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.