Amended in Assembly April 23, 2013

Amended in Assembly April 8, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 322

Introduced by Assembly Member Yamada

(Coauthor: Senator Correa)

February 12, 2013

An act to add Chapter 13 (commencing with Section 1796) to Division 2 of the Health and Safety Code, relating to home care services, and making an appropriation therefor.

LEGISLATIVE COUNSEL’S DIGEST

AB 322, as amended, Yamada. Home Care Services Act of 2013.

Existing law provides for the licensing and regulation of various community care facilities by the State Department of Social Services.

This bill would enact the Home Care Services Act of 2013 and would provide for the licensure and regulation of home care organizations, as defined, by the State Department of Social Services. The bill would establish home care organizations as being recognized in the health care industry. The bill would prohibit, after January 1, 2016, an individual or entity from arranging for the provision of home care services, as defined, by a home care aide without first obtaining a license and would authorize a district attorney, the Attorney General, or the department to impose a civil penalty on an individual or entity that operates a home care organization without a license. The bill would also impose various licensure requirements on a home care organization. The bill would require a home care organization to provide a client with specified information before arranging for the provision of home care services 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 a written notice of certain enumerated rights.

This bill would 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 act. The bill, in addition, would prescribe enforcement procedures and penalties for violations of the act.

Vote: ²⁄₃. 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) The Employment Development Department has identified
home care services as one of the fastest growing fields.

(c) 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.

(d) 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 a matter of concern because, according to prosecutors, for
every reported incident of abuse or neglect, four others go
unreported.

(e) 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 client and the referring organization at risk.

SEC. 2.  

Chapter 13 (commencing with Section 1796) is added
to Division 2 of the Health and Safety Code, to read:

 

Chapter  13. Home Care Services Act of 2013

 

Article 1.  General Provisions

 

1796.  

This chapter shall be known and may be cited as the
Home Care Services Act of 2013.

1796.1.  

The State Department of Social Services shall
administer and enforce this chapter.

1796.2.  

For purposes of this chapter, the following definitions
shall apply:

(a) “Client” means an individual who receives home care
services.

(b) “Department” means the State Department of Social
Services.

(c) (1) “Home care aide” means an individual who is paid to
provide home care services to a client in the client’s residence,
and is synonymous with “caregiver,” “custodial care,” “personal
begin delete care end delete attendant,” “homemaker,” and “companion.” In addition,
“home care aide” includes an individual who qualifies as a personal
attendant, as defined in Industry Wage Order 15-2001, issued by
the Industrial Welfare Commission, and provides home care
services.

(2) A “home care aide” does not include a person who is
employed by, or contracts with, an organization vendored by or
contracted through a regional center of the State Department of
Developmental Services pursuant to the Lanterman Developmental
Disabilities Services Act (Division 4.5 (commencing with Section
4500) of the Welfare and Institutions Code) or the California Early
Intervention Services Act (Title 14 (commencing with Section
95000) of the Government Code) to provide services and supports
for persons with developmental disabilities, as defined in Section
4512 of the Welfare and Institutions Code, when funding for those
services is provided through the State Department of
Developmental Services.

(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.
Home care organization shall not include any of the following:

(1) A home health agency licensed under Chapter 8
(commencing with Section 1725).

(2) A hospice licensed under Chapter 8.5 (commencing with
Section 1745).

(3) A health facility licensed under Chapter 2 (commencing
with Section 1250).

(4) A county providing in-home supportive services pursuant
to Article 7 (commencing with Section 12300) of Chapter 3 of
Part 3 of Division 9 of the Welfare and Institutions Code, without
regard to whether the county provides these services as a public
authority or through a nonprofit consortium established pursuant
to Section 12301.6 of the Welfare and Institutions Code.

(5) An employment agency, as defined under Chapter 1
(commencing with Section 1812.500) of Title 2.91 of Part 4 of
Division 3 of the Civil Code.

(6) A nurses’ registry, as defined under Chapter 7 (commencing
with Section 1812.524) of Title 2.91 of Part 4 of Division 3 of the
Civil Code.

(e) (1) “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, 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.

(2) Home care services shall not include any of the following:

(A) Services authorized to be provided by a licensed home
health agency under Chapter 8 (commencing with Section 1725).

(B) Services authorized to be provided by a licensed hospice
pursuant to Chapter 8.5 (commencing with Section 1745).

(C) Services authorized to be provided by a licensed health
facility pursuant to Chapter 2 (commencing with Section 1250) of
Division 2.

(D) 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.

(E) Services provided by organizations that provide only
housekeeping services.

(F) Services authorized to be provided by a licensed residential
care facility for the elderly pursuant to Chapter 3.2 (commencing
with Section 1569).

(G) Services provided by an organization vendored by or
contracted through a regional center or the State Department of
Developmental Services pursuant to the Lanterman Developmental
Disabilities Services Act (Division 4.5 (commencing with Section
4500) of the Welfare and Institutions Code) or the California Early
Intervention Services Act (Title 14 (commencing with Section
95000) of the Government Code) to provide services and supports
for persons with developmental disabilities, as defined in Section
4512 of the Welfare and Institutions Code, when funding for those
services is provided through the State Department of
Developmental Services.

(f) “Residence” means a temporary or permanent location where
a client receives home care services.

1796.3.  

Nothing in this chapter shall be construed to prohibit
an individual from employing begin insert , contracting with, or hiring end insert a home
care aide without the assistance of a home care organization.

1796.4.  

This chapter shall establish home care organizations
as being recognized in the health care industry.

 

Article 2.  Licensure

 

1796.5.  

(a) Commencing January 1, 2016, an individual,
partnership, corporation, limited liability company, joint venture,
association, or other entity shall not 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) Upon discovering that an individual or entity is in violation
of this chapter, the department shall send a written notice of
noncompliance to the individual or entity and to a district attorney
or the Attorney General. Upon receiving this notice, a district
attorney or the Attorney General 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. Upon receipt of a cease and desist order, the individual
or entity in violation shall be responsible for the safe and timely
transfer of clients to a licensed provider of similar services. If the
department assumes responsibility for the safe and timely transfer
of clients to a licensed provider of similar services, then the
individual or entity in violation is responsible for all costs incurred
by the department in association with the transfer. The individual
or entity in violation shall in no way benefit, financially or
otherwise, through the transfer process. If the individual or entity
fails to comply with the cease and desist notice, the Attorney
General or a district attorney may petition the court for the issuance
of an injunction restraining the individual or entity from continuing
the violation of this chapter.

(2) Impose a civil penalty of four hundred dollars ($400) per
day for each calendar day of violation.

(3) Bring an action against the individual or entity under Chapter
5 (commencing with Section 17200) of Part 2 of Division 7 of the
Business and Professions Code.

begin insert

begin insert 1796.6. end insert   

A duly authorized officer, employee, or agent of the
department may, upon presentation of proper identification, enter
a home care organization at any time, with or without advance
notice, to secure compliance with, or to prevent a violation of, any
provision of this chapter.

end insert

1796.7.  

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 all 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 a physical location in California.

(b) Obtain authorization from the Secretary of State to conduct
business in California.

(c) Comply with Section 1796.21.

1796.8.  

No private or public organization, excluding any county
providing in-home supportive services pursuant to Article 7
(commencing with Section 12300) of Chapter 3 of Part 3 of
Division 9 of the Welfare and Institutions Code, licensed home
health agency pursuant to Chapter 8 (commencing with Section
1725), or licensed hospice pursuant to Chapter 8.5 (commencing
with Section 1745), shall do any of the following unless it is
licensed under this chapter:

(a) Represent itself to be a home care organization by its name
or advertisement, soliciting, or any other presentments to the public,
or in the context of services within the scope of this chapter imply
that it is licensed to provide those services or to make any reference
to employee bonding in relation to those services.

(b) Use the words “home care organization,” “home care,”
“home-care,” “homecare,” or “in-home care,” or any combination
of those terms, within its name.

1796.9.  

The enactment of this chapter is an exercise of the
general authority 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.

1796.11.  

In order to administer this chapter, the department
shall do all of the following:

(a) Adopt rules and regulations to implement and administer
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.

1796.13.  

(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 1796.39.

(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) The owner of the organization passes a background clearance
pursuant to Section 1796.17.

(6) Complies with the requirements of this chapter.

(b) The term of a license issued under this section is two years.
The license may be renewed upon application to the department
and payment of the renewal fee prescribed by the department
pursuant to Section 1796.39.

1796.15.  

At least 60 days before the expiration of a license,
the department shall provide the licensee, through electronic mail
or other means, at the latest contact 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 shall result in the expiration of
the license.

1796.17.  

(a) In order for a home care organization to obtain a
license, the following individual or individuals shall consent to
the background clearance described in subdivision (b) of Section
1796.33:

(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 5-percent or greater interest in that entity.

(b) If the background clearance conducted pursuant to
subdivision (a) discloses a conviction for a crime that is
substantially related to the qualifications, functions, or duties of
operating a home care organization, the application for a license
may be denied, except that a license shall not be denied pursuant
to this subdivision if the individual has obtained a certificate of
rehabilitation pursuant to Chapter 3.5 (commencing with Section
4852.01) of Title 6 of Part 3 of the Penal Code or if the information
or accusation against the individual has been dismissed pursuant
to Section 1203.4 of the Penal Code.

(c) If the department denies an application for a license because
of a conviction for a crime as described in subdivision (b) or if the
department denies a license renewal based upon a subsequent
conviction for a crime as described in subdivision (b), the
department shall notify the individual convicted of that crime of
this determination by either personal service or registered mail,
and this notice shall include all of the following:

(1) A statement of the department’s reasons for the denial. This
statement shall evaluate any evidence of rehabilitation submitted
by the individual.

(2) A copy of the individual’s criminal offender record
information search response. The department shall provide this
information in a manner that protects the confidentiality and
privacy of the criminal offender record information search
response.

(A) The state criminal history record shall not be modified or
altered from its form or content as provided by the Department of
Justice.

(B) The department shall record the date the response was
provided by the Department of Justice and the date the department
provided the copy of the response to the individual.

(C) The criminal offender record information search response
shall not be made available by the department to any individual
other than an individual convicted of a crime that is the basis for
a denial by the department pursuant to this section.

(d) (1) An individual with a conviction that results in the denial
of a license pursuant to this section may request an administrative
hearing by submitting a written request to the department within
15 business days of receipt of the written notice pursuant to
subdivision (c).

(2) The department shall hold an administrative hearing upon
receipt of the written request from the individual pursuant to
paragraph (1). The administrative hearing shall be consistent with
the procedures specified in Section 100171, except where those
procedures are inconsistent with this section. The administrative
hearing shall be conducted by a hearing officer or administrative
law judge designated by the director.

(3) The hearing officer or administrative law judge shall make
a written decision that shall be sent by certified mail to the
individual who requested the hearing.

 

Article 3.  Complaints, Inspections, and Investigations

 

1796.19.  

(a) The department shall review and, if it determines
necessary, investigate complaints filed against a home care
organization.

(b) An investigation or inspection 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

 

1796.21.  

(a) A home care organization shall do all of the
following:

(1) Post its license in its place of business in a conspicuous
location, visible both to clients and to its home care aides.

(2) Maintain a physical address.

(3) Have policies for client protection and client rights.

(4) Have a written agreement with clients that includes a
specification of fees charged.

(5) Classify all workers engaged in the direct provision of home
care services as employees of the home care organization.

(6) Maintain valid general and professional liability insurance
policies in the amount of at least one million dollars ($1,000,000)
per occurrence and three million dollars ($3,000,000) in the
aggregate.

(7) Maintain a valid workers’ compensation policy covering its
home care aides.

(8) Maintain an employee dishonesty bond, including third-party
coverage, with a minimum limit of ten thousand dollars ($10,000).

(9) Comply with the regulations adopted by the department
pursuant to this chapter and laws adopted regarding the provision
of home care services.

(b) Nothing in this chapter shall prohibit a licensed home care
organization from contracting with another licensed home care
organization for the provision of services.

1796.23.  

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 by conducting an annual
assessment of the performance and effectiveness of each home
care aide. The evaluation shall include, if client consent is obtained,
at least one observation of the aide providing home care services
in the residence of a 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.

(d) Require a home care aide, while providing home care
services, to carry an organization-approved identification card.

(e) Require home care aides to demonstrate that they are free
of active tuberculosis pursuant to Section 1796.35.

(f) Prohibit home care aides from accepting money or property
from a client without written permission from the home care
organization.

(g) Oversee the care of the client, including supervisory visits
and updates to the plan of care as necessary.

begin insert

(h) Nothing in this section shall be construed to prohibit the
department from inspecting or investigating a complaint filed by
a home care aide, an employee of a home care organization, or a
recipient or a relative of a recipient of home care services pursuant
to Article 3 (commencing with Section 1796.19).

end insert

 

Article 5.  Client Rights

 

1796.25.  

(a) Clients of home care organizations are entitled
to 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 be informed of the hours, services, and costs
that will be provided in the client’s home.

(5) The right to be informed of the client records policies and
have the confidentiality of the client’s personal information
protected.

(b) Within seven days of the start of the provision of home care
services to a client, a home care organization shall provide a written
notice to the client that the client has all of the rights enumerated
in subdivision (a).

(c) A home care organization shall maintain written
documentation showing that it has complied with subdivision (b).

(d) 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 the rights listed in this
section.

(e) A home care organization shall protect, and promote the
exercise of, the rights listed in this section.

1796.27.  

(a) Home care clients are entitled to 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) 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 rights enumerated
in subdivision (a).

(c) A home care organization shall maintain written
documentation showing that it has complied with subdivision (b).

(d) 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.

(e) A home care organization shall protect, and promote the
exercise of, the rights listed in this section.

 

Article 6.  Home Care Aides

 

begin delete

1796.31.  

A home care organization shall, by January 1, 2015,
ensure that home care aides who were hired before January 1,
2015, meet both of the following requirements:

(a) Demonstrate that he or she has sufficient language skills to
communicate with the client.

(b) Demonstrate basic competency in the skills required to meet
the needs of the client.

end delete begin insert

begin insert 1796.31. end insert   

(a) On and after January 1, 2015, a home care
organization shall not hire an individual as a home care aide
unless the individual demonstrates that he or she has language
skills that are sufficient to understand instructions and
communicate with a client.

(b) On and after January 1, 2015, a home care organization
that hires an individual shall ensure that the individual, within the
first 30 days of employment, demonstrates basic competency in
all of the following areas:

(1) Health precautions, including, but not limited to, infection
control.

(2) Client rights and safety.

(3) The home care organization’s emergency procedures.

(4) How to provide for and respond to a client’s daily living
skills.

(5) How to detect, prevent, and report abuse and neglect.

(6) How to assist a client with personal hygiene and other home
care services.

(7) If the home care organization provides transportation
services, how to safely transport a client.

end insert

1796.33.  

(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, as a condition of the license
or registration, a background check or a criminal history record
check as specified in subdivision (b).

(b) The background clearance shall consist of a criminal history
record check conducted by the Department of Justice and
administered by the State Department of Social Services.

(c) The organization shall deny or terminate, as applicable, the
employment of an individual if the background check required by
subdivision (b) discloses that it has been less than 10 years since
the date of a conviction for, or the date of incarceration following
a conviction for, any of the following:

(1) Fraud against a government health care or supportive
services program, including, but not limited to, Medicare,
Medicaid, or services provided under Title V, Title XX, or Title
XXI of the federal Social Security Act, or a violation of subdivision
(a) of Section 273a of the Penal Code, Section 368 of the Penal
Code, or similar violations in another jurisdiction.

(2) A violent or serious felony, as specified in subdivision (c)
of Section 667.5 of the Penal Code or subdivision (c) of Section
1192.7 of the Penal Code.

(3) A felony offense for which a person is required to register
pursuant to subdivision (c) of Section 290 of the Penal Code. For
purposes of this paragraph, the 10-year time period specified in
this section shall commence with the date of conviction for, or the
date of incarceration following a conviction for, the underlying
offense and not the date of registration.

(d) Notwithstanding subdivision (c), the organization shall not
deny or terminate the employment of any individual pursuant to
this section if the individual has obtained a certificate of
rehabilitation pursuant to Chapter 3.5 (commencing with Section
4852.01) of Title 6 of Part 3 of the Penal Code or the information
or accusation against the individual has been dismissed pursuant
to Section 1203.4 of the Penal Code.

(e) Notwithstanding subdivision (c), an individual who has been
convicted of an offense identified in subdivision (c) may seek from
the department a general exception to the exclusion provided for
in this section. In determining whether to grant a general exception,
the department shall consider as evidence of good character and
rehabilitation the following factors:

(1) The nature and seriousness of the conviction under
consideration and its relationship to the individual’s employment
duties and responsibilities.

(2) Activities since conviction that would indicate changed
behavior, including, but not limited to, employment, participation
in therapy, or education.

(3) The time that has elapsed since the commission of the crime
and the number of offenses.

(4) The extent to which the individual has complied with any
terms of parole, probation, restitution, or any other sanction
lawfully imposed against the individual.

(5) Any rehabilitation evidence submitted by the individual,
including, but not limited to, character references.

(6) Employment history and current employer recommendations.

(7) Circumstances surrounding the commission of the crime
that would demonstrate the unlikelihood of repetition.

(f) Upon determination to deny a request for exception, the
department shall notify the individual of this determination by
either personal service or registered mail, and this notice shall
include all of the following:

(1) A statement of the department’s reasons for the denial. This
statement shall evaluate any evidence of rehabilitation submitted
by the individual, and specifically address any evidence submitted
relating to the factors considered in subdivision (e).

(2) A copy of the individual’s criminal offender record
information search response. The department shall provide this
information in a manner that protects the confidentiality and
privacy of the criminal offender record information search
response.

(A) The state criminal history record shall not be modified or
altered from its form or content as provided by the Department of
Justice.

(B) The department shall record the date the response was
provided by the Department of Justice and the date the department
provided the copy of the response to the individual.

(C) The criminal offender record information search response
shall not be made available by the department to any individual
other than the applicant.

(g) (1) An individual whose request for an exception has been
denied may request an administrative hearing by submitting a
written request to the department within 15 business days of receipt
of the written notice pursuant to subdivision (f).

(2) The department shall hold an administrative hearing upon
receipt of the written request from the individual pursuant to
paragraph (1). The administrative hearing shall be consistent with
the procedures specified in Section 100171, except where those
procedures are inconsistent with this section. The administrative
hearing shall be conducted by a hearing officer or administrative
law judge designated by the director.

(3) The hearing officer or administrative law judge shall make
a written decision that shall be sent by certified mail to the
individual who requested the hearing.

(h) The organization shall complete the background clearance
specified in subdivision (b) on home care aides whose employment
began before January 1, 2014, within begin delete two years end delete begin insert six months end insert of the
effective date of this section.

(i) A home care aide hired on or after January 1, 2014, shall not
be permitted to provide home care services until he or she passes
the background clearance or has been granted a general exception
by the department pursuant to this section.

1796.35.  

(a) An individual hired as a home care aide on or
after January 1, 2014, 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 home care aide whose employment with a home care
organization began before January 1, 2014, shall, on or before
March 1, 2014, 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 shall be 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.

 

Article 7.  Revenues

 

1796.37.  

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.

1796.39.  

The department shall assess 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.
The department shall consult with the state home care industry
association in developing the fee methodology.

 

Article 8.  Enforcement and Penalties

 

1796.40.  

(a) A home care organization operating in violation
of this chapter or any rule adopted hereunder may be subject to
the penalties or fines levied or licensure action taken by the
department as specified in this section.

(b) When the department determines that a home care
organization is in violation of this chapter or any regulations
adopted hereunder, a notice of violation shall be served upon the
licensee. Each notice of violation shall be prepared in writing and
shall specify the nature of the violation and the statutory provision
or regulation alleged to have been violated. The notice shall inform
the licensee of any action the department may take under this
chapter, including the requirement of an agency plan of correction,
assessment of a penalty, or action to suspend, revoke, or deny
renewal of the license. The director or his or her designee shall
also inform the licensee of rights to a hearing under this chapter.

(c) The department may impose an administrative fine of up to
four hundred dollars ($400) per day commencing on the date the
violation was identified and ending on the date the violation is
corrected, or action is taken to suspend, revoke, or deny renewal
of the license, whichever comes first.

(d) In determining the penalty or licensure action, the director
shall consider all of the following factors:

(1) The gravity of the violation, including the probability that
death or serious physical or mental harm to a client will result or
has resulted, the severity of the actual or potential harm, and the
extent to which the provisions of the applicable statutes or
regulations were violated.

(2) The reasonable diligence exercised by the licensee and
efforts to correct violations.

(3) Any previous violations committed by the licensee.

(4) The financial benefit to the home care organization of
committing or continuing the violation.

(e) The department shall adopt regulations establishing
procedures for begin insert the filing and investigation of complaints, end insert notices,
correction plans, appeals, and hearings. In developing the
procedures, the department shall convene and consult with a
working group of affected stakeholders.