II 

112TH CONGRESS 

1ST SESSION S. 1273 

To amend the Fair Labor Standards Act with regard to certain exemptions 

under that Act for direct care workers and to improve the systems 

for the collection and reporting of data relating to the direct care workforce, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 23, 2011 

Mr. CASEY (for himself, Mr. HARKIN, and Mr. SANDERS) introduced the following bill; which was read twice and referred to the Committee on 

Health, Education, Labor, and Pensions 

A BILL 

To amend the Fair Labor Standards Act with regard to 

certain exemptions under that Act for direct care workers 

and to improve the systems for the collection and reporting of data relating to the direct care workforce, and 

for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Direct Care Job Qual5 ity Improvement Act of 2011’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds that— 


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1 (1) direct care workers are the linchpin of the 

2 Nation’s paid long-term care system, providing es3 sential care and daily living services to many of the 

4 approximately 10,000,000 Americans who are elder5 ly or live with disabilities; 

6 (2) more than two-thirds of older adults will 

7 need some form of long-term care at some point in 

8 their lives and by 2020, 15,000,000 Americans are 

9 expected to need such care; 

10 (3) the ability to meet the Nation’s need for 

11 long-term care services and supports depends largely 

12 on a strong, stable direct care workforce; 

13 (4) the United States faces an impending short14 age of qualified direct care workers to provide per15 sonal and long-term care and support services; 

16 (5) direct care work is demanding, working con17 ditions are often difficult, and turnover is high be18 cause of low pay, lack of access to health insurance 

19 and other benefits, inadequate training, limited op20 portunities for advancement, and lack of respect; 

21 (6) direct care workers are often underpaid: 45 

22 percent of direct care workers live at or below the 

23 poverty level, and nearly half live in households that 

24 receive one or more public benefits; 


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1 (7) the average annual income for direct care 

2 workers is $17,000, and more than 1 in 4 of such 

3 workers lack health insurance; and 

4 (8) State management information systems are 

5 rarely designed to gather and report basic informa6 tion about the direct care workforce that could be 

7 used to assess workforce challenges or monitor 

8 changes in the direct care workforce over time. 

9 SEC. 3. LIMITATION TO EXEMPTION UNDER THE FAIR 

10 LABOR STANDARDS ACT. 

11 (a) HOME CARE WORKERS.—Section 13(a)(15) of 

12 the Fair Labor Standards Act of 1938 (29 U.S.C. 

13 213(a)(15)) is amended to read as follows: 

14 ‘‘(15) any employee employed on a casual basis 

15 in domestic service employment to provide baby16 sitting services or any employee employed on a cas17 ual basis in domestic service employment to provide 

18 companionship services for individuals who (because 

19 of age, infirmity, or disability) are unable to care for 

20 themselves (as such terms are defined and delimited 

21 by regulations of the Secretary);’’. 

22 (b) DEFINITION.—Section 3 of the Fair Labor 

23 Standards Act of 1938 (29 U.S.C. 203) is amended by 

24 adding at the end the following: 


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1 ‘‘(z) The term ‘casual basis in domestic service em2 ployment to provide companionship services’ means em3 ployment which is irregular or intermittent, and which is 

4 not performed by an individual— 

5 ‘‘(1) whose vocation is the provision of compan6 ionship services; or 

7 ‘‘(2) who is employed by an employer or agency 

8 other than the family or household using the services 

9 of such employer or agency. 

10 Employment is not on a casual basis if any family or 

11 household employer employs an individual performing 

12 companionship services for more than five (5) hours per 

13 week or has employed the individual for a time period that 

14 has extended beyond twelve (12) weeks in a calendar 

15 year.’’. 

16 SEC. 4. LONG-TERM SERVICES AND SUPPORTS. 

17 (a) DIRECT CARE WORKFORCE MONITORING PRO18 GRAM.— 

19 (1) IN GENERAL.—The Secretary, in coopera20 tion with the heads of other relevant departments, 

21 shall develop a program to monitor the capacity and 

22 adequacy of the direct care workforce in all relevant, 

23 as determined by the Secretary, Federal health care 

24 programs (as defined in section 1128B(f) of the So25 cial Security Act (42 U.S.C. 1320a–7b(f)). 


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1 (2) MONITORING AND EVALUATION.—Under 

2 the program described in paragraph (1), the Sec3 retary shall monitor and evaluate— 

4 (A) the quality of services provided by di5 rect care workers through Federal health care 

6 programs, including in-home and community7 based settings and in long-term care settings; 

8 and 

9 (B) the adequacy of the direct care work10 force to provide services through such pro11 grams, including— 

12 (i) the stability of such workforce, in13 cluding turnover rates; 

14 (ii) an evaluation of geographic vari15 ation in the adequacy of such workforce; 

16 and 

17 (iii) the adequacy of such workforce to 

18 meet the current and future demand for 

19 long-term services and supports under such 

20 programs. 

21 (3) DATA SHARING.—For purposes of improv22 ing the adequacy of the direct care workforce and 

23 quality of services provided by such workforce 

24 through Federal health care programs, the Secretary 

25 shall— 


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1 (A) facilitate the sharing of data on such 

2 workforce between relevant Federal depart3 ments and between States; 

4 (B) prepare cross-State comparisons of 

5 such data and share such comparisons with 

6 States; and 

7 (C) share with States and Federal depart8 ments best practices for developing an adequate 

9 workforce that provides high-quality direct care 

10 services. 

11 (b) REPORTING ON WORKFORCE ADEQUACY UNDER

12 MEDICAID.— 

13 (1) IN GENERAL.—Section 1902(a) of the So14 cial Security Act (42 U.S.C. 1396a(a)) is amend15 ed— 

16 (A) by striking ‘‘and’’ at the end of para17 graph (82); 

18 (B) by striking the period at the end of 

19 paragraph (83) and inserting ‘‘; and’’; and 

20 (C) by inserting after paragraph (83) the 

21 following: 

22 ‘‘(84) provide that the State shall submit to the 

23 Secretary an annual report that, with respect to 

24 both the current and future needs of individuals who 

25 are enrolled in the State plan for long-term care 


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1 services and supports, details the capacity and ade2 quacy of the direct care workforce (as such term is 

3 defined in subsection (ll)) in the State (including 

4 specifying the number of full-time and part-time di5 rect care workers, the turnover rate for such work6 ers, the number of vacancies for such workers, the 

7 average wage for such workers; the typical benefits 

8 package offered to such workers, and any other data 

9 related to the direct care workforce in the State that 

10 the Secretary requires).’’. 

11 (2) DEFINITIONS AND EXCEPTION FROM WAIV12 ER.—Section 1902 of the Social Security Act is fur13 ther amended by adding at the end the following: 

14 ‘‘(ll) DIRECT CARE WORKERS.— 

15 ‘‘(1) DEFINITIONS.—For purposes of this sub16 section and subsection (a)(84): 

17 ‘‘(A) DIRECT CARE WORKER.—The term 

18 ‘direct care worker’ has the meaning given each 

19 of the following terms in the 2010 Standard 

20 Occupational Classifications of the Department 

21 of Labor: Home Health Aides [31–1011], Psy22 chiatric Aides [31–1013], Nursing Assistants 

23 [31–1014], and Personal Care Aides [39– 

24 9021]. 


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1 ‘‘(B) DIRECT CARE WORKFORCE.—The 

2 term ‘direct care workforce’ means the work3 force made up of direct care workers. 

4 ‘‘(2) EXEMPTION FROM WAIVER.—In the case 

5 of any State that is providing medical assistance to 

6 residents of such State under a waiver granted 

7 under section 1115 or section 1915, the Secretary 

8 shall require the State to submit the report required 

9 under subsection (a)(84) in the same manner as the 

10 State would be required to submit such report if the 

11 State had in effect a plan approved under this 

12 title.’’. 

13 (3) EFFECTIVE DATE.— 

14 (A) IN GENERAL.—Except as provided in 

15 subparagraph (B), the amendments made by 

16 this subsection shall take effect 180 days after 

17 the date of the enactment of this Act. 

18 (B) RULE FOR CHANGES REQUIRING

19 STATE LEGISLATION.—In the case of a State 

20 plan for medical assistance under title XIX of 

21 the Social Security Act that the Secretary de22 termines requires State legislation (other than 

23 legislation appropriating funds) in order for the 

24 plan to meet the additional requirement im25 posed by the amendments made by this subVerDate Mar 15 2010 22:21 Jun 28, 2011 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1273.IS S1273

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1 section, the State plan shall not be regarded as 

2 failing to comply with the requirements of such 

3 title solely on the basis of the failure of the 

4 State to meet this additional requirement before 

5 the first day of the first calendar quarter begin6 ning after the close of the first regular session 

7 of the State legislature that begins after the 

8 date of the enactment of this Act. For purposes 

9 of the previous sentence, in the case of a State 

10 that has a 2-year legislative session, each year 

11 of such session shall be deemed to be a separate 

12 regular session of the State legislature. 

13 SEC. 5. PRIORITIZING ANALYSIS BY NATIONAL HEALTH 

14 CARE WORKFORCE COMMISSION. 

15 (a) ADDITIONAL HIGH PRIORITY AREA.—Subpara16 graph (A) of section 5101(d)(4) of the Patient Protection 

17 and Affordable Care Act (42 U.S.C. 294q(d)(4)) is 

18 amended by adding at the end the following: 

19 ‘‘(vi) With respect to the direct care 

20 workforce— 

21 ‘‘(I) a review of current and pro22 jected workforce supply and demand, 

23 including a review of workforce size, 

24 employment settings, turnover, com25 pensation, and benefits; 


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1 ‘‘(II) an analysis of the adequacy 

2 of existing workforce data, data collec3 tion, and monitoring infrastructure; 

4 and 

5 ‘‘(III) recommendations for new 

6 or additional uniform data elements 

7 across regions and States that are 

8 necessary to track workforce supply, 

9 demand, and shortages.’’. 

10 (b) APPLICATION.—The amendment made by para11 graph (1) applies beginning with the reports required by 

12 section 5101(d)(2) of the Patient Protection and Afford13 able Care Act (42 U.S.C. 294q(d)(2)) for 2011. 

14 SEC. 6. GRANTS AND TECHNICAL ASSISTANCE FOR DATA 

15 COLLECTION AND MONITORING. 

16 (a) IN GENERAL.—The Secretary shall award grants 

17 to States, Indian tribes, and tribal organizations for the 

18 purpose of developing comprehensive data collection and 

19 monitoring systems to assess the adequacy and stability 

20 of the direct care workforce of the State or Indian tribe, 

21 as applicable, to meet current and future demand for long22 term services and supports. 

23 (b) USE OF FUNDS.—A State, Indian tribe, or tribal 

24 organization receiving a grant under subsection (a) shall 

25 use the grant for— 


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1 (1) an assessment of current data sources and 

2 data gaps on the volume, stability, and compensation 

3 of the State or tribe’s direct care workforce across 

4 all settings and programs; 

5 (2) consultation with all agencies of the State, 

6 Indian tribe, or tribal organization that collect data 

7 on the direct care workforce, or data on programs 

8 under which services are provided in connection with 

9 the direct care workforce, in order to streamline 

10 data collection; 

11 (3) the development of an implementation plan 

12 for establishing a comprehensive and ongoing pro13 gram for monitoring the volume, stability, and com14 pensation of the direct care workforce; 

15 (4) the implementation of such program; 

16 (5) the sharing of information on best practices 

17 on data collection and monitoring with other States, 

18 Indian tribes, or tribal organizations; and 

19 (6) the formulation of recommendations for ap20 propriate steps to reduce State, local, or tribal bar21 riers to comprehensive direct care workforce data 

22 collection and monitoring systems, including any 

23 necessary changes in State, local, or tribal policies. 

24 (c) DISTRIBUTION OF GRANTS.— 


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1 (1) NUMBER OF GRANTS.—In carrying out sub2 section (a) the Secretary shall award grants to not 

3 fewer than 5 States each year. 

4 (2) GEOGRAPHIC AND DEMOGRAPHIC DIVER5 SITY.—In selecting grant recipients under subsection 

6 (a), the Secretary shall ensure that grants are 

7 awarded to a diversity of grantees in terms of geog8 raphy and demographics. 

9 (3) PREFERENCE.—In selecting grant recipi10 ents under subsection (a), the Secretary shall give 

11 preference to States, Indian tribes, and tribal orga12 nizations with a relatively high percentage of resi13 dents who require publicly financed long-term serv14 ices. 

15 (d) APPLICATION.—To apply for a grant under this 

16 section, an entity shall submit an application to the Sec17 retary in such form, in such manner, and containing such 

18 information as the Secretary may require. At a minimum, 

19 each such application shall include a description of the ac20 tivities for which funds are sought and a budget for use 

21 of the funds. 

22 (e) TECHNICAL ASSISTANCE.—The Secretary shall 

23 provide technical assistance to States, Indian tribes, and 

24 tribal organizations to develop comprehensive data collec25 tion and monitoring systems to assess the adequacy and 


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1 stability of the State’s direct care workforce under sub2 section (b)(1). 

3 (f) STATE DEFINED.—For purposes of this section: 

4 (1) Subject to paragraph (2), the term ‘‘State’’ 

5 means any of the 50 States, the District of Colum6 bia, Puerto Rico, Guam, the United States Virgin 

7 Islands, American Samoa, and the Commonwealth of 

8 the Northern Mariana Islands. 

9 (2) The term ‘‘State’’ includes, in lieu of any 

10 State listed in paragraph (1), an entity designated 

11 by such State to apply for a grant under this sec12 tion. 

13 (g) AUTHORIZATION OF APPROPRIATIONS.—There 

14 are authorized to be appropriated such sums as may be 

15 necessary to carry out this section for each of fiscal years 

16 2012 through 2016. 

17 SEC. 7. DIRECT CARE WORKER RECRUITMENT, RETENTION, 

18 AND EDUCATION GRANT PROGRAM. 

19 (a) IN GENERAL.—The Secretary shall award grants 

20 on a competitive basis to States and other eligible entities 

21 for the purpose of improving the recruitment, retention, 

22 and education of direct care workers. 

23 (b) USE OF FUNDS.—A State or other eligible entity 

24 receiving a grant under subsection (a) shall use the grant 

25 to— 


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1 (1) establish, expand, or upgrade training pro2 grams and infrastructure for direct care workers; 

3 (2) establish or expand recruitment and reten4 tion programs for direct care workers, including ini5 tiatives which— 

6 (A) improve the wages and benefits offered 

7 to direct care workers; and 

8 (B) create and implement career ladders 

9 for such workers; and 

10 (3) develop or expand programs that— 

11 (A) promote the role of direct care workers 

12 in new cost-effective models of providing serv13 ices to persons with disabilities and to persons 

14 with chronic health conditions and other ex15 tended support needs; and 

16 (B) include approaches such as remote 

17 monitoring, wellness, and prevention. 

18 (c) DIVERSITY.—In selecting grant recipients under 

19 subsection (a), the Secretary shall ensure that grants are 

20 awarded to States or other eligible entities in a manner 

21 that ensures that grant funds are used to enhance the di22 rect care workforce— 

23 (1) in urban and rural communities; and 

24 (2) that serves a diverse patient population, in25 cluding with respect to— 


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1 (A) age; 

2 (B) income level; 

3 (C) race and ethnicity; and 

4 (D) disability status. 

5 (d) GRANT PERIOD.—The Secretary— 

6 (1) may award grants under this section for pe7 riods of not more than 3 years; and 

8 (2) may extend the period of a grant under this 

9 section by not more than 3 years. 

10 (e) APPLICATION.—To apply for a grant under this 

11 section, an entity shall submit an application to the Sec12 retary in such form, in such manner, and containing such 

13 information as the Secretary may require. 

14 (f) BASELINE MEASURES AND BENCHMARKS.—As a 

15 condition on the receipt of a grant under this section, the 

16 Secretary shall require each grantee to establish baseline 

17 measures and benchmarks (meeting such requirements as 

18 the Secretary may determine) in order to properly evaluate 

19 the impact of the work performed by the grantee through 

20 the grant. 

21 (g) SUPPLEMENT, NOT SUPPLANT.—The Secretary 

22 shall ensure that amounts provided to a grantee under this 

23 section are used to supplement and not supplant other 

24 Federal, State, or local public funds expended to improve 


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1 the recruitment, retention, and education of the direct 

2 care workforce. 

3 (h) TERMINATION AUTHORITY.—The Secretary may 

4 terminate a grant agreement under this section for good 

5 cause. Such good cause shall include a determination that 

6 the grantee— 

7 (1) has misappropriated funds provided under 

8 this section; or 

9 (2) has failed to make adequate progress to10 ward accomplishing any benchmark established 

11 under subsection (f). 

12 (i) REPORTS AND AUDITS.—As a condition on the re13 ceipt of a grant under this section, the Secretary shall re14 quire each grantee to agree— 

15 (1) to report to the Secretary on the activities 

16 carried out with the grant, including, at the request 

17 of the Secretary, periodic spending reports; and 

18 (2) to allow the Secretary to conduct periodic 

19 audits pertaining to funding received through the 

20 grant. 

21 (j) ELIGIBLE ENTITY.—For purposes of this section, 

22 the term ‘‘eligible entity’’ means— 

23 (1) a State or political subdivision of a State; 

24 or 


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1 (2) any organization, including a labor-manage2 ment partnership, that is committed to carrying out 

3 the activities set forth in subsection (b), whether in 

4 cooperation with a State, on its own initiative, or in 

5 partnership with any other organization. 

6 SEC. 8. REPORTS BY SECRETARY. 

7 Not later than 3 years after the date of awarding the 

8 first grant under section 6 or section 7, the Secretary of 

9 Health and Human Services shall prepare and submit to 

10 the Congress a report that describes the effectiveness of 

11 grants awarded under such sections in achieving the pur12 poses of such grants, including the effectiveness of the 

13 programs funded by such grants in reducing turnover 

14 rates in the direct care workforce. 

15 SEC. 9. DEFINITIONS. 

16 For purposes of this Act: 

17 (1) DIRECT CARE WORKER.—The term ‘‘direct 

18 care worker’’ has the meaning given each of the fol19 lowing terms in the 2010 Standard Occupational 

20 Classifications of the Department of Labor: Home 

21 Health Aides [31–1011], Psychiatric Aides [31– 

22 1013], Nursing Assistants [31–1014], and Personal 

23 Care Aides [39–9021]. 


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1 (2) DIRECT CARE WORKFORCE.—The term ‘‘di2 rect care workforce’’ means the workforce made up 

3 of direct care workers. 

4 (3) SECRETARY.—The term ‘‘Secretary’’ means 

5 the Secretary of Health and Human Services. 

Æ 


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