IC 35-42-4-2).
(3) Exploitation of an endangered adult (IC 35-46-1-12).
(4) Failure to report battery, neglect, or exploitation of an endangered adult (IC 35-46-1-13).
(5) Theft (IC 35-43-4), if the conviction for theft occurred less than ten (10) years before the person's employment application date.
(b) A home health agency or personal services agency may not employ a person to provide services in a patient's or client's temporary or permanent residence for more than twenty-one (21) calendar days without receipt of that person's limited criminal history required by section 4 of this chapter, unless the Indiana central repository for criminal history information under IC 10-13-3 is solely responsible for failing to provide the person's limited criminal history to the home health agency or personal services agency within the time required under this subsection.
JULY 1, 2005]:
Chapter 4. Licensure of Personal Services Agencies
Sec. 1. As used in this chapter, "client" means an individual who has been accepted to receive personal services from a personal services agency.
Sec. 2. As used in this chapter, "parent personal services agency" means the personal services agency that develops and maintains administrative and fiscal control over a branch office.
Sec. 3. As used in this chapter, "personal representative" means a person who has legal authority to act on behalf of the client with regard to the action to be taken.
Sec. 4. (a) As used in this chapter, "personal services" means:
(1) attendant care services;
(2) homemaker services that assist with or perform household tasks, including housekeeping, shopping, laundry, meal planning and preparation, and cleaning; and
(3) companion services that provide fellowship, care, and protection for a client, including transportation, letter writing, mail reading, and escort services;
that are provided to a client at the client's residence.
(b) The term does not apply to the following:
(1) Incidental services provided by a licensed health facility to patients of the licensed health facility.
(2) Services provided by employers or membership organizations for their employees, members, and families of the employees or members if the services are not the predominant purpose of the employer or the membership organization's business.
(3) Services that are allowed to be performed by a personal services attendant under IC 12-10-17.
(4) Services that require the order of a health care professional for the services to be lawfully performed in Indiana.
Sec. 5. (a) As used in this chapter, "personal services agency" means a person that provides or offers to provide a personal service for compensation, whether through the agency's own employees or by arrangement with another person.
(b) The term does not include the following:
(1) An individual who provides personal services only to the individual's family and to not more than two (2) individuals per residence and not more than a total of six (6) clients concurrently. As used in this subdivision, "family" means the
individual's spouse, children, parent, parent-in-law,
grandparent, grandchild, brother, brother-in-law, sister,
sister-in-law, aunt, aunt-in-law, uncle, uncle-in-law, niece, and
(2) A local health department as described in IC 16-20 or IC 16-22-8.
(3) A person that:
(A) is approved by the division of disability, aging, and rehabilitative services to provide supported living services or supported living support to individuals with developmental disabilities;
(B) is subject to rules adopted under IC 12-11-2.1; and
(C) serves only individuals with developmental disabilities who are in a placement authorized under IC 12-11-2.1-4.
Sec. 6. (a) To operate a personal services agency, a person must obtain a license from the state health commissioner. A personal services agency may not be opened, operated, managed, maintained, or conduct business without a license from the state department. Each parent personal services agency must obtain a separate license.
(b) A parent personal services agency may maintain branch offices that operate under the license of the parent personal services agency. Each branch office must be:
(1) at a location or site from which the personal services agency provides services;
(2) owned and controlled by the parent personal services agency; and
(3) located within a radius of one hundred twenty (120) miles of the parent personal services agency.
(c) A license is required for any personal services agency providing services in Indiana. An out-of-state personal services agency must be authorized by the secretary of state to conduct business in Indiana and have a branch office located in Indiana.
(d) Application for a license to operate a personal services agency must be made on a form provided by the state department and must be accompanied by a nonrefundable fee established by the state department. The application may not require any information except as required under this chapter.
(e) After receiving a completed application that demonstrates prima facie compliance with the requirements of this chapter and the fee required by subsection (d), the state department shall issue a temporary license to operate a personal services agency for a
period of up to ninety (90) days pending an onsite inspection by the
(f) The state department may extend the ninety (90) day period for the temporary license set in subsection (e) for a total period of one hundred twenty (120) days based on the circumstances warranting the extension. Each extension may not exceed fifteen (15) days. In the event the state department fails to complete the onsite inspection or notify the applicant of the inspection results within that ninety (90) period set in subsection (e), the state department shall extend the ninety (90) day period until the state department has completed the onsite inspection and notified the applicant of the results of the inspection. The personal services agency must provide at least three (3) documented clients for review, which may include open and closed client files. If the state department approves the application, the state department shall issue a license to the applicant.
(g) Subject to subsection (h), in conducting an onsite inspection, the state department shall receive copies of all documents necessary to make a determination of the personal services agency's compliance with the requirements of this chapter. The personal services agency must produce documents requested by the inspection surveyor within twenty-four (24) hours after the documents are requested.
(h) The state department's consideration of the application for licensure, an application for license renewal, or an investigation and its onsite reviews in conjunction with those actions are limited to determining the personal service agency's compliance with the requirements of this chapter or permitting or aiding an illegal act in a personal services agency.
(i) A license expires three (3) years from the date of issuance of the temporary license under subsection (e). However, the state department may issue an initial license for a period of less than three (3) years to stagger the expiration dates. The licensee shall notify the state department in writing at least thirty (30) days in advance of closing or selling the personal services agency.
(j) A personal services agency license may not be transferred or assigned. Upon sale, assignment, lease, or other transfer, including transfers that qualify as a change in ownership, the new owner or person in interest must obtain a license from the state department under this chapter before maintaining, operating, or conducting the personal services agency.
(k) A personal services agency that is operated by a home health
agency licensed under IC 16-27-1 is subject to the requirements of
this chapter and not IC 16-27-1. The home health agency is not
subject to the requirements of this chapter. A home health agency
that is licensed under IC 16-27-1 is not required to obtain a license
under this chapter.
(l) If a person who is licensed to operate a personal services agency is also licensed to operate a home health agency under IC 16-27-1, an onsite inspection for renewal of the person's personal services agency license must, to the extent feasible, be conducted at the same time as an onsite inspection of the home health agency license.
Sec. 7. (a) The state department shall investigate a report of an unlicensed personal services agency operation and report its findings to the attorney general.
(b) The attorney general may do the following:
(1) Seek an injunction in the circuit or superior court of the county in which the unlicensed home health agency is located.
(2) Prosecute violations under section 23 of this chapter.
Sec. 8. (a) If a personal services agency is aware that the client's medical or health condition has become unstable or unpredictable, the personal services agency shall notify the client, the client's personal representative, a family member, other relative of the client, or other person identified by the client of the need for a referral for medical or health services. The notification may be given in writing or orally and must be documented in the client's record with the personal services agency.
(b) The personal services agency may continue to provide personal services for a client with an unstable or unpredictable medical or health condition but may not manage or represent itself as able to manage the client's medical or health condition.
Sec. 9. (a) A personal services agency shall employ an individual to act as the personal services agency's manager. The manager is responsible for the organization and daily operation of the personal services agency.
(b) The manager may designate in writing one (1) or more individuals to act on behalf of or to perform any or all of the responsibilities of the personal services agency's manager under this chapter.
Sec. 10. The personal services agency's manager or the manager's designee shall prepare a service plan for a client before providing personal services for the client. A permanent change to the service plan requires a written change to the service plan. The
service plan must:
(1) be in writing, dated, and signed by the individual who prepared it;
(2) list the types and schedule of services to be provided; and
(3) state that the services to be provided to the client are subject to the client's right to temporarily suspend, permanently terminate, temporarily add, or permanently add the provision of any service. All permanent changes require a change in the written service plan.
Sec. 11. The personal services agency's manager or the manager's designee shall conduct a client satisfaction review with the client every seventy-six (76) to one hundred four (104) days to discuss the services being provided and determine if any change in the plan of services should occur. The review with the client may be in person or by telephone. This client satisfaction review must:
(1) be put in writing; and
(2) be signed and dated by the individual conducting the review.
Sec. 12. The personal services agency shall provide the client or the client's personal representative with the personal services agency's written statement of client rights before or within seven (7) days of providing services to the client. The statement of client rights must include the following information:
(1) The client has the right to have the client's property treated with respect.
(2) The client has the right to temporarily suspend, permanently terminate, temporarily add, or permanently add services in the service plan.
(3) The client has the right to file grievances regarding services furnished or regarding the lack of respect for property by the personal services agency and is not subject to discrimination or reprisal for filing a grievance.
(4) The client has the right to be free from verbal, physical, and psychological abuse and to be treated with dignity.
(5) A statement that it is not within the scope of the personal services agency's license to manage the medical and health conditions of the client if a condition becomes unstable or unpredictable.
(6) The charges for services provided by the personal services agency.
(7) The personal services agency's policy for notifying the client of any increase in the cost of services.
or agent and determination by the agency that the employee or
agent is competent to perform the attendant care services task
must occur before the employee or agent performs that task for a
client without direct agency supervision.
(c) The content of the evaluation and training conducted under this section, including the date and the signature of the person conducting the evaluation and training, must be documented for each employee or agent who performs personal services.
Sec. 17. (a) Disclosure of ownership and management information must be made to the state department:
(1) at the time of the personal services agency's request for licensure;
(2) during each survey of the personal services agency; and
(3) when there is a change in the management or in an ownership interest of more than five percent (5%) of the personal services agency.
(b) The disclosure under subsection (a) must include the following:
(1) The name and address of all persons having at least five percent (5%) ownership or controlling interest in the personal services agency.
(2) The name and address of each person who is an officer, a director, a managing agent, or a managing employee of the personal services agency.
(3) The name and address of the person responsible for the management of the personal services agency.
(4) The name and address of the chief executive officer and the chairperson (or holder of the equivalent position) of the governing body that is responsible for the person identified under subdivision (3).
(c) The determination of an ownership interest and the percentage of an ownership interest under this chapter must be determined under 45 CFR 420.201 and 45 CFR 420.202, as in effect on July 1, 2005.
Sec. 18. A personal services agency shall document evidence of compliance with the requirements of this chapter and document services provided to clients. The documentation or copies of the documentation must be maintained or be electronically accessible at a personal services agency's office in Indiana for not less than seven (7) years.
Sec. 19. (a) The state health commissioner may take one (1) or more of the following actions on any ground listed in subsection
(1) Issue a probationary license.
(2) Conduct a resurvey.
(3) Deny renewal of a license.
(4) Revoke a license.
(5) Impose a civil penalty in an amount not to exceed one thousand dollars ($1,000).
(b) The state health commissioner may take action under subsection (a) on any of the following grounds:
(1) Violation of a provision of this chapter or a rule adopted under this chapter.
(2) Permitting, aiding, or abetting the commission of an illegal act in a personal services agency.
(c) IC 4-21.5 applies to an action under this section.
Sec. 20. (a) The state department shall adopt rules under IC 4-22-2 to govern the procedure for issuing, renewing, denying, or revoking a personal services agency license.
(b) The state department may not add to the substantive or procedural requirements in this chapter.
Sec. 21. A licensee or an applicant for a license aggrieved by an action under this chapter may request a review under IC 4-21.5.
Sec. 22. (a) In response to a request for review of an order referred to in subsection (c), the executive board shall appoint an appeals panel that consists of three (3) members as follows:
(1) One (1) member of the executive board.
(2) One (1) attorney admitted to the practice of law in Indiana.
(3) One (1) individual with qualifications determined by the executive board.
(b) An employee of the state department may not be a member of the panel.
(c) The panel shall conduct proceedings for review of an order issued by an administrative law judge under this chapter. The panel is the ultimate authority under IC 4-21.5.
Sec. 23. A person who knowingly or intentionally:
(1) operates a personal services agency; or
(2) advertises the operation of a personal services agency;
that is not licensed under this chapter commits a Class A misdemeanor.
residence of that individual.
Sec. 10. As used in this chapter, "skilled services" means services provided by a:
(1) registered nurse (as defined in IC 25-23-1-1.1(a));
(2) licensed practical nurse (as defined in IC 25-23-1-1.2); or
(3) health care professional listed in IC 16-27-1-1.
Sec. 11. As used in this chapter, "worker notice" means the statement described in section 17 of this chapter.
Sec. 12. This chapter applies to a placement agency, but does not apply to a:
(1) hospital (as defined in IC 16-18-2-179);
(2) health facility (as defined in IC 16-18-2-167(a)); or
(3) home health agency (as defined in IC 16-18-2-173).
Sec. 13. A placement agency:
(1) must provide a consumer with a consumer notice each time a home care services worker is placed in the home of the consumer; but
(2) is not required to provide a consumer notice when a new or different home care services worker is substituting for the regular home care services worker placed with the consumer.
Sec. 14. A consumer notice must include the following:
(1) The duties, responsibilities and obligations of the placement agency to the:
(A) home care services worker; and
(2) A statement identifying the placement agency as:
(A) an employer;
(B) a joint employer;
(C) a leasing employer; or
(D) not an employer.
(3) A statement that notwithstanding the employment status of the placement agency, the consumer:
(A) may be considered an employer under state and federal employment laws; and
(B) may be responsible for:
(i) payment of local, state, or federal employment taxes;
(ii) payment for Social Security and Medicare contributions;
(iii) ensuring payment of at least the minimum wage;
(iv) overtime payment;
(v) unemployment contributions under IC 22-4-11; or
(vi) worker's compensation insurance as required by
IC 22-3-2-5 and IC 22-3-7-34;
of the home care services worker.
(4) The appropriate telephone number, address, and electronic mail address of the department for inquiries regarding the contents of the notice.
The department shall determine the content and format of the consumer notice.
Sec. 15. The failure of a placement agency to provide a consumer notice to the consumer at the time a home care services worker is placed in the consumer's home does not relieve a consumer from the duties or obligations as an employer. If a placement agency fails to provide a consumer notice and the consumer is liable for payment of wages, taxes, worker's compensation insurance premiums, or unemployment compensation employer contributions, the consumer has a right of indemnification against the placement agency, which includes the actual amounts paid to or on behalf of the home care services worker as well as the consumer's attorney's fees and costs.
Sec. 16. A placement agency that will not be the actual employer of the home care services worker shall provide a worker notice as set forth in section 17 of this chapter to a home care services worker who is placed with a consumer. The worker notice must:
(1) be provided to the home care services worker upon placement in the consumer's home; and
(2) specify the home care services worker's legal relationship with the placement agency and the consumer.
Sec. 17. The worker notice must contain the following:
(1) The duties, responsibilities, and obligations of the placement agency, the consumer, and the home care services worker if the home care services worker is determined to be an independent contractor, including:
(A) a statement of the party responsible for the payment of the home care services worker's wages, taxes, Social Security and Medicare contributions, unemployment contributions, and worker's compensation insurance premiums; and
(B) a statement identifying the party responsible for the home care services worker's hiring, firing, discipline, day to day supervision, assignment of duties, and provision of equipment or materials for use by the home care services worker.
(2) The telephone number, address, and electronic mail
address of the department for inquiries regarding the
contents of the notice.
The department shall determine the content and format of the consumer notice.
Sec. 18. The department may at any time and upon receiving a complaint from an interested person investigate an alleged violation of this chapter by a placement agency.
Sec. 19. The department may impose a civil penalty not to exceed one thousand dollars ($1,000) against a placement agency that fails to provide a worker notice or a consumer notice at the times required under section 13 or 16 of this chapter. The civil penalty may be assessed by the department and, if necessary, shall be recovered by the prosecuting attorney of the county in which the violation has occurred or by the attorney general, as provided in IC 22-1-1-18.