Chapter 901 Oregon Laws 2001

AN ACT

HB 3816

Relating to the Home Care Commission; creating new provisions; amending ORS 411.590; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. As used in sections 1 to 7 of this 2001 Act:

(1) “Activities of daily living” includes but is not limited to the following:

(a) Bathing and personal hygiene;

(b) Dressing and grooming;

(c) Eating;

(d) Mobility;

(e) Bowel and bladder management; and

(f) Cognition.

(2) “Area agency” has the meaning given that term in ORS 410.040.

(3) “Commission” means the Home Care Commission established and operated pursuant to the Constitution of the State of Oregon and sections 1 to 7 of this 2001 Act.

(4) “Disabled person” has the meaning given that term in ORS 410.040.

(5) “Elderly” has the meaning given that term in ORS 410.040.

(6) “Home care services” means assistance with activities of daily living and self-management provided by a home care worker in the home of an elderly or disabled person.

(7) “Home care worker” means a person:

(a) Who is hired directly by an elderly person or disabled person that receives moneys from the department for that purpose;

(b) Whose compensation is paid in whole or in part by the Department of Human Services, an area agency or other public agency that receives moneys from the department for that purpose; and

(c) Who provides either hourly or live-in home care services.

(8) “Self-management” includes but is not limited to the following activities, other than activities of daily living, required by an individual to continue living independently in the individual's own home:

(a) Medication and oxygen management;

(b) Transportation;

(c) Meal preparation;

(d) Shopping; and

(e) Client focused general household work.

SECTION 2. (1) The Home Care Commission is created, consisting of nine members appointed by the Governor and confirmed by the Senate as provided in ORS 171.562 to 171.565. Five members shall be elderly or disabled persons who are receiving or who have received home care services. One member shall be appointed to represent each of the following entities, or a successor entity, for as long as a comparable entity exists:

(a) Governor's Commission on Senior Services;

(b) Senior and Disabled Services Division;

(c) Oregon Disabilities Commission; and

(d) Oregon Association of Area Agencies on Aging and Disabilities.

(2) The members shall be appointed for terms of three years. A member is eligible for reappointment and may serve no more than three consecutive terms. When making appointments to the commission, the Governor may consider recommendations from the entities listed in subsection (1) of this section and other organizations representing the interests of elderly and disabled persons.

(3) If there is a vacancy for any cause, the Governor shall make an appointment to become immediately effective for the unexpired term.

(4) The commission shall exercise all powers necessary to effectuate the purposes of sections 1 to 7 of this 2001 Act.

(5) The Governor shall select annually from the membership of the commission a chairperson who serves at the pleasure of the Governor. The chairperson or majority of the members of the commission then in office shall have the power to call regular or special meetings of the commission. The commission shall meet at a place, date and hour determined by the commission.

(6) Members of the commission shall be paid compensation and expenses as provided in ORS 292.495 from such funds as may be available to the commission.

(7) Meetings of the commission shall be open and public in accordance with ORS 192.610 to 192.690. Records of the commission shall be open and available to the public in accordance with ORS 192.410 to 192.505. The commission shall meet regularly with the executive director of the Home Care Commission to make recommendations and set policy, to approve or reject reports of the director, to adopt rules and to transact other business.

(8) A quorum of the commission shall consist of a majority of the members of the commission then in office. All decisions of the commission shall be made by a majority of all the members then in office.

(9) The commission shall, in accordance with ORS 183.310 to 183.550, adopt and enforce rules to carry out the provisions of sections 1 to 7 of this 2001 Act.

SECTION 3. (1) The Home Care Commission shall ensure the quality of home care services by:

(a) Establishing qualifications for home care workers with the advice and consent of the Department of Human Services as the single state Medicaid agency;

(b) Providing training opportunities for home care workers and elderly and disabled persons who employ home care workers;

(c) Establishing and maintaining a registry of qualified home care workers;

(d) Providing routine, emergency and respite referrals of home care workers;

(e) Entering into contracts with public and private organizations and individuals for the purpose of obtaining or developing training materials and curriculum or other services as may be needed by the commission; and

(f) Working cooperatively with area agencies and state and local agencies to accomplish the duties listed in paragraphs (a) to (e) of this subsection.

(2) The commission shall employ an executive director who is appointed by the Governor and who shall serve at the pleasure of the Governor. The commission may employ other staff as may be necessary to carry out its functions. An employee of the commission is not an employee of the State of Oregon for any purpose.

(3) When conducting its activities, and in making decisions relating to those activities, the commission shall first consider the effect of its activities and decisions on:

(a) Improving the quality of service delivered by home care workers; and

(b) Ensuring adequate hours of service are provided to elderly and disabled persons by home care workers.

(4) The commission has the authority to contract, lease, acquire, hold, own, encumber, insure, sell, replace, deal in and with and dispose of real and personal property.

SECTION 4. The Department of Human Services, an area agency or other public agency shall provide to an individual seeking a home care worker the names of qualified individuals, in the appropriate geographic area, who have been placed on the registry maintained by the Home Care Commission.

SECTION 5. (1) An elderly or disabled person who hires a home care worker has the right to select the elderly or disabled person's own home care worker, including a family member.

(2) An elderly or disabled person who hires a home care worker has the right to terminate the employment of the home care worker at any time and for any reason.

(3) The Department of Human Services shall determine the eligibility of an elderly or disabled person to receive home care services under the Medicaid program and state-funded long term care services.

SECTION 6. (1) For purposes of collective bargaining under ORS 243.650 to 243.782, the Home Care Commission is the employer of record for home care workers.

(2) Notwithstanding subsection (1) of this section, home care workers may not be considered for any purposes to be an employee of the State of Oregon, an area agency or other public agency.

(3) The Oregon Department of Administrative Services shall represent the commission in collective bargaining negotiations with the certified or recognized exclusive representatives of all appropriate bargaining units of home care workers. The department is authorized to agree to terms and conditions of collective bargaining agreements on behalf of the commission and the Department of Human Services.

SECTION 7. Notwithstanding ORS 243.650 (19) and (20), the Home Care Commission shall be considered a public employer and home care workers shall be considered public employees governed by ORS 243.650 to 243.782. Home care workers have the right to form, join and participate in the activities of labor organizations of their own choosing for the purpose of representation and collective bargaining with the commission on matters concerning employment relations. These rights shall be exercised in accordance with the rights granted to public employees with mediation and interest arbitration under ORS 243.742 as the method of concluding the collective bargaining process. Home care workers do not have the right to strike.

SECTION 8. ORS 411.590 is amended to read:

411.590. A person who is [employed] hired as a [housekeeper, homemaker or otherwise in the residence of a recipient of public assistance or services, whose compensation is paid in whole or in part by the Adult and Family Services Division, the Senior and Disabled Services Division, the Mental Health and Developmental Disability Services Division, the State Office for Services to Children and Families or an area agency, as defined in ORS 410.040,] housekeeper or homemaker, or home care worker as defined in section 1 of this 2001 Act, and is not otherwise employed by the [division, office or agency] Department of Human Services, an area agency or other public agency, shall not for any purposes be deemed to be an employee of the State of Oregon or an area agency whether or not the [division, office] department or agency selects the person for employment or exercises any direction or control over the person's employment. However, nothing in this section precludes the state or an area agency from being considered the employer of the person for purposes of ORS chapter 657.

SECTION 9. Section 4 of this 2001 Act becomes operative on July 1, 2003.

SECTION 10. This 2001 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2001 Act takes effect on its passage.

Approved by the Governor August 2, 2001

Filed in the office of Secretary of State August 2, 2001

Effective date August 2, 2001

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