CHAPTER 193

FORMERLY

HOUSE BILL NO. 30

AS AMENDED BY HOUSE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 16, 24, AND 29 OF THE DELAWARE CODE RELATING TO COMMUNITY-BASED ATTENDANT SERVICES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :

Section 1. Amend Part IX, Title 16 of the Delaware Code by adding thereto a new Chapter 94 which shall read as follows:

“Chapter 94. COMMUNITY-BASED ATTENDANT SERVICES

§9401. Short Title. This Act may be cited as the Community-Based Attendant Services Act.

§9402. Purpose.

The purposes of this chapter are as follows:

(a) To minimize the likelihood of institutionalization and maximize the potential for independent living of individuals with disabilities.

(b) To establish a statewide consumer-directed attendant support program which promotes self-sufficiency, self-reliance and a sense of personal responsibility among participants.

(c) To enhance the continuum of community-based services offered by the State; and

(d) To reduce barriers to participation in vocational, educational, social, and other common community-based activities.

§9403. Definitions.

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning.

(1) ‘Department’ means the Department of Health and Social Services.

(2) ‘Program’ means the Community-Based Attendant Services Program.

(3) ‘Eligible participant’ means a resident of the state with a severe, chronic mental or physical disability which precludes or significantly impairs the individual’s independent performance of essential activities of daily living, self-care, or mobility within home or community environments. For purposes of this paragraph, a ‘chronic disability’ is a medically determinable impairment which can be expected to last for a continuous period of not less than twelve months.

(4) ‘Attendant services’ means those basic and ancillary services which compensate for an eligible participant’s limitations in performing essential activities of daily living, self-care, or mobility within home or community environments.

(5) ‘Basic services’ means the following support services:

(a) assistance with transferring to and from a bed, wheelchair, vehicle, or other environmental setting;

(b) help with use of medical and non-medical equipment, devices, or assistive technology;

(c) assistance with routine bodily functions, including, but not limited to:

(i) health maintenance activities;

(ii) bathing, and personal hygiene;

(iii) bowel or urinary evacuation;

(iv) dressing and grooming;

(v) food consumption, preparation and cleanup; and

(d) Such other core support services as may be adopted by the Department through regulation.

(6) ‘Ancillary services’ means the following supplemental support services, which may be provided only if an eligible participant qualifies for one or more basic support services:

a. homemaker-type services, including cleaning, laundry, shopping, and seasonal chores;

b. companion-type services, including transportation, escort, and facilitation of written, oral, and electronic communication;

c. assistance with cognitive tasks, including bill payment and money management, planning activities, and decision-making; and

d. such other supplemental support services as may be adopted by the Department through regulation.

§9404. Powers and duties.

In furtherance of the purposes of this chapter, and within the limits of appropriations and other available funds, the Department shall have the following powers and duties.

(a) Develop and implement a statewide community-based attendant services program either directly or through contractual arrangements with other public or private agencies;

(b) Establish and periodically revise an income-based sliding fee schedule for attendant services for eligible participants;

(c) Consistent with definitions in §9403 of the chapter, clarify program eligibility and the scope of authorized services;

(d) Establish program operation standards which ensure prompt determination of applications, periodic review of eligibility, participant satisfaction assessment, and an impartial grievance system;

(e) Ensure that the primary program service delivery model is participant-directed and includes the following features:

(1) eligible participant option to hire, supervise, pay, and dismiss attendants;

(2) availability of eligible participant training to facilitate adoption of employer role; and

(3) authorization of eligible participant to act through guardian or appointed representative.

(f) Ensure that attendant services are provided in conformity with a written individualized service plan, whose format shall be specifically prescribed by regulation, developed and approved as follows:

(1) The plan shall be jointly prepared by the Department and eligible participant, and, in the participant’s discretion, other persons with special expertise or interest, including family members;

(2) The plan shall be based on an individualized needs assessment;

(3) The contents of the plan shall be fully explained to the eligible participant and implemented only after written endorsement by both the Department and eligible participant.

(4) In the event that endorsement is withheld, the plan shall be partially implemented in contexts in which consensus is achieved.

(5) The plan shall describe the nature, frequency, and financial aspects of itemized attendant services; and

(6) The plan shall include services onset, review, and ending dates.

(g) Prepare an annual report which describes the number of program participants; profiles of participants, including types of disabilities, geographical location, and services provided; financial expenditures; participant satisfaction data; and such other information recommended by the Advisory Council.

(h) Investigate and assess the availability of federal and other funding to support implementation of this chapter.

§9405. Attendant Screening.

(a) The Department shall safeguard participants through establishment of an attendant screening system which includes, but is not limited to, the following features:

(1) standardized application comprehensively addressing each prospective attendant's background;

(2) criminal background check at State expense; and

(3) check of abuse, neglect, mistreatment, and financial exploitation registries, including those authorized by Chapters 9 and 11 of Title 16 and Chapter 85 of Title 11.

(b) To effectively implement the attendant screening system, the Department is vested with the following powers, duties and authority:

(1) The Department shall require any person seeking to provide attendant services under this chapter to share any and all information, including fingerprints, necessary to obtain a report of the person's Delaware criminal history record from the State Bureau of Identification and a report of the person's entire federal criminal history record pursuant to the Federal Bureau of Investigation appropriation of Title II of Public Law 92-544 [28 U.S.C. §534]. The State Bureau of Identification shall be the intermediary for acquisition of the federal criminal history record.

(2) Notwithstanding any requirements of Chapter 85 of Title 11 to the contrary, the State Bureau of Identification shall furnish information pertaining to the entire Delaware and federal criminal history record of any person seeking to provide attendant services under this chapter. Such information shall be provided to the Department of Health and Social Services pursuant to the procedures established by the Superintendent of the State Police.

(3) Notwithstanding any contrary provision of Title 16, Chapter 9, the Department is authorized to obtain child abuse and neglect registry information from the Department of Services for Children, Youth & Their Families pertaining to any person seeking to provide attendant services under this chapter.

(4) The Department shall adopt criteria through its regulations which shall disqualify a person from providing attendant services under this chapter. To the extent not otherwise prohibited by law, the Department shall provide a program participant with a summary report of a prospective attendant's screening results prior to employment.

(5) The Department may adopt criteria through regulations authorizing exemption from this section for persons for whom a qualifying screening was conducted within the previous five years.

(c) Any person who either fails to make a full and complete disclosure on an application or a full and complete disclosure of any information required to obtain a registry or criminal background check as required in this section shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

§9406. Advisory Council.

The State Council for Persons with Disabilities, established by §8813, Title 29 of the Delaware Code, shall serve as the advisory council to the Department in implementing this Chapter. In furtherance of this role, the Council shall fulfill the following functions:

(a) Review and comment on regulations, policies, and guidelines issued or proposed by the Department;

(b) Review and comment on the Department’s annual report developed in conformity with §9404(g) of this chapter;

(c) Obtain and review information from the Department and other agencies pertaining to program operation, participant satisfaction, and unmet needs;

(d) Study, research, and advise the Department on national studies, projects, trends, and funding initiatives pertaining to attendant care; and

(e) Otherwise assess and assist the Department in implementation of this chapter.

§9407. Regulations.

(a) The Department shall prescribe such regulations as may be necessary to fully implement this chapter.

(b) Regulations prepared by the Department under this Chapter shall be subject to review and comment by the Advisory Council and shall otherwise be promulgated in conformity with the Administrative Procedures Act, Chapter 101 of Title 29.”

Section 2. Amend §8813(b), Title 29 of the Delaware Code by adding thereto a new paragraph as follows:

“(9) Serve as the advisory council for the Community-Based Attendant Services program established by Title 16 Del. C. Ch.94.”

Section 3. Amend §1921(a), Title 24 of the Delaware Code by substituting a semicolon for the period at the end of Paragraph (16) and adding a new paragraph to read as follows:

“(17) Attendants providing basic and ancillary services defined and regulated by the Department of Health and Social Services in conformity, with the Community-Based Attendant Services Act, Chapter 94 of Title 16.”

Section 4. Amend §122(3)(o) 1, Title 16 of the Delaware Code by inserting the phrase and punctuation “, nor does it include an agency which solely provides attendant services as defined in Chapter 94 of this title” after the word “denomination”.

Section 5. If any provision of this Act or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared severable.

Section 6. This Act shall become effective January 15, 2002 with the exception of portions of this Act which authorize the Department to promulgate rules and regulations, which authorization shall become effective immediately upon enactment.

Approved July 19, 2001