I 

111TH CONGRESS 

2D SESSION H. R. 5902 

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 HOUSE OF REPRESENTATIVES 

JULY 28, 2010 

Ms. LINDA T. SA ́NCHEZ of California (for herself, Ms. BALDWIN, Mr. BRALEY

of Iowa, Mr. DELAHUNT, Ms. DELAURO, Ms. EDWARDS of Maryland, 

Mr. ELLISON, Mr. FARR, Mr. FATTAH, Mr. FILNER, Mr. GRIJALVA, Mr. 

HARE, Mr. HASTINGS of Florida, Mr. HONDA, Ms. KAPTUR, Mr. 

LANGEVIN, Ms. LEE of California, Mr. LEWIS of Georgia, Mr. 

LOEBSACK, Mr. MCDERMOTT, Mr. MICHAUD, Ms. PINGREE of Maine, 

Ms. ROYBAL-ALLARD, Ms. SCHAKOWSKY, Mr. SIRES, Ms. SUTTON, Mr. 

THOMPSON of California, Ms. WOOLSEY, and Mr. WU) introduced the following bill; which was referred to the Committee on Education and 

Labor, and in addition to the Committee on Energy and Commerce, for 

a period to be subsequently determined by the Speaker, in each case for 

consideration of such provisions as fall within the jurisdiction of the committee concerned 

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, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Direct Care Workforce 

3 Empowerment Act’’. 

4 SEC. 2. FINDINGS. 

5 Congress finds that— 

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

7 Nation’s paid long-term care system, providing es8 sential care and daily living services to more than 13 

9 million elderly and disabled Americans; 

10 (2) the ability to meet the Nation’s long-term 

11 care challenges depends largely on a strong, stable 

12 direct care workforce; 

(3) over 2 13 ⁄3 of older adults will need some form 

14 of long-term care at some point in their lives; 

15 (4) the United States is experiencing a severe 

16 shortage of qualified direct care workers to provide 

17 personal and long-term care and support services; 

18 (5) according to the Bureau of Labor Statistics, 

19 direct care workforce occupations consist of nursing 

20 aides, home health aides, and personal and home 

21 care aides; 

22 (6) direct care work is demanding, working con23 ditions are often difficult, and turnover is high be24 cause of low pay, lack of access to health insurance 

25 and other benefits, strenuous conditions, limited opVerDate Mar 15 2010 16:33 Jul 29, 2010 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H5902.IH H5902

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1 portunities for advancement, inadequate training, 

2 and lack of respect; 

3 (7) direct care workers are often underpaid, 

4 with nearly 1 in 3 living near or below the poverty 

5 level, and more than 1 in 4 lacking health insurance; 

6 (8) the average annual income for direct care 

7 workers is $17,000, and 40 percent of direct care 

8 workers live in households that receive one or more 

9 public benefits such as food stamps or Medicaid; and 

10 (9) States have management information sys11 tems that are rarely set up to gather and report 

12 basic information about the direct care workforce 

13 that could be used assess changes and challenges to 

14 the workforce. 

15 SEC. 3. LIMITATION TO EXEMPTION UNDER THE FAIR 

16 LABOR STANDARDS ACT. 

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

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

19 213(a)(15)) is amended to read as follows: 

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

21 in domestic service employment to provide baby22 sitting services or any employee employed on a cas23 ual basis in domestic service employment to provide 

24 companionship services for individuals who (because 

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


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1 themselves (as such terms are defined and delimited 

2 by regulations of the Secretary);’’. 

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

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

5 adding at the end the following: 

6 ‘‘(z) The term ‘casual basis’ means employment 

7 which is irregular or intermittent, and which is not per8 formed by an individual whose vocation is the provision 

9 of babysitting or companionship services or an individual 

10 employed by an employer or agency other than the family 

11 or household using their services. Employment is not on 

12 a casual basis, whether performed for one or more family 

13 or household employers, if such employment for all such 

14 employers exceeds 20 hours per week in the aggregate.’’. 

15 SEC. 4. DIRECT CARE WORKFORCE DATA COLLECTION AND 

16 MONITORING. 

17 (a) IN GENERAL.—The Secretary of Health and 

18 Human Services shall establish a direct care workforce 

19 monitoring program to— 

20 (1) facilitate the reporting of data by States 

21 about the direct care workforce and the sharing of 

22 such data among States, including tracking of best 

23 practices and cross-State comparisons; 

24 (2) enable the Centers for Medicare & Medicaid 

25 Services to better collect data across all long-term 


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1 care settings for services financed through title 

2 XVIII or XIX of the Social Security Act (Medicare 

3 or Medicaid, respectively); 

4 (3) enable the Centers for Medicare & Medicaid 

5 Services (and any other agency designated by the 

6 Secretary) to provide guidance to States concerning 

7 the adequacy and quality of the States’ reporting of 

8 data, waiver and renewal applications, and any pro9 visions of or modifications to State plans regarding 

10 the direct care workforce, including by revising any 

11 data reporting forms and systems to ensure uniform 

12 and consistent State reporting; and 

13 (4) include, at a minimum, the collection of di14 rect care workforce data (which may be based on 

15 payroll data, taking into account services provided 

16 by agency or contract staff) on— 

17 (A) schedule (both location and hours); 

18 (B) turnover; 

19 (C) tenure; 

20 (D) wages; 

21 (E) benefits; and 

22 (F) vacancies. 

23 (b) ADVISORY COUNCIL ON DIRECT CARE WORK24 FORCE.— 


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1 (1) ESTABLISHMENT.—The Secretary, in con2 sultation with the Secretary of the Labor, shall es3 tablish a National Advisory Council on the Direct 

4 Care Workforce (referred to in this section as the 

5 ‘‘Council’’) that shall be composed members to be 

6 appointed by the Secretary. 

7 (2) DUTIES.—The Council shall consult with, 

8 advise, and make recommendations to the Secretary 

9 with respect to the Secretary’s administration of the 

10 program established under subsection (a). 

11 (3) ADMINISTRATIVE PROVISIONS.—Members of 

12 the Council shall serve a term no longer than 5 

13 years and be representative of diverse public and pri14 vate sector expertise and interests, including rep15 resentation from individuals with unique expertise 

16 on topics related to direct care services or the direct 

17 care workforce (including at least 1 individual with 

18 experience in providing direct care services in an in19 stitutional or facility-based setting and 1 individual 

20 with experience in providing such services in a home 

21 or community-based setting), and from officials from 

22 the Department of Health and Human Services, the 

23 Department of Labor, and others as the Secretary 

24 determines appropriate. 


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1 (c) REPORTS.—Not later than 3 years after the date 

2 of the enactment of this section, and periodically there3 after, as determined by the Secretary, the Secretary shall 

4 prepare and submit to the appropriate committees of Con5 gress a report that— 

6 (1) analyzes the existing direct care workforce 

7 data infrastructure; 

8 (2) analyzes the current and projected needs for 

9 the direct care workforce, including information on 

10 turnover and retention of workers; 

11 (3) makes recommendations for new or addi12 tional uniform data elements across regions and 

13 States that is necessary to track supply, demand, 

14 and workforce shortages related to the population 

15 served by direct care workers; 

16 (4) makes recommendations for improvement in 

17 the competency, education, and training standards 

18 for direct care workers; and 

19 (5) includes any other topics requested by the 

20 Secretary. 

21 SEC. 5. DIRECT CARE WORKER RECRUITMENT, RETENTION, 

22 AND EDUCATION GRANT PROGRAM. 

23 (a) GRANTS AUTHORIZED.— 

24 (1) IN GENERAL.—The Secretary of Health and 

25 Human Services shall award grants to States and 


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1 other eligible entities to improve the recruitment, re2 tention, and education of the direct care workforce. 

3 (2) TYPES OF GRANTS.—Of the amounts au4 thorized under subsection (k), the Secretary shall 

5 award grants as follows: 

6 (A) $100,000 for the period of fiscal years 

7 2011 through 2013 to each State to assist the 

8 State in developing its State direct care work9 force plan. 

10 (B) The remainder of such amounts to 

11 States and other eligible entities on a competi12 tive basis for the purposes described in sub13 section (b). 

14 (b) USE OF FUNDS.—An eligible entity receiving a 

15 grant under this subsection (a)(2)(B) may use the grant 

16 to— 

17 (1) expand and upgrade training programs and 

18 infrastructure for direct care workers; 

19 (2) implement or improve systems for the moni20 toring of and collection of data relating to the direct 

21 care workforce; 

22 (3) establish or expand recruitment and reten23 tion programs for direct care workers, including ini24 tiatives which improve the wages and benefits of25 fered such workers; and 


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1 (4) develop or expand programs that promote 

2 the role of direct care workers in new cost-effective 

3 models of providing care to people with chronic 

4 health conditions, disabilities, and other extended 

5 support needs, and include approaches such as re6 mote monitoring, wellness, and prevention. 

7 (c) GRANT PERIOD.—The Secretary may award 

8 grants under this section for periods of not more than 3 

9 years. The Secretary may extend the period of a grant 

10 under this section. Each such extension shall be for a pe11 riod of not more than 3 years. 

12 (d) APPLICATION.— 

13 (1) IN GENERAL.—To apply for a grant under 

14 this section, an eligible entity shall submit an appli15 cation to the Secretary in such form, in such man16 ner, and containing such information as the Sec17 retary may require. 

18 (2) CONTENTS.—At a minimum, the Secretary 

19 shall require each such application to outline how 

20 the eligible entity will establish baseline measures 

21 and benchmarks that meet the Secretary’s require22 ments to evaluate program outcomes. 

23 (e) UNIFORM BASELINE MEASURES.—The Secretary 

24 shall require each grantee to establish uniform baseline 


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1 measures in order to properly evaluate the impact of the 

2 work performed by the grantee under this section. 

3 (f) SUPPLEMENT, NOT SUPPLANT.—Amounts pro4 vided to an eligible entity under this section shall be used 

5 to supplement and not supplant other Federal, State, and 

6 local public funds expended to improve the recruitment, 

7 retention, and education of the direct care workforce. 

8 (g) TERMINATION AUTHORITY.—The Secretary may 

9 terminate selection of a grantee under this section for 

10 good cause. Such good cause shall include a determination 

11 that the grantee— 

12 (1) has misappropriated funds provided under 

13 this section; or 

14 (2) has failed to make adequate progress to15 ward accomplishing any goal set by the Secretary or 

16 included in the grantee’s application. 

17 (h) DEFINITIONS.—In this section— 

18 (1) the term ‘‘eligible entity’’ means a State or 

19 political subdivision of a State or any organization 

20 that is committed to accomplishing tasks set forth in 

21 subsection (b), whether in cooperation with a State, 

22 on its own initiative, or in partnership with any 

23 other organization; and 

24 (2) the term ‘‘direct care worker’’ means a 

25 worker (including a nursing aide, home health aide, 


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1 or personal and home care aide) who provides care 

2 and personal assistance to people who are elderly, 

3 infirm, or living with a disability. 

4 (i) REPORTS AND AUDITS.—Each eligible entity re5 ceiving a grant under this section shall submit to the Sec6 retary of Health and Human Services a report of the ac7 tivities carried out with grant funds. The Secretary may 

8 conduct periodic audits and request periodic spending re9 ports of States receiving grants under this section. 

10 (j) REPORT.—Not later than 3 years after the date 

11 of making initial grants under this section, the Secretary 

12 shall prepare and submit to Congress a report that de13 scribes the effectiveness of the grants awarded under this 

14 section in achieving specific State goals, including the ef15 fectiveness of the programs funded by grants in reducing 

16 turnover rates in the direct care workforce. 

17 (k) AUTHORIZATION OF APPROPRIATIONS.—There 

18 are authorized to be appropriated to the Secretary of 

19 Health and Human Services $25,000,000 for each of fis20 cal years 2011 through 2016, to carry out this section. 

Æ 


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