HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/CS/HB 391 Home Health Aides for Medically Fragile Children
SPONSOR(S): Health & Human Services Committee, Health Care Appropriations Subcommittee, Healthcare
Regulation Subcommittee, Tramont
TIED BILLS: IDEN./SIM. BILLS: SB 452
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Healthcare Regulation Subcommittee 15 Y, 0 N, As CS Guzzo McElroy
2) Health Care Appropriations Subcommittee 13 Y, 0 N, As CS Smith Clark
3) Health & Human Services Committee 18 Y, 0 N, As CS Guzzo Calamas
SUMMARY ANALYSIS
Currently, two Medicaid programs that authorize the Agency for Health Care Administration to pay a family member
caregiver to provide home health services to a Medicaid enrollee: the Consumer Directed Care Plus Program (CDC+) and
the Participant Directed Option (PDO). However, the CDC+ program only reimburses for certain personal care services,
and the PDO program only applies to adult long-term care Medicaid enrollees. No family caregiver option is available for
medically fragile children.
The bill creates the Home Health Aide for Medically Fragile Children Program to provide an opportunity for family
caregivers to receive training and gainful employment. The bill allows a family caregiver to be reimbursed by Medicaid, as
a home health aide for medically fragile children (HHAMFC), for care provided to a relative who is 21 years old or younger
with an underlying physical, mental, or cognitive impairment, eligible to receive skilled care or respite care services under
the Medicaid program. The bill requires AHCA to establish a fee schedule with a family caregiver reimbursement rate of
$25 per hour for up to 8 hours per day.
The bill authorizes a HHAMFC to perform certain tasks if delated by a registered nurse, such as medication
administration, tasks associated with activities of daily living, maintaining mobility, nutrition and hydration, and safety and
cleanliness. The bill requires services provided by a HHAMFC to result in a reduction in the number of private duty
nursing service hours provided to an eligible recipient. Further, the bill prohibits services provided by a HHAMFC from
duplicating private duty nursing services provided to an eligible recipient.
The bill requires the Agency for Health Care Administration (AHCA), in consultation with the Board of Nursing, to approve
HHAMFC training programs developed by home health agencies which meet certain criteria.
The bill provides civil liability protections for a home health agency (HHA) that terminates or denies employment to a
home health aide for medically fragile children for failure to comply with HHAMFC regulations or whose name appears on
a criminal screening report of the Department of Law Enforcement.
Beginning January 1, 2025, the bill requires AHCA to conduct annual assessments of the Home Health Aide for Medically
Fragile Children Program and report the findings to the Governor and the Legislature.
The bill provides $353,589 in recurring funds and $118,728 in nonrecurring funds from the Health Care Trust Fund, four
Full-Time Equivalent (FTE) positions and associated salary rate, for the purpose of implementing provisions in the bill.
The bill would have an indeterminate, significant, negative fiscal impact on AHCA not addressed in the bill’s appropriation,
and no fiscal impact on local government. See Fiscal Comments.
The bill becomes effective upon becoming law.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h0391e.HHS
DATE: 4/19/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Florida Medicaid
Medicaid is the health care safety net for low-income Floridians. Medicaid is a partnership of the federal
and state governments established to provide coverage for health services for eligible persons. The
program is administered by the Agency for Health Care Administration (AHCA) and financed by federal
and state funds. AHCA delegates certain functions to other state agencies, including the Department of
Children and Families (DCF), the Department of Health, the Agency for Persons with Disabilities, and
the Department of Elderly Affairs (DOEA).
The structure of each state’s Medicaid program varies and what states must pay for is largely
determined by the federal government, as a condition of receiving federal funds. 1 Federal law sets the
amount, scope, and duration of services offered in the program, among other requirements. These
federal requirements create an entitlement that comes with constitutional due process protections. The
entitlement means that two parts of the Medicaid cost equation – people and utilization – are largely
predetermined for the states. The federal government sets the minimum mandatory populations to be
included in every state Medicaid program. The federal government also sets the minimum mandatory
benefits to be covered in every state Medicaid program. These benefits include home health services.2
States can add benefits, with federal approval.
States have some flexibility in the provision of Medicaid services. Section 1915(b) of the Social Security
Act provides authority for the Secretary of the U.S. Department of Health and Human Services (HHS) to
waive requirements to the extent that he or she “finds it to be cost-effective and efficient and not
inconsistent with the purposes of this title.” Section 1115 of the Social Security Act allows states to
implement demonstrations of innovative service delivery systems that improve care, increase effic iency,
and reduce costs. These laws allow HHS to waive federal requirements to expand populations or
services, or to try new ways of service delivery.
Florida operates under a Section 1115 waiver to use a comprehensive managed care delivery model
for primary and acute care services, the Statewide Medicaid Managed Care (SMMC) Managed Medical
Assistance (MMA) program.3 Florida also has a waiver under Sections 1915(b) and (c) of the Social
Security Act to operate the SMMC Long-Term Care (LTC) program to provide long-term care services,
including nursing facility and home and community-based services, to individuals age 65 and over and
individuals age 18 and over who have a disability.4
Home Health Services
The SMMC program covers home health services that are medically necessary and can be safely
provided to the recipient in their home or in the community, including home health visits (skilled nursing
and home health aide services), private duty nursing (PDN) services, and personal care services. 5
1 Title 42 U.S.C. §§ 1396-1396w-5; Title 42 C.F.R. Part 430-456 (§§ 430.0-456.725) (2016).
2 S. 409.905, F.S.
3 S. 409.964, F.S.
4 Id.
5 Florida Medicaid Home Health Visit Services Coverages Policy (November 2016), available at
https://ahca.myflorida.com/content/download/7034/file/59G-4-130_Home_Health_Visit_Services_Coverage_Policy.pdf (last visited April
4, 2023).
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Home Health Aide Visits - Children
Florida Medicaid covers home health aide visits for recipients under the age of 21 who have a medical
condition or disability that substantially limits their ability to perform activities of daily living or
instrumental activities of daily living.6 The home health visit coverage policy includes up to four hours of
intermittent home health visits per day for any combination of skilled nursing or home health aide
services.7
Personal Care Services - Children
Personal care services are for Medicaid recipients who require more extensive care than can be
provided through a home health visit. They are provided by unlicensed (HHA) personnel to assist
Medicaid recipients under the age of 21 with activities of daily living and instrumental activities of daily
living to enable recipients to accomplish tasks they would be able to do for themselves if they did not
have a medical condition or a disability. A recipient may receive up to 24 hours or personal care
services per day that have been determined to be medically necessary and that can be safely provided
in the recipient’s home or in the community.8
Private Duty Nursing Services - Adults
PDN services are skilled nursing services provided to recipients under the age of 21 by a registered
nurse or licensed practical nurse. A recipient may receive up to 24 hours of private duty nursing
services per day if they have a physician’s order for PDN services that are medically necessary and
can be safely provided in their home or their community. The PDN coverage policy also allows for
reimbursement of up to 40 hours per week of an HHA provider for PDN services provided by the parent
or legal guardian of a recipient. 9 The parent or legal guardian must be employed by an HHA and have
a valid license as a registered nurse or licensed practical nurse.
Home Health Aides
Federal Home Health Aide Regulations
Pursuant to the Centers for Medicare and Medicaid Services (CMS) conditions of participation (COPs),
a Medicare certified HHA must ensure that their employees or contractors providing home health aide
services comply with federal training and competency requirements. 10
Training
Home health aide training must include classroom and supervised practical training in which the trainee
demonstrates knowledge while providing services to an individual under the direct supervision of a
registered nurse, or a licensed practical nurse under the supervision of a registered nurse. Classroom
and supervised practical training must total at least 75 hours. A minimum of 16 hours of classroom
training must precede a minimum of 16 hours of supervised practical training as part of the 75 hours. 11
A home health aide training program must address each of the following subject areas: 12
6
Activities of daily living include bathing, dressing, eating, maintaining continence, toileting, and transferring. Instrument al activities of
daily living include grocery shopping, laundry, light housework, meal preparation, medication management, money management,
personal hygiene, transportation, and using the telephone to take care of essential tasks.
7 Supra note 5.
8 Florida Medicaid Personal Care Services Coverage Policy (November 2016), available at
https://ahca.myflorida.com/content/download/7035/file/59G-4-215_Personal_Care_Services_Coverage_Policy.pdf (last visited April 4,
2023).
9 Florida Medicaid Private Duty Nursing Services Coverage Policy (November 2016), available at
https://ahca.myflorida.com/content/download/7036/file/59G-4-261_Private_Duty_Nursing_Services_Coverage_Policy.pdf (last visited
April 4, 2023).
10 42 C.F.R., §484.80.
11 42 C.F.R., §483.152.
12 Id.
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Communication and interpersonal skills.
Observation, reporting, and documentation of patient status and the care or service furnished.
Reading and recording vitals.
Basic infection prevention and control procedures.
Basic elements of body functioning and changes in body function that must be reported to an
aide's supervisor.
Maintenance of a clean, safe, and healthy environment.
Safety and emergency procedures.
Hygiene, grooming, and toileting.
Safe transfer techniques and ambulation, and normal range of motion and positioning.
Adequate nutrition and fluid intake.
Recognizing and reporting changes in skin condition and
Any other task that the HHA may choose to have an aide perform as permitted under state law.
Competency Evaluation and In-service Training
An individual may furnish home health services on behalf of an HHA only after that individual has
successfully completed a competency evaluation program. 13 The competency evaluation must be
performed by a registered nurse in consultation with other skilled professionals, as appropriate by
observing an aide's performance of the task with a patient or pseudo-patient.
A home health aide must receive at least 2 hours of in-service training during each 12-month period
under the supervision of a registered nurse. The training may be offered by any organization and may
occur while an aide is furnishing care to a patient. If there has been a 24-month lapse in furnishing
home health aide services for compensation, the individual must complete another training and
competency evaluation program before providing services again.14
Florida Home Health Aide Regulations
Home health aides are not licensed or certified in Florida. A home health aide that is employed by or
contracted with a licensed HHA must provide documentation of 40 hours of training on topics similar to
the CMS requirements or demonstrate competency through a competency test administered by the
HHA.15 The competency test is a combination of a written exam and demonstration of skills through the
performance of 14 tasks in the presence of a registered nurse or a licensed practical nurse under the
supervision of a registered nurse.
Under current law, a registered nurse is authorized to delegate any task, including medication
administration, to a home health aide, if the registered nurse determines that the home health aide is
competent to perform the task, the task is delegable under federal law, and the task:16
Is within the nurse’s scope of practice;
Frequently recurs in the routine care of a patient or group of patients;
Is performed according to an established sequence of steps;
Involves little or no modification from one patient to another;
May be performed with a predictable outcome;
Does not inherently involve ongoing assessment, interpretation, or clinical judgement; and
Does not endanger a patient’s life or well-being.
Family Caregiver Programs
Nearly half of children and youth with special health care needs receive family-provided care at home.17
Family caregivers tend to have financial challenges due to reduced or lost employment, and forego an
13 42 C.F.R., §483.40.
14 Id.
15 Rule 59A-8.0095(5), F.A.C.
16 S. 464.0156, F.S.
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estimated $17.6 billion in earnings per year.18 Family caregivers of children and youth with special
health care needs also tend to develop health issues of their own from the enduring physical and
mental strains imposed on the them in caring for their children. 19 Family caregivers report a need for
information related to managing stress, finding time for oneself, and balancing work and family
responsibilities, but what they report to need the most are policies that offer financial support for the
caregiving they provide.20
States can use Medicaid funds to pay family caregivers of children and youth with special health care
needs for the assistance they provide with activities of daily living or instrumental activities of daily living
through state plan options and federal Medicaid waiver authorities that allow for participant-directed
(also referred to as self-directed) services. Through these options, Medicaid enrollees or their
representatives have “employer authority” and are able to choose who provides their Medicaid-funded
services, which may include a family caregiver. Florida already allows this under the CDC+ program for
children with developmental disabilities and under the Participant Direction Option program for adult
LTC recipients.
States can also use Medicaid funds to pay family caregivers to provide certain medical assistance tasks
such as administering medications. When provided in the home, these services are considered home
health services, which are federally defined to include nursing services, medical supplies and
equipment, and home health aide services, physical and occupational therapy, speech pathology and
audiology services provided by an HHA.21 These services may be covered by a state’s mandatory
Medicaid State Plan Home Health benefit or by the Early, Periodic, Screening, Diagnosis and
Treatment (EPSDT) benefit.22
A state’s Medicaid State Plan Home Health benefit can also be used to reimburse family caregivers of
children with special needs for skilled nursing, home health aide, and other therapeutic services.
However, according to a recent study on state approaches to reimbursing family caregivers of children
with special needs, these services require the provider to meet certain professional qualifications and,
often, to be employed by a HHA, both of which may pose barriers for family caregivers.23 Additionally,
few states allow home health state plan benefits to be participant-directed, as a result, children or their
legal representatives m