I 

111TH CONGRESS 

1ST SESSION H. R. 868 

To amend title XIX of the Social Security Act to provide funds to States 

to enable them to increase the wages paid to targeted direct support 

professionals in providing services to individuals with disabilities under 

the Medicaid Program. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 4, 2009 

Mrs. CAPPS (for herself and Mr. TERRY) introduced the following bill; which 

was referred to the Committee on Energy and Commerce 

A BILL 

To amend title XIX of the Social Security Act to provide 

funds to States to enable them to increase the wages 

paid to targeted direct support professionals in providing 

services to individuals with disabilities under the Medicaid Program. 

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; FINDINGS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Direct Support Professionals Fairness and Security Act 

6 of 2009’’. 

7 (b) FINDINGS.—Congress finds the following: 


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1 (1) Direct support professionals (including 

2 workers referred to as direct support workers, direct 

3 care workers, personal assistants, personal attend4 ants, paraprofessionals) are the primary providers of 

5 long term care services for millions of individuals 

6 who have physical or mental disabilities. Direct sup7 port professionals provide assistance with activities 

8 of daily living, instrumental activities of daily living, 

9 assistance with rehabilitation, habilitation, training 

10 needs and other tasks. All provide essential supports 

11 that help keep individuals with disabilities connected 

12 to their communities. 

13 (2) These workers who provide intimate sup14 ports are predominately female and many are the 

15 sole breadwinners of their families. Although work16 ing and paying taxes, many women in these jobs re17 main impoverished and are eligible for many of the 

18 same Federal and State public assistance programs 

19 upon which the very individuals with disabilities to 

20 whom they provide supports must depend. 

21 (3) Throughout the nation, there is a critical 

22 shortage of direct support professionals. Vacancy 

23 and turn over rates are high. In many parts of the 

24 country, individuals with disabilities are unable to 

25 access the services they need, thereby jeopardizing 


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1 their health and quality of life, placing even greater 

2 burdens on their family members and informal care3 givers and creating long waiting lists for community 

4 placement. 

5 (4) The crisis that the nation faces today will 

6 only get worse. Over the next 30 years, there will be 

7 a rapid rise of the population over 65 years of age. 

8 At the same time, advances in medical science and 

9 drug therapy are increasing the number of people, of 

10 all ages, living with severe disabilities. Thus, while 

11 demand for direct support professional services is in12 creasing, the pool of younger, entry level workers is 

13 shrinking. By 2010, more than 780,000 additional 

14 workers must be found to fill long-term direct sup15 port staff positions. 

16 (5) To stabilize and increase the number of di17 rect support professionals in the work force, the 

18 wages and benefits of direct support professionals 

19 must be improved and made equitable among long 

20 term support options. 

21 (6) Medicaid is the single-largest payor of long22 term supports and services for people with disabil23 ities. Enhanced Federal Medicaid matching funds 

24 should be available to assist States committed to ad25 dressing wage differentials among direct support 


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1 professionals by increasing the wages of direct sup2 port professionals and supporting and improving the 

3 stability of the direct support professional workforce. 

4 SEC. 2. MEDICAID AMENDMENT. 

5 (a) AUTHORIZING ESTABLISHMENT OF DIRECT SUP6 PORT PROFESSIONAL WAGE ENHANCEMENT PLANS.— 

7 Title XIX of the Social Security Act is amended by adding 

8 at the end the following new section: 

9 ‘‘DIRECT SUPPORT PROFESSIONAL WAGE ENHANCEMENT

10 PLAN

11 ‘‘SEC. 1942. (a) STATE OPTION.—As a condition for 

12 the receipt of increased funding described in subsection 

13 (f), a State is required to provide for the implementation 

14 of a direct support professional wage enhancement plan 

15 under this section. 

16 ‘‘(b) DIRECT SUPPORT PROFESSIONAL WAGE EN17 HANCEMENT PLAN.— 

18 ‘‘(1) IN GENERAL.—For purposes of this sec19 tion, the term ‘direct support professional wage en20 hancement plan’ means a plan of a State that the 

21 Secretary determines meets the following require22 ments: 

23 ‘‘(A) DEADLINE FOR SUBMISSION.—The 

24 plan is submitted to the Secretary not later 

25 than 120 days after the date the Secretary pro26 vides notice to States under paragraph (3). 


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1 ‘‘(B) CONTENTS.— 

2 ‘‘(i) EQUALIZATION OF HOURLY WAGE

3 RATES.—The plan must describe how the 

4 State intends to use the funds made avail5 able under this section to increase the 

6 hourly wage rate of targeted direct support 

7 professionals so that by the end of the 5- 

8 year implementation period (as defined in 

9 subsection (g)(4)) such rate is equal to the 

10 average hourly wage rate of reference di11 rect support professionals. 

12 ‘‘(ii) ADDITIONAL PROVISIONS.—The 

13 plan must include the additional informa14 tion described in subsection (c). 

15 ‘‘(C) IMPLEMENTATION.—The plan must 

16 be developed and implemented in accordance 

17 with subsection (d). 

18 ‘‘(D) ANNUAL REPORTS.—The State must 

19 provide for annual assessments and reports in 

20 accordance with subsection (e). 

21 ‘‘(2) MODIFICATION OF PLAN.—Nothing in this 

22 section shall be construed as preventing a State 

23 from time to time and with the approval of the Sec24 retary from modifying a direct support professional 

25 wage enhancement plan so long as such plan, as 


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1 modified, continues to meet the requirements of 

2 paragraph (1). 

3 ‘‘(3) NOTICE.—Not later than 90 days after the 

4 date of the enactment of this section, the Secretary 

5 shall provide notice to States regarding the provi6 sions of this section, including the availability of en7 hanced funding to implement direct support profes8 sional wage enhancement plans. 

9 ‘‘(c) CONTENTS OF PLAN.—A direct support profes10 sional wage enhancement plan shall include, consistent 

11 with the other requirements of this section, the following: 

12 ‘‘(1) A description of how the State intends to 

13 use funds provided under this section to meet the re14 quirement of subsection (b)(1). 

15 ‘‘(2) A description of the prevailing hourly wage 

16 rates for targeted direct support professionals before 

17 the implementation of such plan and any hourly 

18 wage rate differentials between targeted direct sup19 port professionals and reference direct support pro20 fessionals. 

21 ‘‘(3) The impact of wage differentials and labor 

22 market conditions on the recruitment and retention 

23 of targeted direct support professionals, including 

24 current or projected labor shortages. 


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1 ‘‘(4) The identification of a specific, five-year 

2 performance goal to increase the hourly wage rate of 

3 targeted direct support professionals so as to elimi4 nate any wage rate differential between targeted and 

5 reference direct support professionals and the meth6 odology to be used by the State to achieve its goal. 

7 ‘‘(5) The annual performance goals and targets 

8 that the State will monitor to track progress toward 

9 achieving its five-year performance goal. 

10 ‘‘(6) Current efforts to increase and stabilize 

11 the State’s direct support professional labor force 

12 and how the plan shall be coordinated with such ef13 forts. 

14 ‘‘(7) Methods for assuring that funds provided 

15 under this section shall be spent in accordance with 

16 such plan, and shall not be used to supplant existing 

17 funds for wages and benefits or to reduce the State’s 

18 expenditures below the amount that the State would 

19 have paid had the plan not been in effect. 

20 ‘‘(8) A description of the stakeholders and col21 laborative process used consistent with subsection 

22 (d) to develop the plan and the means by which such 

23 collaboration shall continue during the implementa24 tion of the plan. 


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1 ‘‘(9) Assurances satisfactory to the Secretary 

2 that upon the expiration of the 5-year implementa3 tion period, the State shall provide funding nec4 essary to maintain the wage rates attained under the 

5 plan for targeted direct support professionals at the 

6 five-year performance goal increased annually there7 after by a percentage that is not less than the an8 nual percent increase in the employment cost index 

9 (as published quarterly by the Bureau of Labor Sta10 tistics). 

11 ‘‘(d) DEVELOPMENT AND IMPLEMENTATION OF

12 PLAN.—A direct support professional wage enhancement 

13 plan shall be developed and implemented in collaboration 

14 with— 

15 ‘‘(1) targeted individuals with disabilities and 

16 family representatives; 

17 ‘‘(2) targeted direct support professionals; 

18 ‘‘(3) agencies or provider organizations that 

19 serve targeted individuals with disabilities and em20 ploy targeted direct support professionals; and 

21 ‘‘(4) individuals and organizations representing 

22 the interests of those described in paragraphs (1) 

23 through (3). 

24 ‘‘(e) ANNUAL ASSESSMENT AND REPORT.— 

25 ‘‘(1) IN GENERAL.—A State shall— 


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1 ‘‘(A) perform an assessment of the 

2 operation of the direct care support profes3 sional wage enhancement plan in the State 

4 in each fiscal year; and 

5 ‘‘(B) report to the Secretary by Janu6 ary 1 following the end of the fiscal year, 

7 on the results of such assessment. 

8 ‘‘(2) CONTENTS.—Each such assessment shall 

9 include the following: 

10 ‘‘(A) An assessment of the effectiveness of 

11 the plan in increasing the wages of targeted di12 rect support professionals and reducing or 

13 eliminating the wage gap with reference direct 

14 support professionals. 

15 ‘‘(B) An assessment of the State’s progress 

16 in meeting its annual performance goals under 

17 the plan. 

18 ‘‘(C) An assessment of the effectiveness of 

19 the State’s collaboration with stakeholders on 

20 plan development and implementation issues. 

21 ‘‘(D) A review and assessment of State ac22 tivities to coordinate the plan with other activi23 ties in the State to improve and stabilize the di24 rect support professional workforce. 


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1 ‘‘(E) Recommendations for improving the 

2 plan. 

3 ‘‘(F) Such other information as the Sec4 retary may specify. 

5 ‘‘(f) INCREASE IN PAYMENT TO IMPLEMENT PLAN.— 

6 ‘‘(1) IN GENERAL.—Subject to paragraph (2), 

7 for each calendar quarter during the 5-year imple8 mentation period in which a direct support profes9 sional wage enhancement plan is in effect under this 

10 section in a State, the amount of payment for med11 ical assistance under section 1903(a)(1) shall be in12 creased by the wage enhancement incentive percent13 age (as defined in paragraph (3)(G)) multiplied by 

14 the portion of total funds expended during the quar15 ter for the provision of direct support services to tar16 geted individuals that are attributable to the wages 

17 of targeted direct support professionals. 

18 ‘‘(2) LIMITATION.— 

19 ‘‘(A) IN GENERAL.—Payments made under 

20 paragraph (1) shall be used only to increase the 

21 wages of targeted direct support professionals. 

22 ‘‘(B) TREATMENT OF EMPLOYEE BENE23 FITS AND SALARY RELATED BENEFITS.—For 

24 purposes of subparagraph (A), payments for 

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1 lated benefits (including mandatory employment 

2 taxes and benefits) shall be treated as payments 

3 to increase the wages of targeted direct support 

4 professionals so long as payments attributable 

5 to such non-wage benefits do not exceed 20 per6 cent of the total amounts that increase the 

7 wages of targeted direct support professionals. 

8 ‘‘(3) DEFINITIONS.—For purposes of this sub9 section: 

10 ‘‘(A) ANNUAL RATE DIFFERENTIAL PER11 CENTAGE.—The term ‘annual rate differential 

12 percentage’ means, with respect to a State for 

13 a year in which the direct support professional 

14 wage enhancement plan is in effect, the percent 

15 of the direct support professional wage rate dif16 ferential (as defined in subparagraph (E)) to be 

17 paid under plan for the year. 

18 ‘‘(B) AVERAGE REFERENCE DIRECT SUP19 PORT PROFESSIONAL HOURLY WAGE RATE.— 

20 The term ‘average reference direct support pro21 fessional hourly wage rate’ means, for a year 

22 under a direct support professional wage en23 hancement plan, the average direct support pro24 fessional hourly wage rate (as defined in sub25 paragraph (D)), including any projected inVerDate Nov 24 2008 00:35 Feb 07, 2009 Jkt 079200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H868.IH H868

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1 crease, paid in the year to reference direct sup2 port professionals who are employed by the 

3 State or, if there are no such employees, to ref4 erence direct support professionals who are em5 ployed by local governments in the State, or, 

6 when necessary to meet the purpose of the plan, 

7 any other reference wage rate defined by the 

8 State and as approved by the Secretary. 

9 ‘‘(C) BASE-YEAR AVERAGE TARGETED DI10 RECT SUPPORT PROFESSIONAL HOURLY WAGE

11 RATE.—The term ‘average targeted direct sup12 port professional hourly wage rate’ means, for 

13 a State, the average direct support professional 

14 hourly wage rate (as defined in subparagraph 

15 (D)) paid to targeted direct support profes16 sionals under the State plan in the 12-month17 period immediately preceding the 5-year imple18 mentation period. 

19 ‘‘(D) DIRECT SUPPORT PROFESSIONAL

20 HOURLY WAGE RATE.—The term ‘direct sup21 port professional hourly wage rate’ means— 

22 ‘‘(i) the rate of hourly wage paid to a 

23 direct support professional; plus 

24 ‘‘(ii) mandatory employment taxes 

25 and benefits (as defined in subparagraph 


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1 (F)) paid (as computed and applied on an 

2 hourly basis) with respect to such employ3 ment. 

4 ‘‘(E) DIRECT SUPPORT PROFESSIONAL

5 WAGE RATE DIFFERENTIAL.—The term ‘direct 

6 support professional wage rate differential’ 

7 means, for a State for a year, the amount by 

8 which— 

9 ‘‘(i) the average reference direct sup10 port professional hourly wage rate (as de11 fined in subparagraph (B)) for the State 

12 and year, exceeds 

13 ‘‘(ii) the base-year average targeted 

14 direct support professional hourly wage 

15 rate (as defined in subparagraph (C)) for 

16 the State. 

17 ‘‘(F) MANDATORY EMPLOYMENT TAXES

18 AND BENEFITS.—The term ‘mandatory employ19 ment taxes and benefits’ means taxes under 

20 section 3111 of the Internal Revenue Code of 

21 1986 (relating to the employer share of FICA 

22 taxes) and the employer’s share of unemploy23 ment compensation and worker’s compensation 

24 payments. 


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1 ‘‘(G) WAGE ENHANCEMENT INCENTIVE

2 PERCENTAGE.—The term ‘wage enhancement 

3 incentive percentage’ means— 

4 ‘‘(i) the product of (I) the total direct 

5 support professional wage rate differential 

6 (as defined in subparagraph (E), and (II) 

7 annual rate differential percentage (as de8 fined in subparagraph (A)); divided by 

9 ‘‘(ii) the average reference direct sup10 port professional hourly wage rate (as de11 fined in subparagraph (B)). 

12 ‘‘(g) INSPECTOR GENERAL AUDIT.—The Secretary, 

13 through the Inspector General of the Department of 

14 Health and Human Services, shall audit a sample from 

15 among the States in order to assess the effectiveness of 

16 progress made in reducing or eliminating the wage gap 

17 between targeted and reference direct support profes18 sionals through funds under this section. 

19 ‘‘(h) GAO STUDY.— 

20 ‘‘(1) STUDY.—The Comptroller General of the 

21 United States shall conduct a study concerning the 

22 wage equalization and recruitment and retention of 

23 direct support professionals who are providing serv24 ices and supports to individuals with disabilities. 


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1 ‘‘(2) REPORTS.—The Comptroller General shall 

2 submit to Congress reports, in the third and fifth 

3 years in which this section is being implemented, on 

4 progress made by States, and the impact of pay5 ments under this section, on providing wage equali6 zation and in improving recruitment and retention of 

7 direct support professionals. 

8 ‘‘(i) DEFINITIONS.—For purposes of this section: 

9 ‘‘(1) DIRECT SUPPORT PROFESSIONAL.—The 

10 term ‘direct support professional’ means an indi11 vidual who, whether in a supervisory or non-super12 visory capacity, provides services and supports, as 

13 needed, to an individual with a disability to assist in 

14 acquiring, maintaining or enhancing skills necessary 

15 to perform activities of daily living or instrumental 

16 activities of daily living and health-related functions 

17 through hands-on assistance, supervision, or cueing. 

18 Such term includes, among others, individuals who 

19 may be classified as nurses aides, home health aides, 

20 home care aides, personal care aides and personal 

21 assistants, in-home support workers, homemakers, 

22 behavioral specialists, habilitation specialist, mental 

23 health rehabilitation technicians, independent living 

24 skills specialists, crisis program workers, qualified 


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1 mental health or mental retardation professionals, 

2 and educational technicians. 

3 ‘‘(2) DIRECT SUPPORT PROFESSIONAL WAGE

4 ENHANCEMENT PLAN.—The term ‘direct support 

5 professional wage enhancement plan’ is defined in 

6 subsection (b)(1). 

7 ‘‘(3) DIRECT SUPPORT SERVICES.—The term 

8 ‘direct support services’ means a range of services 

9 and supports, provided by one or more persons, de10 signed to provide support and health-related services 

11 to an individual with a disability to enable them to 

12 perform, acquire, maintain or enhance skills nec13 essary to perform activities of daily living (ADL), in14 strumental activities of daily living (IADL) and 

15 health-related functions. Such term includes per16 sonal care services, consumer-directed personal as17 sistance services, rehabilitation services, habilitation 

18 services, and respite care. 

19 ‘‘(4) INDIVIDUAL WITH A DISABILITY.—The 

20 term ‘individual with a disability’ means an indi21 vidual who meets (or is regarded as meeting) the cri22 teria for being disabled under the supplemental secu23 rity income program under title XVI. Such term in24 cludes an individual who, regardless of age, is eligiVerDate Nov 24 2008 00:35 Feb 07, 2009 Jkt 079200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\H868.IH H868

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1 ble for and receiving medical assistance under this 

2 title for any benefits described in paragraph (i)(8). 

3 ‘‘(5) 5-YEAR IMPLEMENTATION PERIOD.—The 

4 term ‘5-year implementation period’ means, with re5 spect to a State and a direct support professional 

6 wage enhancement plan under this section, the pe7 riod of 20 calendar quarters beginning with the first 

8 full calendar quarter in which such plan is imple9 mented in the State under this section. Each of the 

10 five 4-calendar-quarter periods within such period 

11 shall be treated as a year for purposes of this sec12 tion. 

13 ‘‘(6) REFERENCE DIRECT SUPPORT PROFES14 SIONAL.—The term ‘reference direct support profes15 sional’ means a direct support professional who— 

16 ‘‘(A) is employed by a State or local gov17 ernment entity; and 

18 ‘‘(B) provides direct support services to 

19 targeted individuals with disabilities under this 

20 title. 

21 ‘‘(7) TARGETED DIRECT SUPPORT PROFES22 SIONAL.—The term ‘targeted direct support profes23 sional’ means a direct support professional who— 

24 ‘‘(A) is not employed by a State or local 

25 government entity; and 


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1 ‘‘(B) provides direct support services to 

2 targeted individuals with disabilities under this 

3 title. 

4 ‘‘(8) TARGETED INDIVIDUAL WITH A DIS5 ABILITY.—The term ‘targeted individual with a dis6 ability’ means an individual with a disability who is 

7 eligible for and is receiving medical assistance under 

8 this title for personal care services under section 

9 1905(a)(23), for rehabilitative services under section 

10 1905(a)(13), for home health care services under 

11 section 1905(a)(7), for intermediate care facility 

12 services for the mentally retarded under section 

13 1905(a)(15), for home and community-based serv14 ices under a State plan option under section 1915(j), 

15 for self-directed personal assistance services under a 

16 State plan amendment option under section 1915(i), 

17 or for home and community-based services under a 

18 waiver approved under section 1915(c) or section 

19 1115.’’. 

20 (b) CONFORMING AMENDMENT.—Section 1903(a)(1) 

21 of such Act (42 U.S.C. 1396b(a)(1)) is amended by insert22 ing ‘‘and section 1942(f)’’ after ‘‘1923(f)’’. 

23 (c) AUTHORIZATION OF PLANNING GRANTS.—The 

24 Secretary of Health and Human Services is authorized to 

25 award State planning grants in an amount not to exceed, 


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1 in the aggregate, $3,000,000, in order to assist States in 

2 establishing direct support professional wage enhancement 

3 plans under section 1942 of the Social Security Act, as 

4 added by subsection (a). 

Æ 


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