Citations Affected: IC 5-14-3-2; IC 12-9-9-5; IC 16-18-2; IC 16-27.
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 by or may only be 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. Makes operating or advertising an unlicensed personal
services agency a Class A misdemeanor. 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.
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.
purposes of IC 16-27-4, has the meaning set forth in IC 16-27-4-3.
families of the employees or members if the health or home care
services are not the predominant purpose of the employer or a
membership organization's business.
(4) Nonmedical nursing care given in accordance with the tenets and practice of a recognized church or religious denomination to a patient who depends upon healing by prayer and spiritual means alone in accordance with the tenets and practices of the patient's church or religious denomination.
(5) Services that are allowed to be performed by an attendant under IC 16-27-1-10.
(6) Authorized services provided by a personal services attendant under IC 12-10-17.
in a patient's temporary or permanent residence, for a copy of the
employee's limited criminal history from the Indiana central repository
for criminal history information under IC 10-13-3.
(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 three (3) business days without applying for that person's limited criminal history as required by subsection (a).
Sec. 4. (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 to not more than two (2) patients concurrently at the patient's residence.
(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. 5. As used in this chapter, "representative" means a person's:
(1) legal guardian or other court appointed representative who is responsible for making health care decisions for the person;
(2) health care representative under IC 16-36-1; or
(3) attorney in fact authorized to exercise the powers with respect to health care that are set forth in IC 30-5-5-16.
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 one hundred twenty (120) minutes driving time 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 state department.
(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 patients for review, which may include open and closed patient files.
(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 and its onsite review is limited to determining the personal services agency, compliance with the requirements of this chapter. If the state department approves an application, the temporary license issued to the applicant under subsection (e) becomes an ordinary license subject to subsection (i).
(i) A license expires three (3) years from the date of issuance of the temporary license under subsection (e). 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) 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 patient's medical or health condition has become unstable or unpredictable, the personal services agency shall notify the patient, the patient's representative, a family member, other relative of the patient, or other person identified by the patient 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 patient's record with the personal services agency.
(b) The personal services agency may continue to provide personal services for a patient with an unstable or unpredictable medical or health condition but may not manage or represent itself as able to manage the patient'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 patient
before providing personal services for the patient. 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 patient are subject to the patient'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 patient satisfaction review with the patient 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 patient may be in person or by telephone. This patient 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 patient or the patient's representative with the personal services agency's written statement of patient rights before or within seven (7) days of providing services to the patient. The statement of patient rights must include the following information:
(1) The patient has the right to have the patient's property treated with respect.
(2) The patient has the right to temporarily suspend, permanently terminate, temporarily add, or permanently add services in the service plan.
(3) The patient 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 patient 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 patient if a condition becomes unstable or unpredictable.
(6) The charges for services provided by the personal services
(7) The personal services agency's policy for notifying the patient of any increase in the cost of services.
(8) The hours the personal services agency's office is open for business.
(9) That on request the personal services agency will make available to the patient a written list of the names and addresses of all persons having at least a five percent (5%) ownership or controlling interest in the personal services agency.
(10) The procedures for contacting the personal services agency's manager, or the manager's designee, while the personal services agency's office is open or closed.
(11) The procedure and telephone number to call to file a complaint with the personal services agency.
(12) The procedure and telephone number to call to file a complaint with the state department along with the business hours of the state department.
Sec. 13. A personal services agency shall investigate a complaint made by a patient, the patient's family, or the patient's representative regarding:
(1) service that is or fails to be furnished; and
(2) the lack of respect for the patient's property by anyone furnishing services on behalf of the personal services agency.
The personal services agency shall document the complaint and the resolution of the complaint.
Sec. 14. The personal services agency's manager or the manager's designee shall be available to respond to patient telephone calls twenty-four (24) hours a day.
Sec. 15. An employee or agent of a personal services agency who will have direct patient contact must complete a tuberculosis test in the same manner as required by the state department for licenced home health agency employees and agents.
Sec. 16. (a) The competency of an employee or agent of a personal services agency who will perform attendant care services at the patient's residence must be evaluated by the agency or the agency's designee for each attendant care services task that the personal services agency chooses to have that employee or agent perform. The agency has the sole discretion to determine if an employee or agent is competent to perform an attendant care services task.
(b) After an evaluation an employee or agent shall be trained in
the attendant care services tasks the personal services agency
believes require improvement. The employee or agent shall be
reevaluated following any training. The evaluation of the employee
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 performing that task for
a patient 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. The documentation must be maintained 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.