BILL ANALYSIS Ó
AB 322
Page A
Date of Hearing: April 16, 2013
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Mark Stone, Chair
AB 322 (Yamada) - As Amended: April 8, 2013
SUBJECT : Home Care Services Act of 2013
SUMMARY : Establishes the Home Care Services Act of 2013 (HCSA)
to license and regulate home care organizations providing
services for the elderly, frail and persons with disabilities.
Specifically, this bill :
1)Makes Legislative findings and declarations, as follows:
a) Seniors, individuals with disabilities, and the frail
frequently need part-time to full-time assistance from a
caregiver in order to live independently;
b) The Employment Development Department has identified
home care services as one of the fastest growing fields;
c) Most people hiring home care organizations incorrectly
believe that home care aides are thoroughly screened and
trained; however, the only requirement to provide
nonmedical home care services in an individual's home is a
business license;
d) The incidence of abuse and neglect by home care aides is
alarming, in part because for every incident receiving
public exposure, four others go unreported; and,
e) Discharge planners maintaining referral lists of home
care aides and home care organizations lack information
about the individuals or organizations, placing the
individuals and referring organizations at risk.
2)Establishes the Home Care Services Act of 2013, and requires
the State Department of Social Services (DSS) to administer
and enforce the law.
3)Defines "home care aide" to mean an individual providing home
care services to a client in the client's residence, and
includes a person who is an individual who qualifies as a
personal attendant as defined by the Industrial Welfare
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Commission.
4)Defines "home care organization" to mean an individual,
partnership, corporation, joint venture 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 home care services provided by a licensed home health
agency, a licensed hospice, a licensed health facility, an
organization providing only housekeeping, or a county
providing in-home supportive services pursuant to the In-Home
Supportive Services (IHSS) program.
5)Prohibits any individual, partnership, corporation,
association or other entity from arranging for the provision
of home care services by a home care aide to a client without
first obtaining a license pursuant to the act, violation of
which subjects the individual or entity to a civil penalty of
up to $400 per day.
6)Requires DSS to send written notice of noncompliance to the
Attorney General or district attorney, who may as a result
issue a cease and desist order, impose the civil penalty or
bring an action under the Unfair Business Practices Act.
7)Prohibits any private or public organization not licensed
under the HCSA, with the exception of a county providing
services under the IHSS program, from representing itself to
be a home care organization or using any variant of the words
"home care" within its name.
8)Requires DSS to adopt rules and regulations to implement the
act, establish procedures for the receipt, investigation and
resolution of complaints, and make available on the
department's Web site identifying information about each home
care organization.
9)Requires DSS to issue a license for a period of two years,
subject to renewal, to a home care organization meeting the
following prescribed requirements:
a) Submits an application, pays a licensure fee, submits
proof of liability insurance in specified amounts, and
submits proof of a valid workers' compensation policy
covering its home care aides; and
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b) Passes a background clearance and complies with other
requirements of the act.
10)Requires denial of a license if the background check of the
owner of a home care organization "discloses a conviction for
a crime that is substantially related to the qualifications,
functions, or duties of operating a home care organization"
unless the prospective licensee "has obtained a certificate of
rehabilitation" as specified, or the information or accusation
has been dismissed, as specified.
11)Requires DSS to investigate complaints filed against home
care organizations, and establishes procedures for DSS
verification through periodic inspections scheduled in advance
that a home care organization meets the requirements of the
HCSA.
12)Establishes operating requirements for home care
organizations, including:
a) Posting of its license in a conspicuous location, and
adoption of policies regarding advance directives and
receipt and disbursement of clients' funds; and
b) Maintaining valid workers' compensation coverage and an
employee dishonesty bond, and complying with regulations
adopted by DSS to implement the HCSA.
13)Establishes the following requirements for home care
organizations with respect to home care aides:
a) Investigate complaints by clients or family members
against home care aides;
b) Evaluate home care aides through annual assessments,
including, if client consent is obtained, at least one
observation of the aide providing home care services in the
client's residence;
c) Ensure that home care aides, while providing services to
a client, have access at all times to a supervisor with the
home care organization;
d) Require that home care aides carry an approved
identification card or badge;
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e) Demonstrate that home care aides are free of
tuberculosis;
f) Prohibit a home care aide from accepting money or
property from a client without written permission from the
home care organization; and,
g) Oversee client care, including supervisory visits and
updates to the plan of care as necessary.
14)Establishes requirements for home care organizations to
protect clients' rights, as follows:
a) To have the client's property treated with respect;
b) 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;
c) To be informed of, and to participate in the planning of
the hours, services, and costs that will be provided in the
client's home;
d) To be informed of the client records policies and have
the confidentiality of the client's personal information
protected; and
e) Requires a home care organization to provide within
seven days of the commencement of services a written notice
to the client of these rights.
15)States home care clients' entitlement to, and requires that
the home care organization provide a written notice to the
client of, the following enumerated rights:
a) To have client's property treated with respect;
b) To voice grievances free from reprisal regarding a home
care service or violation of rights;
c) To be informed of and participate in the planning of the
client's services; and
d) To confidentiality of the client's personal information.
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16)Confers the client's rights to the client's legal
representative if the client lacks the capacity to understand
the rights, as determined by a court of competent jurisdiction
or the client's physician, unless the physician's opinion is
controverted by the client or client's legal representative.
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17)Requires home care organizations to protect and promote the
exercise of the foregoing clients' rights.
18)Establishes requirements and procedures regarding the
employment of home care aides by home care organizations,
including:
a) Background clearances of home care aides, unless the
individual holds a valid, unexpired license or registration
in a health-related field that requires a background check
as a condition of licensure or registration;
i) A background check for home care aides employed
prior to the enactment of this act must be conducted
within two years its effective date.
ii) No home care aide hired after the effective date of
this act may be permitted to provide home care services
until he or she passes the background clearance or has
been granted a general exception by DSS, as specified.
b) Prohibition on hiring or retaining a home care aide if
the background clearance discloses a conviction for a
violation of any of a specified list of Penal Code
provisions;
c) Prohibition of a home care organization from denying or
terminating employment to a home care aide if the aide has
obtained a certificate of rehabilitation, as specified, or
the information or the accusation against the aide has been
dismissed, as specified;
d) A process by which a home care aide may appeal multiple
times to DSS for a general exception if they do not pass
the criminal background clearance; and
e) Submission to an examination to determine that the
individual is free of active tuberculosis within 14 days
after employment, and subsequent submission to an
examination at least once every two years, the costs of
which shall be paid by the home care aide.
19)Establishes in the State Treasury the Home Care Organization
Fund, from which all money is continuously appropriated to DSS
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for the purpose of carrying out the act.
20)Requires DSS to 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 the
act, which may be periodically adjusted for inflation, to be
deposited in the Home Care Organization Fund.
21)Provides for penalties, fines or licensure action by DSS for
violation of the HCSA, as follows:
a) Requires that, when DSS determines that a violation has
occurred, a written notice of violation be served on the
licensee specifying the nature of the violation and the
statutory or regulatory provision alleged to have been
violated, informing the licensee of DSS' proposed action,
which may include a plan of correction, assessment of a
penalty, or action to suspend, revoke or deny renewal of
the license;
b) Requires that DSS inform the licensee of the right to a
hearing;
c) Authorizes DSS to impose an administrative fine of up to
$400 per day; and,
d) Provides that, in determining the penalty or licensing
action, DSS shall consider:
i) The gravity of the violation, the severity of the
actual or potential harm, and the extent to which the
applicable statutes or regulations were violated;
ii) The reasonable diligence exercised by the licensee
and efforts to correct the violation;
iii) Any prior violations committed by the licensee; and,
iv) The financial benefit to the home care organization
of committing or continuing the violation.
e) Requires DSS, in consultation with a working group of
affected stakeholders, to adopt regulations governing the
notice, correction plan, appeal, and hearing processes
under the HCSA.
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EXISTING LAW :
1)Provides for the licensing and regulation of various
nonmedical residential and nonresidential community care
facilities by DSS and provides for the licensing and
regulation of healthcare facilities by the Department of
Public Health (DPH).
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.
3)Establishes the California Community Care Facilities Act
(CCFA) to provide a comprehensive statewide service system of
quality community care for people who have a mental illness, a
developmental or physical disability, and children and adults
who require care or services by a facility or organization.
4)Establishes the California Residential Care Facilities for the
Elderly (RCFE) Act, which requires facilities that provide
personal care and supervision, protective supervision or
health related services for persons 60 years of age or older
who voluntarily choose to reside in that facility to be
licensed by DSS.
5)Prohibits any person, firm, partnership, association,
corporation or public agency from establishing, operating,
managing, conducting or maintaining a CCF or a RCFE without a
valid licensed provided by DSS.
6)Provides that any person who violates the CCFA or the RCFE Act
shall be guilty of a misdemeanor and upon conviction shall be
fined no more than $1,000, imprisoned in county jail for up to
one year, or both.
FISCAL EFFECT : Unknown
BACKGROUND:
Medical and nonmedical home care services
California law currently provides for two types of in-home care
for the elderly, disabled, and people in need of home-based
care; In-Home Supportive Services (IHSS) and Home Health
Agencies (HHA).
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Licensed by to the California Department of Public Health (DPH),
HHAs provide an array of medical and non-medical care and
services, including skilled nursing services, based upon a plan
of treatment prescribed by the patient's physician or surgeon.
These services can range in types of care from regular
day-to-day home care services to significant medical care,
including the administration of intravenous medications and
other services that would otherwise be provided in a skilled
nursing facility (SNF). In order to provide "home health aide
services," home health aides must undergo specified training and
be certified by DPH. HHAs help to provide patients with the
opportunity to live as comfortably as possible at home while
receiving necessary medical care as prescribed by their
physician rather than in a medical facility.
IHSS is a county operated service, in coordination with DSS,
which provides in-home care to low-income elderly or disabled
persons. Although similar in the provision of non-medical care,
IHSS differs from HHAs in that it provides support services and
some "paramedical services" but often not significant, SNF-level
medical services in the home. The focus of IHSS is to provide
services that make it possible for a patient (or recipient) to
live independently at home while receiving basic personal care
assistance from an IHSS provider, in addition to help with
administering medications, assistance with prosthetic devices,
and bowel, bladder and menstrual care.
Current licensing standards for community care providers
DSS Community Care Licensing Division (CCLD) is responsible for
carrying out the duties established by the California Community
Care Facilities Act and other related licensing acts in the
Health and Safety Code. It is their responsibility to:
Process license applications;
Provide monitoring, oversight and technical assistance;
Conduct facility and organizational visits;
Pursue investigations of complaints; and
Enforce penalties, fines and administrative legal action
Prior to 2003, CCLD was required to visit most licensed
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organizations once per year and family child care homes once
every three years. However, due to the state's ongoing budget
deficit, the state eliminated these requirements in the 2003-04
budget and limited visits to ten percent of facilities based
upon their poor performance history.
For those residential facilities not subject to annual
inspections, CCLD is currently required to conduct comprehensive
compliance inspections of a 30% random sample of facilities each
year, with each facility required to be visited as least once
every 5 years. There are additional inspection requirements for
new facilities or when changes occur to the license, which
includes pre-licensing and post-licensing inspections help to
ensure that a new licensee starts off correctly.
Importance of unannounced licensing visits
Unannounced licensing visits are of fundamental importance in
protecting the health and safety of children and adults
receiving care through facility or home-based care. They ensure
that basic health and safety requirements are being met and also
provide opportunities for increased technical assistance to
programs, enhanced information sharing, the development of best
practices, and ultimately lead to an improvement in the quality
of life for clients under care.
Numerous studies have also been conducted, which document a
connection between increased licensing visits with a decrease in
accidents requiring medical attention<1> and greater provider
compliance with health and safety standards.<2>
Additionally, regular and frequent unannounced inspection visits
allow for state and local agencies to provide relevant and
up-to-date information to the public on the quality of care
being provided to consumers. Further, DSS also stated, in a
2010-11 Spring Finance Letter, that "regular and frequent
---------------------------
<1> Fiene, R. (2002). 13 indicators of quality child care:
Research update. U.S. Department of Health and Human Services,
Office of Assistant Secretary for Planning and Evaluation, at
http://aspe.hhs.gov/hsp/ccquality-ind02/
<2> Koch Consulting. (2005). Report on effective legal
proceedings to ensure provider compliance: Prepared for the
State of Washington Department of Social and Health Services.
http://www.naralicensing.drivehq.com/publications/archives/nara/E
ffective_Legal_Proceedings.pdf
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inspections of facilities improve client health and safety as
evidenced by reductions in the percentage of the more serious
imminent risk to total citations." Specifically, "more annual
inspections equates to better quality of care" and "more annual
inspections equates to a smaller risk to the health and safety
of clients."
COMMENTS :
This measure seeks to regulate a third home care industry that
has existed for many years, but has begun to increase as the
nation's elderly population expands and the demand for in-home
care increases to allow individuals to live comfortably at home
with the assistance of a day-to-day home care provider. Home
care providers provide basic day-to-day non-medical living
assistance, such as cooking, cleaning, dressing, feeding, and
other regular daily needs. However, unlike their IHSS and HHA
counterparts, there are no requirements in current law that
require home care aides to have minimum levels of training, to
undergo a criminal background check, or comply with basic
standards of service.
Due to the lack of a regulatory structure and related
enforcement, there is no framework or definition for what is
considered a home care aide. Although the title "home care
aide" implies a level of expertise and integrity associated with
a minimum level of care, any person may represent themselves as
a home care aide. In some instances, individuals may solicit
their services through notifications posted online on websites
such as Craigslist or in newspaper classified ads. This can
place consumers who are in need of day-to-day living assistance
services in the home in potentially vulnerable situations, as
there are little to no existing legal requirements and
protections established. In some respects, it is not
unreasonable to associate home care aides unaffiliated with
reputable or established organizations or who operate as
independent contractors as part of an underground home care
industry whereby the public rests their faith in the hope that
the elderly and disabled are receiving adequate and beneficial
care in the home.
Regarding established agencies and associations that currently
employ home care aides, there is an expectation and desire to
develop a regulatory framework in anticipation of public demand
for greater standards and accountability. However, it is
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unclear as to whether and how those home care aides should be
identified and subsequently be required to register or become
licensed as a home care aide. AB 322, as proposed, would only
impact the portion of the home care industry associated with
home care organizations and the home care aides they employ, but
not home care aides who operate as private contractors or those
home care aides who solicit their services privately.
Should this committee pass this measure, it should consider
whether the bill:
Should also include unannounced licensing inspection
requirements should to help ensure the health and safety of
clients receiving care from a home care organization;
Should require a minimum level of training for home care
aides, such as client rights and safety, universal health
precautions, emergency procedures, living skills, abuse and
neglect, personal hygiene and safe transport of a client;
Should be amended to limit the time period a home care
aide employed prior to enactment of the legislation should
have to comply with the background check clearance
requirements from two years to six months; and
Should be amended to not unnecessarily restrict the
ability of consumers to hire home care aides not employed
by a home care organization.
Concerns and Opposition
The Network of Domestic Referral Agencies (NODRA) has taken an
"Oppose Unless Amended" position. NODRA suggests that this
measure should be amended to support the regulation, regardless
of the model employed to provide home care services. It
references the services it provides as an employment agency, as
defined in California Civil Code, whereby they screen and
require specified disclosures from home care aides contracted
through their referral service. Clients then seek referrals of
screened home care aides from the referral services to provide
home care services. NODRA has raised a number of suggested
amendments to clarify the applicability of AB 322 to include
various models that exist to provide home care services,
including contract based services and those who independently
solicit their own home care services.
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Related legislation
AB 241 (Ammiano) - Regulates the wages, hours and working
conditions of domestic work employees, which are defined in
the bill as individuals who perform domestic work, including
live-in domestic work employees and personal attendants.
AB 1217 (Lowenthal) - Establishes the Home Care Services
Consumer Protection Act of 2013 to provide for the licensure
and regulation of home care organizations and the
certification of home care aides.
RECOMMENDED AMENDMENTS:
Staff recommends the following amendments:
Amendment #1
On page three, line 27 delete "care"
Amendment #2
On page five, line 30 after "employing" insert " , contracting
with or hiring "
Amendment #3
On page six, line 28, before "1796.7" insert the following
language to read:
1976.6. Any 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.
Amendment #4
On page 11, line 20 insert the following language to read:
(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.
Amendment #5
On page 12, delete lines 37 through 39 inclusive and on page 13,
delete lines one through six inclusive and replace with the
following language:
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1796.31. On and after January 1, 2015, a home care
organization shall not hire an individual as a home care aide
unless the individual complies with all of the following
requirements:
(a) Demonstrates that he or she has language skills that are
sufficient to understand instructions 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) 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 observe, report, and document changes in a
client's daily living skills.
(5) How to report, prevent, and detect 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.
Amendment #6
On page 15, line 23 delete "two years" and replace with " six
months "
Amendment #7
On page 18, line seven after "procedures for" insert " the filing
and investigation of complaints, "
REGISTERED SUPPORT / OPPOSITION :
Support
ACCREDITED (The Accredited Family of Home Care Services)
Advisory Council on Aging
California Advocates for Nursing Home Reform (CAHNR)
California Association for Health Services at Home (CAHSAH)
California Commission on Aging (CCoA)
Comfort Keepers of the Southbay
Home & Health Care Management
Home Health & Hospice
Homecare California
LeadingAge
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National Association of Social Workers, CA Chapter (NASW-CA)
Right at Home, In Home Care and Assistance
Visiting Angels, Napa & Sonoma Counties
Visiting Angels, Santa Cruz and Monterey Counties
Opposition
None on file
Analysis Prepared by : Chris Reefe / HUM. S. / (916) 319-2089