BILL NUMBER: AB 853	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Jones

                        FEBRUARY 22, 2007

   An act to add Chapter 21 (commencing with Section 9900) to
Division 3 of the Business and Professions Code, relating to home
care services, and making an appropriation therefor.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 853, as introduced, Jones. The Home Care Services Act of 2007.
   Existing law provides for the licensing and regulation of various
professions and vocations by various boards within the Department of
Consumer Affairs.
   This bill would enact the Home Care Services Act of 2007 and would
provide for the licensure and regulation of home care organizations,
as defined, by the Department of Consumer Affairs. The bill would
impose various licensure requirements on a home care organization and
would also impose a civil penalty on an individual or entity that
operates a home care organization without a license. The bill would
require a home care organization to inform a client of certain things
before arranging for the provision of home care services, as
defined, to that client, including, but not limited to, the types and
hours of available home care services and the extent to which
payment may be expected from specified sources. In addition, the home
care organization would be required to, among other things,
distribute to the client its advance directive policy and provide a
written notice to the client of certain rights. The bill would also
prohibit a home care organization from hiring an individual as a home
care aide unless that individual meets certain requirements,
including, but not limited to, demonstrating that he or she has
specified language skills. The bill would require a home care
organization to conduct background clearances on home care aides, as
specified, and to require home care aides to demonstrate they are
free of active tuberculosis. The bill would also require a home care
organization to conduct regular evaluations of its home care aides,
as specified, and to ensure that home care aides demonstrate basic
competency in certain areas. The bill would establish the Home Care
Organization Fund, would authorize the department to impose various
fees to be deposited in that fund, and would make a continuous
appropriation from that fund to the department to carry out the
provisions of the bill.
   Vote: majority. Appropriation: yes. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  The Legislature hereby finds and declares all of the
following:
   (a) Seniors, individuals with disabilities, and the frail
frequently find themselves in need of part-time to full-time
assistance from a caregiver in order to live at home independently.
   (b) Out of the 701,000 estimated home care aides working in the
country, more than 70,000 work in California.
   (c) The California Employment Development Department has
identified home care services as one of the fastest growing fields.
   (d) In California, most individuals hiring a home care
organization believe that the home care aide entering their home has
been thoroughly screened and trained. However, a business license is
the only requirement needed to provide nonmedical home care services
in an individual's home.
   (e) In view of the increasing number of home care aides entering
private homes, the number of incidents of abuse and neglect by home
care aides currently being reported in the media is alarming and
concerning because, according to prosecutors, for every reported
incident of abuse or neglect, four others go unreported.
   (f) Twenty-three states, including Texas, Illinois, Florida, and
New York, have standards requiring home care organizations to
register or obtain a license.
   (g) Discharge planners commonly keep lists of home care aides and
home care organizations for purposes of patient referral without any
information about the individuals or the organizations, thereby
placing the patient and the referring organization at risk.
   (h) Typically, family members looking for home care services are
in a crisis and will not ask all of the "right" questions when
choosing a home care organization. In addition, there is currently no
centralized list of home care organizations in California for family
members, seniors, or disabled individuals to consult when in need of
home care services for their loved ones or themselves.
  SEC. 2.  Chapter 21 (commencing with Section 9900) is added to
Division 3 of the Business and Professions Code, to read:
      CHAPTER 21.  HOME CARE SERVICES ACT OF 2007



      Article 1.  General Provisions


   9900.  This chapter shall be known and may be cited as the Home
Care Services Act of 2007.
   9901.  The Department of Consumer Affairs shall administer and
enforce this chapter.
   9902.  For purposes of this chapter, the following definitions
shall apply:
   (a) "Client" means an individual who receives home care services.
   (b) "Department" means the Department of Consumer Affairs.
   (c) "Home care aide" means an individual who provides home care
services to a client in the client's residence, and is synonymous
with "caregiver," "custodial care," "personal care attendant,"
"homemaker," and "companion." In addition, "home care aide" includes,
but is not limited to, an individual who qualifies as a personal
attendant, as defined in Industry Wage Order 15-2001, issued by the
Industrial Welfare Commission.
   (d) "Home care organization" or "organization" means an
individual, partnership, corporation, limited liability company,
joint venture, association, or other entity that arranges for the
provision of home care services by a home care aide to a client in
the client's residence and that is licensed pursuant to this chapter.
A "home care organization" does not include a domestic agency, as
defined in Section 1812.501 of the Civil Code.
   (e) "Residence" means a temporary or permanent location where a
client receives home care services.
   (f) "Transportation" means transportation in a motor vehicle in
good working order provided by a home care aide who is a licensed and
insured driver.
   9903.  (a) For purposes of this chapter, "home care services"
means services provided by a home care aide to a client who, because
of advanced age or physical or mental infirmity, cannot care for the
client's own needs. These services include, but are not limited to,
bathing, dressing, feeding, exercising, personal hygiene and
grooming, transferring, ambulating, positioning, toileting and
incontinence care, assisting with medication that the client normally
self-administers, housekeeping, meal planning and preparation,
laundry, transportation, correspondence, making telephone calls,
shopping for personal care items or groceries, and companionship.
Nothing in this subdivision shall be construed to authorize a home
care aide to administer medication.
   (b) Home care services shall not include any of the following:
   (1) Services authorized to be provided by a licensed home health
agency under Chapter 8 (commencing with Section 1725) of Division 2
of the Health and Safety Code.
   (2) Services authorized to be provided by a licensed hospice
pursuant to Chapter 8.5 (commencing with Section 1745) of Division 2
of the Health and Safety Code.
   (3) Services authorized to be provided by a licensed health
facility pursuant to Chapter 2 (commencing with Section 1250) of
Division 2 of the Health and Safety Code.
   (4) In-home supportive services provided pursuant to Article 7
(commencing with Section 12300) of Chapter 3 of Part 3 of Division 9
of the Welfare and Institutions Code.
   (c) Nothing in this chapter shall be construed to prohibit an
individual from employing a home care aide without the assistance of
a home care organization.

      Article 2.  Licensure


   9904.  (a)  No individual, partnership, corporation, limited
liability company, joint venture, association, or other entity shall
arrange for the provision of home care services by a home care aide
to a client in the state without first obtaining a license pursuant
to this chapter.
   (b) An individual or entity that violates this section shall be
liable for a civil penalty not to exceed one hundred dollars ($100)
per day for each calendar day of violation.
   (c) Upon discovering that an individual or entity is in violation
of this section, the department shall send a written notice of
noncompliance to the individual or entity and to the Attorney General
or a district attorney. Upon receiving this notice, the Attorney
General or a district attorney may do any of the following:
   (1) Issue a cease and desist order, which shall remain in effect
until the individual or entity has obtained a license pursuant to
this chapter. If the individual or entity fails to comply with the
cease and desist order, the Attorney General or a district attorney
may apply for an injunction.
   (2) Impose the civil penalty described in subdivision (b).
   (3) Bring an action against the individual or entity under Chapter
5 (commencing with Section 17200) of Part 2 of Division 7.
   9905.  A home care organization that has its principal place of
business in another state shall, in addition to the other
requirements of this chapter, comply with both of the following
requirements before arranging for the provision of home care services
by a home care aide to a client in California:
   (a) Have an office in California.
   (b) Obtain authorization from the Secretary of State to conduct
business in California.
   9906.  The enactment of this chapter is an exercise of the police
power of the state for the protection of the public welfare,
prosperity, health, safety, and peace of its people. The civil
penalties provided by this chapter are in addition to any other
penalty provided by law.
   9907.  In order to carry out the provisions of this chapter, the
department shall do all of the following:
   (a) Adopt rules and regulations to implement this chapter.
   (b) Establish procedures for the receipt, investigation, and
resolution of complaints against home care organizations.
   (c) Make available on the department's Internet Web site a list of
home care organizations, including, for each organization, the
organization's name, address, license number, and the effective date
of its license.
   9908.  (a) The department shall issue a license to a home care
organization that meets all of the following requirements:
   (1) Submits an application, on a form prescribed by the
department.
   (2) Pays a licensure fee, as prescribed by the department pursuant
to Section 9921.
   (3) Submits proof of general and professional liability insurance
in the amount of at least one million dollars ($1,000,000) per
occurrence and three million dollars ($3,000,000) in the aggregate.
   (4) Submits proof of a valid workers' compensation policy covering
its home care aides. The proof shall consist of the policy number,
the effective and expiration dates of the policy, and the name and
address of the policy carrier.
   (5) Passes a background clearance pursuant to Section 9910.
   (6) Complies with the requirements of this chapter.
   (b) The term of a license issued under this section is one year.
The license may be renewed upon application to the board and payment
of the renewal fee prescribed by the board pursuant to Section 9921.
   (c) Following the receipt of an application for a license or
renewal of a license under this section, the department may conduct
an onsite inspection of the applicant to ensure compliance with this
chapter.
   9909.  At least 30 days before the expiration of a license, the
department shall mail to the licensee, at the latest address
furnished by the licensee to the department, a notice stating the
amount of the renewal fee and the date on which it is due, and that
failure to pay that fee on or before the date due will result in the
expiration of the license.
   9910.  (a) In order to obtain a license, the following individual
or individuals shall consent to the background clearance described in
subdivision (b) of Section 9918:
   (1) The owner or owners of a home care organization if the owners
are individuals.
   (2) If the owner of a home care organization is a corporation,
limited liability company, joint venture, association, or other
entity, an individual having a 10-percent or greater interest in that
entity.
   (b) If the background clearance conducted pursuant to subdivision
(a) discloses a conviction for a felony or a crime that evidences an
unfitness to operate a home care organization, the application for a
license shall be denied. This subdivision shall not apply to deny a
license if the individual or individuals, as applicable, present
evidence satisfactory to the department that the individual or
individuals, as applicable, have been rehabilitated and presently are
of good character so as to justify the issuance of a license.

      Article 3.  Complaints, Inspections, and Investigations


   9911.  (a) The department shall investigate complaints filed
against home care organizations.
   (b) The department may verify through periodic inspections that a
home care organization meets the requirements of this chapter and the
regulations adopted pursuant thereto. When possible, the department
shall schedule that inspection in advance in order to reduce the
number of inspections and the disruption to the organization.
   (c) An investigation or inspection conducted by the department
pursuant to this chapter may include both of the following:
   (1) Inspection of the books, records, and premises of a home care
organization. An organization's refusal to make those records, books,
or premises available shall constitute cause for the revocation of
the organization's license.
   (2) Direct observation of the provision of home care services to a
client in the client's residence, if the client's consent is
obtained.

      Article 4.  Organization Operating Requirements


   9912.  A home care organization shall do all of the following:
   (a) Post its license in its place of business in a conspicuous
location, visible both to clients and to its home care aides.
   (b) Operate the organization in a commercial office space that
complies with local zoning ordinances.
   (c) Have all of the following plans, procedures, or policies in
place:
   (1) Plans and procedures to be followed in the event of
emergencies or natural disasters that would result in the
interruption of home care services.
   (2) A documented backup staffing plan in the event that a home
care aide scheduled to provide home care services becomes
unavailable.
   (3) A written policy regarding advance directives.
   (4) A receipt and disbursement policy for expenditures made on
behalf of a client to ensure that financial abuse does not occur.
   (d) Maintain a valid workers' compensation policy covering its
home care aides.
   (e) Maintain an employee dishonesty bond, including third-party
coverage, with a minimum limit of ten thousand dollars ($10,000).
   (f) Comply with the regulations adopted by the department in order
to implement this chapter.
   9913.  With respect to home care aides employed by a home care
organization, the organization shall do all of the following:
   (a) Investigate complaints made by a client, or a client's family
member or guardian, against home care aides regarding a service that
is or fails to be furnished. The organization shall document both the
existence and the resolution of those complaints.
   (b) Evaluate home care aides as follows:
   (1) Conduct an annual assessment of the performance and
effectiveness of each home care aide, including, if client consent is
obtained, at least one observation of the aide providing home care
services in the residence of a client.
   (2) Every 62 days, supervise each home care aide providing home
care services in the residence of a client, provided that client
consent is obtained. The supervision required by this paragraph shall
not be billed to the client.
   (c) Ensure that a home care aide, when providing services to a
client, has access at all times to a representative of the
organization who is in a supervisory capacity and who does not
regularly render home care services to that client.
   (d) Require a home care aide, while providing home care services,
to wear a badge that includes all of the following information in
12-point type or larger:
   (1) The aide's name.
   (2) A photograph of the aide.
   (3) The name of the home care organization.
   (4) The expiration date of the license of the home care
organization.
   (e) Require home care aides to demonstrate that they are free of
active tuberculosis pursuant to Section 9919.
   (f) Require home care aides to annually complete not less than two
hours of training on job-related topics.
   (g) Prohibit home care aides from accepting money or property from
a client without written permission from the home care organization.


      Article 5.  Client Rights


   9914.  With respect to clients, a home care organization shall do
all the following:
   (a) Advise a client of any change in the client's plan for home
care services.
   (b) Before arranging for the provision of home care services to a
client, do all of the following:
   (1) Distribute to the client its advance directive policy, along
with a written summary of applicable state law.
   (2) Advise the client of its policy regarding the disclosure of
client records.
   (3) Inform the client of the types and hours of available home
care services.
   (4) Inform the client, orally and in writing, of the home care
services that are or are not covered by Medi-Cal or Medicare, as
applicable, and the extent to which payment may be expected from the
client, from Medicare or Medi-Cal, and from any other source.
   (c) Inform the client, both orally and in writing, of a change to
the information provided in paragraph (4) of subdivision (b) as soon
as possible, but not later than 30 days of becoming aware of that
change.
   (d) Have a written agreement with the client that includes, but is
not limited to, the cost of and the hours during which home care
services will be provided to the client and reference to the personal
attendant requirements, if applicable, as referenced in Wage Order
15-2001, issued by the Industrial Welfare Commission.
   9915.  (a) Before arranging for the provision of home care
services to a client, a home care organization shall provide a
written notice to the client stating that the client has all of the
following rights:
   (1) The right to have the client's property treated with respect.
   (2) The right to voice grievances free from reprisal regarding a
home care service that is or fails to be provided or regarding the
violation of any of the rights listed in this section.
   (3) The right to be informed of and to participate in the planning
of the client's home care services.
   (4) The right to confidentiality of the client's personal
information.
   (b) A home care organization shall maintain written documentation
showing that it has complied with subdivision (a).
   (c) If a client lacks the capacity to understand the rights listed
in this section, as determined by a court of competent jurisdiction
or by the client's physician, unless the physician's opinion is
controverted by the client or the client's legal representative, the
client's legal representative shall have those rights.
   (d) A home care organization shall protect, and promote the
exercise of, the rights listed in this section.

      Article 6.  Home Care Aides


   9916.  (a) On and after January 1, 2008, a home care organization
shall not hire an individual as a home care aide unless the
individual complies with all of the following requirements:
   (1) Completes, to the satisfaction of the organization, an
individual interview.
   (2) Provides not less than two work or school related references
or, for an individual with no previous work experience, not less than
two character references from nonrelatives. The organization shall
verify the references before hiring the individual.
   (3) Demonstrates that he or she has language skills that are
sufficient to read and understand instructions, prepare and maintain
written reports and records, and communicate with a client.
   (b) A home care organization that hires an individual pursuant to
subdivision (a) shall ensure that the individual, within the first 30
days of employment, demonstrates basic competency in all of the
following areas:
   (1) Universal health precautions, including, but not limited to,
infection control.
   (2) Client rights.
   (3) Client safety.
   (4) The home care organization's emergency procedures.
   (5) How to observe, report, and document changes in a client's
daily living skills.
   (6) How to report, prevent, and detect abuse and neglect.
   (7) How to assist a client with personal hygiene and other home
care services.
   (8) If the home care organization provides transportation
services, how to safely transport a client.
   9917.  A home organization shall, by January 1, 2009, ensure that
home care aides who were hired before January 1, 2008, meet both of
the following requirements:
   (a) Demonstrate the language skills specified in paragraph (3) of
subdivision (a) of Section 9916.
   (b) Demonstrate basic competency in the areas specified in
subdivision (b) of Section 9916.
   9918.  (a) A home care organization shall conduct a background
clearance on an individual hired as a home care aide, unless the
individual holds a valid, unexpired license or registration in a
health-related field that requires a background check as a condition
of the license or registration.
   (b) The background clearance shall consist of either of the
following:
   (1) A criminal history record check conducted by the California
Department of Justice and the Federal Bureau of Investigation.
   (2) A background check conducted by an investigative consumer
reporting agency, as defined in Section 1786.2 of the Civil Code.
This background check shall include, but shall not be limited to, all
of the following:
   (A) A social security number trace that provides the individual's
residential history and prior names.
   (B) A criminal history search in all counties and federal
districts in which, as disclosed by the individual and according to
the results of the trace specified in subparagraph (A), the
individual has resided, worked, or attended school within the past
seven years.
   (C) A search of a commercial criminal record database using both
the current and any previous names of the individual, as disclosed by
the individual and according to the results of the trace specified
in subparagraph (A).
   (c) If the background clearance conducted pursuant to subdivision
(b) discloses a conviction for a violation of any of the following
provisions of the Penal Code, the organization shall deny or
terminate, as applicable, the employment of that individual:
   (1) Section 187, 203, 205, 206, 207, 209, 210, 210.5, 211, 220,
222, 243.4, 245, 261, 262, 264.1, 265, 266, 267, 273.5, 285, 288,
288.5, 289, 289.5, 368, 451, 459, 470, 475, 484, 484b, 484d, 484e,
484f, 484g, 484h, 484i, 484j, 487, 488, 496, 503, 518, or 666.
   (2) Subdivision (a) of Section 192.
   (3) Subdivision (a) or (d) of Section 273.
   (4) Subdivision (c), (d), (f), or (g) of Section 286.
   (5) Subdivision (c), (d), (f), or (g) of Section 288a.
   (d) The organization shall complete the background clearance
specified in subdivision (b) on home care aides whose employment
began before January 1, 2008, within 180 days of the effective date
of this section.
   (e) A home care aide hired on or after January 1, 2008, shall not
be permitted to provide home care services until he or she passes the
background clearance pursuant to this section.
   9919.  (a) An individual hired as a home care aide on or after
January 1, 2008, shall be terminated from employment unless the
individual submitted to an examination within six months prior to
employment or submits to an examination within 14 days after
employment to determine that the individual is free of active
tuberculosis. For purposes of this section, "examination" consists of
a tuberculin skin test and, if that test is positive, an X-ray of
the lungs.
   (b) A health care aide whose employment with a home care
organization began before January 1, 2008, shall, within 60 days of
the effective date of this section, submit to the examination
described in subdivision (a).
   (c) After submitting to an examination, a home care aide who is
skin test negative shall be required to undergo an examination at
least once every two years. Once a home care aide has a documented
positive skin test that has been followed by an X-ray, the
examination is no longer required.
   (d) After the examination, a home care aide shall submit, and the
organization shall keep on file, a certificate from the examining
practitioner showing that the home care aide was examined and found
free from active tuberculosis.
   (e) The examination is a condition of initial and continuing
employment with the home care organization. The home care aide shall
pay the cost of the examination.
   (f) A home care aide who transfers employment from one
organization to another shall be deemed to meet the requirements of
subdivision (a) or (b) if that individual can produce a certificate
showing that he or she submitted to the examination within the past
two years and was found to be free of communicable tuberculosis, or
if it is verified by the organization previously employing him or her
that it has a certificate on file which contains that showing.
   (g) Notwithstanding the results of an examination, a home care
aide shall annually complete a tuberculosis survey that includes, but
is not limited to, all of the following information:
   (1) The individual's name, address, and telephone number.
   (2) The date and result of all previous tuberculin skin tests and,
where applicable, all X-ray examinations.
   (3) Answers to questions concerning whether the individual has
recently experienced any of the following symptoms:
   (A) A chronic cough for a period exceeding two weeks.
   (B) Chronic fatigue or listlessness for a period exceeding two
weeks.
   (C) Fever for a period exceeding one week.
   (D) Night sweats.
   (E) Unexplained weight loss of eight pounds or more.

      Article 7.  Revenues


   9920.  There is in the State Treasury the Home Care Organization
Fund. Notwithstanding Section 13340 of the Government Code, all money
in the fund is continuously appropriated to the department for the
purpose of carrying out and enforcing this chapter.
   9921.  The department shall assess licensure, renewal, background
check, and other fees for each location of a home care organization
in amounts sufficient to cover the costs of administering this
chapter. The department may periodically adjust these fees for
inflation. The fees collected pursuant to this chapter shall be
deposited in the Home Care Organization Fund.