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[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 1273 Introduced in Senate (IS)]

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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Direct Care Job Quality Improvement 
Act of 2011''.

SEC. 2. FINDINGS.

    Congress finds that--
            (1) direct care workers are the linchpin of the Nation's 
        paid long-term care system, providing essential care and daily 
        living services to many of the approximately 10,000,000 
        Americans who are elderly or live with disabilities;
            (2) more than two-thirds of older adults will need some 
        form of long-term care at some point in their lives and by 
        2020, 15,000,000 Americans are expected to need such care;
            (3) the ability to meet the Nation's need for long-term 
        care services and supports depends largely on a strong, stable 
        direct care workforce;
            (4) the United States faces an impending shortage of 
        qualified direct care workers to provide personal and long-term 
        care and support services;
            (5) direct care work is demanding, working conditions are 
        often difficult, and turnover is high because of low pay, lack 
        of access to health insurance and other benefits, inadequate 
        training, limited opportunities for advancement, and lack of 
        respect;
            (6) direct care workers are often underpaid: 45 percent of 
        direct care workers live at or below the poverty level, and 
        nearly half live in households that receive one or more public 
        benefits;
            (7) the average annual income for direct care workers is 
        $17,000, and more than 1 in 4 of such workers lack health 
        insurance; and
            (8) State management information systems are rarely 
        designed to gather and report basic information about the 
        direct care workforce that could be used to assess workforce 
        challenges or monitor changes in the direct care workforce over 
        time.

SEC. 3. LIMITATION TO EXEMPTION UNDER THE FAIR LABOR STANDARDS ACT.

    (a) Home Care Workers.--Section 13(a)(15) of the Fair Labor 
Standards Act of 1938 (29 U.S.C. 213(a)(15)) is amended to read as 
follows:
            ``(15) any employee employed on a casual basis in domestic 
        service employment to provide babysitting services or any 
        employee employed on a casual basis in domestic service 
        employment to provide companionship services for individuals 
        who (because of age, infirmity, or disability) are unable to 
        care for themselves (as such terms are defined and delimited by 
        regulations of the Secretary);''.
    (b) Definition.--Section 3 of the Fair Labor Standards Act of 1938 
(29 U.S.C. 203) is amended by adding at the end the following:
    ``(z) The term `casual basis in domestic service employment to 
provide companionship services' means employment which is irregular or 
intermittent, and which is not performed by an individual--
            ``(1) whose vocation is the provision of companionship 
        services; or
            ``(2) who is employed by an employer or agency other than 
        the family or household using the services of such employer or 
        agency.
Employment is not on a casual basis if any family or household employer 
employs an individual performing companionship services for more than 
five (5) hours per week or has employed the individual for a time 
period that has extended beyond twelve (12) weeks in a calendar 
year.''.

SEC. 4. LONG-TERM SERVICES AND SUPPORTS.

    (a) Direct Care Workforce Monitoring Program.--
            (1) In general.--The Secretary, in cooperation with the 
        heads of other relevant departments, shall develop a program to 
        monitor the capacity and adequacy of the direct care workforce 
        in all relevant, as determined by the Secretary, Federal health 
        care programs (as defined in section 1128B(f) of the Social 
        Security Act (42 U.S.C. 1320a-7b(f)).
            (2) Monitoring and evaluation.--Under the program described 
        in paragraph (1), the Secretary shall monitor and evaluate--
                    (A) the quality of services provided by direct care 
                workers through Federal health care programs, including 
                in-home and community-based settings and in long-term 
                care settings; and
                    (B) the adequacy of the direct care workforce to 
                provide services through such programs, including--
                            (i) the stability of such workforce, 
                        including turnover rates;
                            (ii) an evaluation of geographic variation 
                        in the adequacy of such workforce; and
                            (iii) the adequacy of such workforce to 
                        meet the current and future demand for long-
                        term services and supports under such programs.
            (3) Data sharing.--For purposes of improving the adequacy 
        of the direct care workforce and quality of services provided 
        by such workforce through Federal health care programs, the 
        Secretary shall--
                    (A) facilitate the sharing of data on such 
                workforce between relevant Federal departments and 
                between States;
                    (B) prepare cross-State comparisons of such data 
                and share such comparisons with States; and
                    (C) share with States and Federal departments best 
                practices for developing an adequate workforce that 
                provides high-quality direct care services.
    (b) Reporting on Workforce Adequacy Under Medicaid.--
            (1) In general.--Section 1902(a) of the Social Security Act 
        (42 U.S.C. 1396a(a)) is amended--
                    (A) by striking ``and'' at the end of paragraph 
                (82);
                    (B) by striking the period at the end of paragraph 
                (83) and inserting ``; and''; and
                    (C) by inserting after paragraph (83) the 
                following:
            ``(84) provide that the State shall submit to the Secretary 
        an annual report that, with respect to both the current and 
        future needs of individuals who are enrolled in the State plan 
        for long-term care services and supports, details the capacity 
        and adequacy of the direct care workforce (as such term is 
        defined in subsection (ll)) in the State (including specifying 
        the number of full-time and part-time direct care workers, the 
        turnover rate for such workers, the number of vacancies for 
        such workers, the average wage for such workers; the typical 
        benefits package offered to such workers, and any other data 
        related to the direct care workforce in the State that the 
        Secretary requires).''.
            (2) Definitions and exception from waiver.--Section 1902 of 
        the Social Security Act is further amended by adding at the end 
        the following:
    ``(ll) Direct Care Workers.--
            ``(1) Definitions.--For purposes of this subsection and 
        subsection (a)(84):
                    ``(A) Direct care worker.--The term `direct care 
                worker' has the meaning given each of the following 
                terms in the 2010 Standard Occupational Classifications 
                of the Department of Labor: Home Health Aides [31-
                1011], Psychiatric Aides [31-1013], Nursing Assistants 
                [31-1014], and Personal Care Aides [39-9021].
                    ``(B) Direct care workforce.--The term `direct care 
                workforce' means the workforce made up of direct care 
                workers.
            ``(2) Exemption from waiver.--In the case of any State that 
        is providing medical assistance to residents of such State 
        under a waiver granted under section 1115 or section 1915, the 
        Secretary shall require the State to submit the report required 
        under subsection (a)(84) in the same manner as the State would 
        be required to submit such report if the State had in effect a 
        plan approved under this title.''.
            (3) Effective date.--
                    (A) In general.--Except as provided in subparagraph 
                (B), the amendments made by this subsection shall take 
                effect 180 days after the date of the enactment of this 
                Act.
                    (B) Rule for changes requiring state legislation.--
                In the case of a State plan for medical assistance 
                under title XIX of the Social Security Act that the 
                Secretary determines requires State legislation (other 
                than legislation appropriating funds) in order for the 
                plan to meet the additional requirement imposed by the 
                amendments made by this subsection, the State plan 
                shall not be regarded as failing to comply with the 
                requirements of such title solely on the basis of the 
                failure of the State to meet this additional 
                requirement before the first day of the first calendar 
                quarter beginning after the close of the first regular 
                session of the State legislature that begins after the 
                date of the enactment of this Act. For purposes of the 
                previous sentence, in the case of a State that has a 2-
                year legislative session, each year of such session 
                shall be deemed to be a separate regular session of the 
                State legislature.

SEC. 5. PRIORITIZING ANALYSIS BY NATIONAL HEALTH CARE WORKFORCE 
              COMMISSION.

    (a) Additional High Priority Area.--Subparagraph (A) of section 
5101(d)(4) of the Patient Protection and Affordable Care Act (42 U.S.C. 
294q(d)(4)) is amended by adding at the end the following:
                            ``(vi) With respect to the direct care 
                        workforce--
                                    ``(I) a review of current and 
                                projected workforce supply and demand, 
                                including a review of workforce size, 
                                employment settings, turnover, 
                                compensation, and benefits;
                                    ``(II) an analysis of the adequacy 
                                of existing workforce data, data 
                                collection, and monitoring 
                                infrastructure; and
                                    ``(III) recommendations for new or 
                                additional uniform data elements across 
                                regions and States that are necessary 
                                to track workforce supply, demand, and 
                                shortages.''.
    (b) Application.--The amendment made by paragraph (1) applies 
beginning with the reports required by section 5101(d)(2) of the 
Patient Protection and Affordable Care Act (42 U.S.C. 294q(d)(2)) for 
2011.

SEC. 6. GRANTS AND TECHNICAL ASSISTANCE FOR DATA COLLECTION AND 
              MONITORING.

    (a) In General.--The Secretary shall award grants to States, Indian 
tribes, and tribal organizations for the purpose of developing 
comprehensive data collection and monitoring systems to assess the 
adequacy and stability of the direct care workforce of the State or 
Indian tribe, as applicable, to meet current and future demand for 
long-term services and supports.
    (b) Use of Funds.--A State, Indian tribe, or tribal organization 
receiving a grant under subsection (a) shall use the grant for--
            (1) an assessment of current data sources and data gaps on 
        the volume, stability, and compensation of the State or tribe's 
        direct care workforce across all settings and programs;
            (2) consultation with all agencies of the State, Indian 
        tribe, or tribal organization that collect data on the direct 
        care workforce, or data on programs under which services are 
        provided in connection with the direct care workforce, in order 
        to streamline data collection;
            (3) the development of an implementation plan for 
        establishing a comprehensive and ongoing program for monitoring 
        the volume, stability, and compensation of the direct care 
        workforce;
            (4) the implementation of such program;
            (5) the sharing of information on best practices on data 
        collection and monitoring with other States, Indian tribes, or 
        tribal organizations; and
            (6) the formulation of recommendations for appropriate 
        steps to reduce State, local, or tribal barriers to 
        comprehensive direct care workforce data collection and 
        monitoring systems, including any necessary changes in State, 
        local, or tribal policies.
    (c) Distribution of Grants.--
            (1) Number of grants.--In carrying out subsection (a) the 
        Secretary shall award grants to not fewer than 5 States each 
        year.
            (2) Geographic and demographic diversity.--In selecting 
        grant recipients under subsection (a), the Secretary shall 
        ensure that grants are awarded to a diversity of grantees in 
        terms of geography and demographics.
            (3) Preference.--In selecting grant recipients under 
        subsection (a), the Secretary shall give preference to States, 
        Indian tribes, and tribal organizations with a relatively high 
        percentage of residents who require publicly financed long-term 
        services.
    (d) Application.--To apply for a grant under this section, an 
entity shall submit an application to the Secretary in such form, in 
such manner, and containing such information as the Secretary may 
require. At a minimum, each such application shall include a 
description of the activities for which funds are sought and a budget 
for use of the funds.
    (e) Technical Assistance.--The Secretary shall provide technical 
assistance to States, Indian tribes, and tribal organizations to 
develop comprehensive data collection and monitoring systems to assess 
the adequacy and stability of the State's direct care workforce under 
subsection (b)(1).
    (f) State Defined.--For purposes of this section:
            (1) Subject to paragraph (2), the term ``State'' means any 
        of the 50 States, the District of Columbia, Puerto Rico, Guam, 
        the United States Virgin Islands, American Samoa, and the 
        Commonwealth of the Northern Mariana Islands.
            (2) The term ``State'' includes, in lieu of any State 
        listed in paragraph (1), an entity designated by such State to 
        apply for a grant under this section.
    (g) Authorization of Appropriations.--There are authorized to be 
appropriated such sums as may be necessary to carry out this section 
for each of fiscal years 2012 through 2016.

SEC. 7. DIRECT CARE WORKER RECRUITMENT, RETENTION, AND EDUCATION GRANT 
              PROGRAM.

    (a) In General.--The Secretary shall award grants on a competitive 
basis to States and other eligible entities for the purpose of 
improving the recruitment, retention, and education of direct care 
workers.
    (b) Use of Funds.--A State or other eligible entity receiving a 
grant under subsection (a) shall use the grant to--
            (1) establish, expand, or upgrade training programs and 
        infrastructure for direct care workers;
            (2) establish or expand recruitment and retention programs 
        for direct care workers, including initiatives which--
                    (A) improve the wages and benefits offered to 
                direct care workers; and
                    (B) create and implement career ladders for such 
                workers; and
            (3) develop or expand programs that--
                    (A) promote the role of direct care workers in new 
                cost-effective models of providing services to persons 
                with disabilities and to persons with chronic health 
                conditions and other extended support needs; and
                    (B) include approaches such as remote monitoring, 
                wellness, and prevention.
    (c) Diversity.--In selecting grant recipients under subsection (a), 
the Secretary shall ensure that grants are awarded to States or other 
eligible entities in a manner that ensures that grant funds are used to 
enhance the direct care workforce--
            (1) in urban and rural communities; and
            (2) that serves a diverse patient population, including 
        with respect to--
                    (A) age;
                    (B) income level;
                    (C) race and ethnicity; and
                    (D) disability status.
    (d) Grant Period.--The Secretary--
            (1) may award grants under this section for periods of not 
        more than 3 years; and
            (2) may extend the period of a grant under this section by 
        not more than 3 years.
    (e) Application.--To apply for a grant under this section, an 
entity shall submit an application to the Secretary in such form, in 
such manner, and containing such information as the Secretary may 
require.
    (f) Baseline Measures and Benchmarks.--As a condition on the 
receipt of a grant under this section, the Secretary shall require each 
grantee to establish baseline measures and benchmarks (meeting such 
requirements as the Secretary may determine) in order to properly 
evaluate the impact of the work performed by the grantee through the 
grant.
    (g) Supplement, Not Supplant.--The Secretary shall ensure that 
amounts provided to a grantee under this section are used to supplement 
and not supplant other Federal, State, or local public funds expended 
to improve the recruitment, retention, and education of the direct care 
workforce.
    (h) Termination Authority.--The Secretary may terminate a grant 
agreement under this section for good cause. Such good cause shall 
include a determination that the grantee--
            (1) has misappropriated funds provided under this section; 
        or
            (2) has failed to make adequate progress toward 
        accomplishing any benchmark established under subsection (f).
    (i) Reports and Audits.--As a condition on the receipt of a grant 
under this section, the Secretary shall require each grantee to agree--
            (1) to report to the Secretary on the activities carried 
        out with the grant, including, at the request of the Secretary, 
        periodic spending reports; and
            (2) to allow the Secretary to conduct periodic audits 
        pertaining to funding received through the grant.
    (j) Eligible Entity.--For purposes of this section, the term 
``eligible entity'' means--
            (1) a State or political subdivision of a State; or
            (2) any organization, including a labor-management 
        partnership, that is committed to carrying out the activities 
        set forth in subsection (b), whether in cooperation with a 
        State, on its own initiative, or in partnership with any other 
        organization.

SEC. 8. REPORTS BY SECRETARY.

    Not later than 3 years after the date of awarding the first grant 
under section 6 or section 7, the Secretary of Health and Human 
Services shall prepare and submit to the Congress a report that 
describes the effectiveness of grants awarded under such sections in 
achieving the purposes of such grants, including the effectiveness of 
the programs funded by such grants in reducing turnover rates in the 
direct care workforce.

SEC. 9. DEFINITIONS.

    For purposes of this Act:
            (1) Direct care worker.--The term ``direct care worker'' 
        has the meaning given each of the following terms in the 2010 
        Standard Occupational Classifications of the Department of 
        Labor: Home Health Aides [31-1011], Psychiatric Aides [31-
        1013], Nursing Assistants [31-1014], and Personal Care Aides 
        [39-9021].
            (2) Direct care workforce.--The term ``direct care 
        workforce'' means the workforce made up of direct care workers.
            (3) Secretary.--The term ``Secretary'' means the Secretary 
        of Health and Human Services.
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