BILL ANALYSIS Ó
SB 411
Page 1
SENATE THIRD READING
SB 411 (Price)
As Amended August 13, 2012
Majority vote
SENATE VOTE :25-13
HUMAN SERVICES 4-2 HEALTH 12-6
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|Ayes:|Beall, Ammiano, Hall, |Ayes:|Monning, Ammiano, Atkins, |
| |Portantino | |Bonilla, Eng, Hayashi, |
| | | |Roger Hernández, Bonnie |
| | | |Lowenthal, Mitchell, Pan, |
| | | | V. Manuel Pérez, |
| | | |Williams |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Jones, Grove |Nays:|Logue, Garrick, Mansoor, |
| | | |Nestande, Silva, Smyth |
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APPROPRIATIONS 12-5
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|Ayes:|Fuentes, Blumenfield, | | |
| |Bradford, Charles | | |
| |Calderon, Campos, Davis, | | |
| |Gatto, Hall, Hill, Lara, | | |
| |Mitchell, Solorio | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Harkey, Donnelly, | | |
| |Nielsen, Norby, Wagner | | |
| | | | |
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SUMMARY : Establishes the Home Care Services Act of 2011 (HCSA)
requiring the Department of Social Services (DSS) to license
private agencies that provide non-medical home care services,
and to certify home care aides. Specifically, this bill :
General Provisions
1)Establishes the Home Care Services Act of 2011, and requires
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DSS to administer and enforce the law.
2)Defines "home care aide" as an individual who provides home
care services to a client in the client's residence, and
includes a person who qualifies as a personal attendant as
defined by the Industrial Welfare Commission, but does not
include either a family member, as defined, or a person
employed by a vendor or contractor of a regional center or the
Department of Developmental Services (DDS) providing services
to people with developmental disabilities pursuant to the
Lanterman Developmental Disabilities Services Act (Lanterman
Act) or the California Early Intervention Services Act (Early
Intervention Act) when funding is provided through DDS and
more than 50% of the recipients of the organization are people
with developmental disabilities.
3)Defines "home care organization" (HCO) as 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, but does not include a home
health agency; a licensed hospice; a health facility; a
licensed home medical device retail facility; a residential
care facility for the elderly; a vendor or contractor of a
regional center or DDS providing services to people with
developmental disabilities, as described in 2) above; an
employment agency as defined in Civil Code Section 1812.5095
that is not the employer of home care aides or other workers
who provide assistance with activities of daily living; or, a
county providing in-home supportive services pursuant to the
In-Home Supportive Services (IHSS) program.
4)Defines "home care services" as services provided by a home
care aid to a client who, because of advanced age or physical
or mental infirmity, cannot perform these services for himself
or herself, but does not include services provided by a
licensed home health agency; a licensed hospice; a licensed
health facility; a licensed residential care facility for the
elderly; the adherents of and in connection with the practice
of the religious tenets of any well recognized church or
denomination, so long as they do not otherwise engage in the
practice of nursing; or, services provided pursuant to the
IHSS program.
5)Defines "Employment Agency" as an agency that procures,
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offers, refers, provides, or attempts to provide, but is not
the employer of, a home care aide who provides home care
services to clients and consumers in accordance with Civil
Code Section 1812.5095, as long as the agency does not employ
a home care aide or a person who assists with activities of
daily living to the consumer.
6)Defines a "Priority One Complaint" as a complaint of sexual
abuse that involves penetration, a complaint of physical abuse
that results in bodily injury, or one that results in the
death of a client due to suspicious circumstances.
7)Defines a "Priority Two Complaint" as a complaint of sexual
abuse that involves sexual behavior that does not involve
penetration, physical abuse that results in minor injury, and
a complaint of felony offenses.
Licensure
8)Prohibits, on or after July 1, 2013, non-exempted entities
from providing home care services by a home care aide without
first obtaining a license pursuant to the HCSA, and
establishes civil penalties for violations of this
requirement.
9)Allows DSS to adopt rules and regulations to implement the
act; to investigate Priority One and Two Complaints against
home care aides not employed by a HCO; establish procedures
for the receipt, investigation and resolution of complaints;
maintain a registry on its Internet Web site of all certified
home care aides, containing limited information that includes
their employers, their certification status, and the status of
disciplinary actions against them; and, maintain a registry on
its Internet Web site of all licensed HCOs containing
specified information.
10)Requires DSS to issue an HCO license to an entity meeting
requirements, including, proof of liability insurance; proof
of workers' compensation coverage; and, background clearances
of the organization's owners.
11)Requires Department of Justice (DOJ) background clearances of
the owners of HCOs, as described, and requires DSS to request
subsequent arrest notification service from DOJ. Requires DOJ
to charge a fee to cover costs related to this bill.
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12)Authorizes DSS to deny a license if the background clearance
discloses a conviction for a felony or crime that is
substantially related to the qualifications, functions, or
duties of operating an HCO; but, provides that the license
shall not be denied if, pursuant to applicable Penal Code
provisions, the applicant has obtained a certificate of
rehabilitation or the information or accusation against the
applicant has been dismissed.
13)Requires DSS, in determining whether or not to deny a license
based on a prior conviction, to consider specified factors
related to the nature and seriousness of the crime, its
relationship to the person's employment duties and
responsibilities, the person's post-conviction activities, the
time elapsed, the individual's compliance with conditions of
parole, probation, restitution or other sanctions, other
evidence of rehabilitation, employment history and employer
recommendations, and the circumstances surrounding the
commission of the offense demonstrating the unlikelihood of
repetition.
14)Requires DSS to provide notice, as specified, to the
applicant by personal service or registered mail if a license
application is denied based on a prior criminal conviction,
and specifies procedures for requesting and conducting an
administrative hearing.
15)Prohibits a public or private organization, except a county
providing IHSS services or other entity exempted from
licensing under the HCSA, from representing itself to be an
HCO, implying that it has a license to provide home care
services, referring to employee bonding in relation to such
services, or using the terms "health care organization," "home
care," "in-home care," or any combination of such terms in its
name, unless it is licensed pursuant to the HCSA.
16)Requires DSS to issue a notice of violation if it determines
that a home care aide is in violation of the HCSA and its
related regulations, as specified.
17)Allows DSS to investigate complaints against an employment
agency if it fails to comply with the HCSA and levy civil
penalties of up to $900 per day per violation.
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Complaints, Inspections, and Investigations
18)Allows DSS to investigate complaints filed against HCOs.
19)Requires DSS to conduct random, unannounced inspections once
every five years to ensure compliance with the HCSA.
HCO Operating Requirements
20)Requires HCOs to comply with regulations promulgated by DSS
and adhere to other specified operating requirements.
21)Requires HCOs, with respect to home care aides employed by
the organization, to consult the DSS registry before hiring
the individual, ensure that he or she meets the requirements
for home care aides specified in the act, evaluate home care
aides, as provided, and ensure that, when providing services,
home care aides have access to a supervisor at all times and
wear an identification badge.
22)Requires HCOs to investigate complaints against a home care
aide made by a client or the client's family, and if the HCO
determines that the home care aide violated the HCSA, it shall
immediately notify DSS to take the appropriate action to
address the violation.
23)Requires HCOs to ensure that each of its home care aides
employed prior to January 1, 2014, are certified pursuant to
the HCSA by July 1, 2014.
24)Requires HCOs to immediately notify DSS when they no longer
employ a home health care aide to allow DSS to update its
Internet Web site.
25)Requires home care aides to demonstrate that they are free of
active tuberculosis, as specified, and to annually complete
not less than eight paid DSS-approved job-related training,
and prohibits home care aides from accepting money or property
from a client without written permission of the HCO.
Employment Agency Insurance
26)Requires employment agencies that are exempt from licensure
as an HCO to maintain general and professional liability
insurance of $1,000,000 per occurrence and $3,000,000 in the
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aggregate.
Client Rights
27)Establishes requirements on HCOs to protect clients' rights,
including the following:
a) Advising clients of changes in the client's plan for
home care services; and,
b) Prior to arranging for the provision of home care
services to a client:
i) Distributing to the client its advance directive
policy and a summary of applicable state law;
ii) Advising the client of its policy on disclosure of
client records;
iii) Informing the client of the types and hours of
available home care services;
iv) Advising and updating the client, orally and in
writing, concerning applicable payment sources, including
Medi-Cal or Medicare; and,
v) Having a written agreement with the client that
includes the cost of and hours during which home care
services will be provided, and reference to personal
attendant requirements, if applicable.
28)Delineates home care client rights, including the rights to
have the client's property treated with respect, voice
grievances free of reprisal, be informed and participate in
the planning of home care services, and confidentiality of the
client's personal information.
Home Care Aides
29)Requires, beginning January 1, 2013, that DSS require any
person hired as a home care aide to be certified within 90
days of the date of hire and that any person referred by an
employment agency who provides assistance with activities of
daily living be certified prior to any referral.
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30)Establishes training requirements for home care aide
certification, including requiring home care aides to complete
five paid hours of DSS approved training on job-related
topics, training curricula that are developed with input from
consumer and worker representatives, require instruction by
qualified instructors, and are approved by DSS.
31)Requires that DSS set a fee for a two-year certification to
be paid for by the home care aide.
32)Requires applicants for certification to submit to an
examination to determine if he or she is free of active
tuberculosis.
33)Prohibits, beginning January 1, 2014, an HCO from hiring an
individual as a home care aide unless the individual completes
an interview and meets specified job requirements, and
requires the individual to provide proof of certification.
34)Authorizes DSS to issue a temporary home care aide
certificate if it determines that required training is not
available in an applicant's county, and provides that required
entry-level and annual training may be completed through an
on-line training program.
35)Requires an applicant for employment as a home care aide to
consent to a background clearance, and prohibits a home care
aide employed on or after January 1, 2014, from providing home
care services until he or she passes the required background
clearance.
36)Requires a background clearance through DOJ, as described, on
individuals hired as home care aides, unless the individual
holds a valid, unexpired license or registration in a
health-related field that requires background checks; requires
DSS to request subsequent arrest notification service from
DOJ; and, requires DOJ to charge a fee to cover the actual
costs related to these activities.
37)Requires that DSS deny certification to an individual
convicted or incarcerated for conviction, within 10 years, for
child abuse, senior or dependent adult abuse, a violent or
serious felony as defined in the Penal Code, or a felony
offense for which the person is required to register as a sex
offender, unless the individual has obtained a certificate of
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rehabilitation, or the information or accusation has been
dismissed, pursuant to specified provisions of the Penal Code.
38)Requires DSS to provide notice, as specified, to the
applicant for certification by personal service or registered
mail if a license application is denied based on a prior
criminal conviction, and specifies procedures for requesting
and conducting an administrative hearing.
39)Provides that an applicant for certification convicted of a
disqualifying offense my seek from DSS a general exception to
the exclusion, and that DSS shall consider the same factors
applicable to the determination of whether to deny a license
to a prospective licensee based on a prior conviction.
Specifies notice requirements and administrative hearing
procedures in the event a request for a general exception is
denied.
40)Requires an employment agency to ensure that any person it
refers to provide home care services or assistance with
activities of daily living has been certified prior to
referral.
Revenues
41)Requires DSS to assess licensure and certification fees in
amounts sufficient to cover the costs of administering the
HCSA.
42)Prohibits the use of General Fund (GF) moneys for purposes of
funding activities under the HCSA unless specifically
transferred or appropriated by the Legislature.
43)Establishes the Home Care Organization and Home Care Aide
Fund within the State Treasury and requires that licensure and
certification funds, as well as fines and penalties, be
deposited into the Fund, which funds shall, upon appropriation
by the Legislature, be made available to DSS to administer the
HCSA.
44)Establishes a certification fee of $20 for the first year and
requirements for publishing fees for subsequent years.
45)Requires DSS to report on all costs for home care licensure
and home care aide certification activities, as specified, and
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to submit the report to the Legislature and make it available
to the public on its Internet Web site.
Enforcement and Penalties
46)Establishes requirements for notifying HCOs and employment
agencies of violations of the HCSA or rules promulgated under
the act, and authorizes DSS to impose a fine of up to $900 per
violation per day based on consideration of specified factors.
47)Requires DSS, in consultation with a working group of
affected stakeholders, to adopt regulations establishing
procedures for notices, correction plans, appeals, and
hearings related to enforcement of HCSA requirements.
48)Requires DSS to issue a notice of violation to a home care
aide found to be in violation of the HCSA, which shall specify
the nature of the violation, any action DSS may take as a
result of the violation, and include information about their
right to a hearing.
49)Requires collected penalties to be deposited into the Home
Care Organization and Home Care Aide Penalties Subaccount,
which is created within the existing State Health Facilities
Citation Penalties Account, and provides that, upon
appropriation by the Legislature, funds in the subaccount
shall be made available to DSS for purposes of enforcing the
HCSA.
EXISTING LAW :
1)Provides for the licensing and regulation of healthcare
facilities and home health agencies by the Department of
Public Health and provides for the licensing and regulation of
nonmedical residential and nonresidential community care
facilities by DSS.
2)Establishes the IHSS program, administered at the state level
by DSS, to provide personal services and home care for
eligible poor aged, blind and disabled individuals.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)One-time costs to DSS for initial program development,
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including adoption of regulations, policies, procedures,
and forms; approval of training curricula; development of
publicly accessible web registries; and, other one-time
expenses in the range of $1 million. At least $500,000
of this amount would be needed for start-up workload
prior to the collection of fees, and would be funded
through a General Fund (GF) loan.
2)Costs to the Department of Justice of approximately
$350,000 for the first year, and $200,000 ongoing
(special fund), associated with processing an increased
number of background checks.
3)Ongoing costs in the range of $8 million (special fund)
to DSS for licensure of home care organizations,
certification of home care aides, and maintenance of
online registries.
4)By requiring accreditation and licensure of home care
organizations and certification of home care aides, home
care organizations will face increases in the cost of
doing business. These costs will have a larger impact on
smaller home care organizations, since licensure and
accreditation fees are fixed costs regardless of size.
To the extent that these costs are passed on to clients,
this bill will likely cause some individuals to seek care
in the underground market. To the extent more caregivers
choose to provide care through the underground market and
fail to report income for tax purposes, there could be
some indirect negative impact on payroll tax revenues
compared to the status quo. Because regulatory costs are
small compared to total industry revenues, any impact is
expected to be minor.
Conversely, it is also possible that by increasing state
oversight and professional legitimacy of the industry
through licensure, this bill will increase the number of
individuals who would choose to seek care through
licensed home care organizations instead of the
underground market. This could have an indirect positive
impact on payroll tax revenues compared to the status
quo. The likelihood and magnitude of these potential
economic impacts is unknown.
5)Individuals seeking certification who are not employed by
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an organization will face costs estimated of $50 to $200
for training, background checks, tuberculosis screening,
and certification fees. Aides employed by an
organization will bear the cost of the tuberculosis test
and certification fee, which could exceed $50 total.
COMMENTS : According to the California Healthcare Foundation
(CHCF), the number of Californians age 65 and older-those most
likely to need extended care at home or in nursing homes-is
likely to more than triple between 2000 and 2050, with the group
age 85 and older experiencing the largest increase. California
Health Care Almanac: Long Term Care Facts and Figures, November
2009, page 3. CHCF also reports that the use of personal care
services in California increased 33.6% from 2003 to 2007,
surpassing nursing home admissions to become the most used
long-term care service in the state. (Id. at page 5.)
The increasing demand for home and personal care services in
California is occurring in a largely unregulated arena, where
HCOs and individual contractors compete with each other,
advertising their services through the Internet or in
newspapers. The Senate Office of Oversight and Outcomes
released a report on April 21, 2011, entitled Caregiver
Roulette: California Fails to Screen those who Care for the
Elderly at Home. According to the report, California is one of
the few states that does not regulate private in-home care
organizations. (Id. at 31.) The report concludes that "the
current landscape is creating risk for consumers that could be
alleviated by legislation, ranging from full-scale licensing to
narrower measures to help clients obtain and understand criminal
background checks and other records." The report also notes,
for example, that very few people who hire caregivers from
on-line services understand or take advantage of their legal
right to order a statewide criminal background check through the
DOJ.
The author of this bill notes that, under existing law, all
public community care agencies that provide skilled nursing
services to a person within that person's residence are required
to be licensed. "However, private entities that provide
non-medical, in-home personal care services are only required to
possess a business license." This bill, according to its
sponsor Service Employees International Union (SEIU) "allows
California to take small steps to begin to build a cohesive
system of care and oversight and follows on the heels of 28
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other states who have led the way in licensing this important
industry to provide increased consumer protection for seniors
and persons with disabilities."
Background on home care services
There are three essential means of providing care to seniors and
persons with disabilities in their own homes:
1)IHSS program . This is a publicly-funded program administered
by counties and DSS providing in-home care to low-income
elderly and disabled persons.
2)Home health agencies . These are organizations licensed by the
Department of Public Health (DPH) to provide both skilled
nursing and non-medical personal assistance services. Home
health aides assist clients with personal services according
to a plan of treatment prescribed by a physician.
3)Home care agencies . These organizations employ workers to
provide many of the same services provided by home health
aides, but do not perform any medical services such as
changing non-sterile dressings, taking vital signs, etc. The
services are more akin to those provided through the IHSS
program for low income individuals. No state or local agency
regulates and licenses these providers. It is this category
of care that is the subject of this bill.
The regulatory scheme
This bill creates a licensing and regulatory system directly
applicable to "home care organizations" (HCOs), which are
responsible for following rules governing their operations, and
which are responsible for assuring that home care aides meet
defined standards. Among other things, this bill requires
background checks for HCO owners. This bill also establishes a
certification requirement for all home care aides. Home care
aides would be subjected to a criminal background clearance, be
screened for tuberculosis, have access to a home care consultant
during their hours of service, and be required to complete
training on such subjects as basic safety precautions, emergency
procedures, infection, and other core and population-specific
competencies.
State implementation and enforcement responsibility is assigned
to DSS, which is given authority to adopt rules and regulations
to implement the act, establish procedures to investigate and
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resolve complaints, and maintain a registry on its Internet Web
site with pertinent information on all certified home care
aides.
This bill has been substantially amended throughout the
legislative process to address many of the concerns raised by
stakeholders and to address fiscal issues. Even among opponents
of this bill, licensure of HCOs has had broad support, including
from the California Association for Health Services at Home
(CAHSAH), a statewide home care association, and among the
entities that provide home care services. Opposition has
largely focused on three issues: The certification requirement
for home care aides, an accreditation requirement (in addition
to licensing) for HCOs, and the agency charged with
administering the HCSA-i.e., DPH under prior versions of this
bill. As amended, this bill addresses two of these concerns:
The accreditation requirement has been dropped, and the
administrative agency has been changed from DPH to DSS. This
bill has also been amended to address concerns of employment
agencies, which refer but do not actually employ individuals who
provide home care services or assist with activities of daily
living. Those agencies have been exempted from the licensing
requirements of this bill. Employment agencies would still be
required to ensure that the individuals they place or refer meet
this bill's home care aide certification requirements, however.
This bill has also been amended to address privacy concerns of
home care aides with respect to the Internet registry maintained
by DSS.
This bill still requires certification of home care aides. The
certification requirement, opponents argue, would create a major
bottleneck in the ability of HCOs to meet the needs of a rapidly
growing senior population. In response, the author and sponsor
of this bill argue that certification requirements-including DOJ
background checks, tuberculosis clearance, and training-can be
accomplished quickly. They note that there are already entities
around the state that offer in-person or on-line training. This
bill would not require that home care aides be certified until
January 2013, giving sufficient time for current workers to meet
certification requirements.
Related bill
AB 899 (Yamada) of 2011, also introduced this year, is similar
to this bill. Sponsored by CAHSAH, AB 899 also creates the
"Home Care Services Act of 2011 and requires DSS to license and
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regulate home care organizations. AB 899 does not require the
certification of employees, as required in this bill. AB 899
was held on the Assembly Appropriations Committee Suspense File
in May.
Prior legislation
AB 853 (Jones) of 2007 was the predecessor to AB 899 and would
similarly have provided for the licensing and regulation of home
care organizations. AB 853 was held on the Assembly
Appropriations Committee Suspense File.
Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089
FN: 0004788