Amended in Senate June 18, 2013

Amended in Assembly May 7, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 1217

Introduced by Assembly Member Lowenthal

( begin delete Coauthor: Senator end delete begin insert Coauthors: Senators Beall and end insert Price)

February 22, 2013

An act to add Chapter 13 (commencing with Section 1796.10) to Division 2 of the Health and Safety Code, relating to public health.

LEGISLATIVE COUNSEL’S DIGEST

AB 1217, as amended, Lowenthal. Home Care Services Consumer Protection Act of 2013.

Existing law provides for the In-Home Supportive Services (IHSS) program, a county-administered program under which qualified aged, blind, and disabled persons receive services enabling them to remain in their own homes. The IHSS program includes various eligibility requirements for individuals who provide services to recipients under the program. Under existing law, a private provider of in-home care services is not subject to the requirements of the IHSS program.

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 Consumer Protection Act of 2013, which would provide, on and after July 1, 2014, for the licensure and regulation of home care organizations, as defined, by the State Department of Social Services, and the certification of home care aides. The bill would exclude specified entities from the definition of a home care organization. The bill would impose various licensure requirements on a home care organization. The bill would also impose a civil penalty on an individual or entity that operates a home care organization without a license, except as specified. The bill would require a home care organization to provide a client with specified information 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, this bill would require a home care organization, among other things, to 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 and providing proof of certification as a home care aide, as specified.

The bill would require certain employment agencies to maintain liability insurance, as specified, and ensure that any person it refers to provide home care services has been certified prior to the referral.

This bill would require background clearances for home care aides, as prescribed, and would set forth specific duties of the home care organization, the department, and the Department of Justice in this regard. The bill would 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. The bill would require the department to impose various fees to be deposited in the Home Care Organization and Home Care Aide Fund to be created by this bill. This bill, in addition, would prescribe enforcement procedures, fines, and penalties for violations of the act by a home care organization or a home care aide and violations of specified requirements by an employment agency, as defined.

Vote: majority. Appropriation: no. 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 elderly
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 Employment Development Department has identified
home care services as one of the fastest growing fields of
employment.

(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 maintain 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 both 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 or an individual provider. In
addition, there is currently no centralized list of home care
organizations or individual providers 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 13 (commencing with Section 1796.10) is
added to Division 2 of the Health and Safety Code, to read:

 

Chapter  13. Home Care Services

 

Article 1.  General Provisions

 

1796.10.  

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

1796.11.  

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

1796.12.  

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) “Employment agency” means an employment agency that
procures, 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 Section 1812.5095
of the Civil Code, as long as the agency is not the employer of a
home care aide or other worker who provides assistance with
activities of daily living to the consumer.

(d) “Family member” means any person who is related to the
person who receives home care services. This relationship shall
be by blood, adoption, marriage, domestic partnership, or affinity
within the fifth degree of kinship, including stepparents,
stepsiblings, and all relatives whose status is preceded by the words
“great,” “great-great,” or “grand” or the spouse of any of these
persons, even if the marriage was terminated by death or
dissolution.

(e) “Geographic location” means the city or county in which
the home care organization is located.

(f) (1) “Home care aide” means an individual who provides
home care services to a client in the client’s residence, and is
synonymous, for purposes of this chapter, with “caregiver,”
“custodial care,” “personal care 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, who
provides home care services.

(2) “Home care aide” does not include either of the following:

(A) A family member of the person who receives home care
services.

(B) A person who is employed by, or contracts with, an
organization vendored 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) and the California Early Intervention Services Act (Title
14 (commencing with Section 95000) of the Government Code)
to provide services and support 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 and more
than 50 percent of the recipients of the home care services provided
by the organization are persons with developmental disabilities.

(g) (1) “Home care organization” or “home care agency” 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.

(2) “Home care organization” does not include any of the
following:

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

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

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

(D) 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.

(E) A home medical device retail facility licensed under Section
111656.

(F) An organization vendored 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) and the California Early Intervention Services
Act (Title 14 (commencing with Section 95000) of the Government
Code) to provide services and support 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
and more than 50 percent of the recipients of the home care services
provided by the organization are persons with developmental
disabilities.

(G) An employment agency, as defined in Section 1812.5095
of the Civil Code, that procures, offers, refers, provides, or attempts
to provide a home care aide or other worker who provides home
care services or domestic services to clients and consumers
pursuant to that section, as long as the agency is not the employer
of the home care aide or other worker who provides to the clients
or consumers assistance with activities of daily living, including,
but not limited to, bathing, dressing, feeding, toileting, ambulation,
and transferring.

(H) A residential care facility for the elderly licensed under
Chapter 3.2 (commencing with Section 1569).

(h) “Priority one complaint” means a complaint of sexual abuse
that involves penetration, a complaint of physical abuse that
involves an act that results in great bodily injury, such as a broken
bone, severe cut, head injury, or burn, or a complaint of suspicious
circumstances regarding the death of a client.

(i) “Priority two complaint” means a complaint of sexual abuse
that involves sexual behavior that does not include penetration, a
complaint of physical abuse that involves an act that results in a
minor injury or bruise, or a complaint of felony offenses, including,
but not limited to, robbery, arson, grand theft, and chemical
restraint.

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

(k) “Transportation” means transportation in a motor vehicle
in good working order provided by a home care aide who is a
licensed and insured driver.

1796.13.  

(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
perform these services for himself or herself. 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. This
subdivision shall not be construed to authorize a home care aide
to administer medication that would otherwise require
administration or oversight by a licensed health care professional.

(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).

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

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

(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.

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

(6) Services authorized to be provided pursuant to Section 2731
of the Business and Professions Code.

(c) This chapter shall not be construed to prohibit an individual
from employing a home care aide without the assistance of a home
care organization.

 

Article 2.  Licensure

 

1796.20.  

(a) On and after July 1, 2014, subject to the
exceptions set forth in paragraph (2) of subdivision (f) of Section
1796.12, 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 this state before obtaining a license pursuant to this
chapter.

(b) An individual or entity that violates subdivision (a) shall be
liable for a civil penalty not to exceed nine hundred dollars ($900)
per day for each calendar day of each violation.

(c) Upon discovering that an individual or entity is in violation
of subdivision (a), the department shall send a written notice of
noncompliance to the individual or entity and to the Attorney
General or appropriate district attorney. Upon receiving this notice,
the Attorney General or district attorney shall do any or all 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 within 20 calendar days, the Attorney General or
a district attorney shall 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 of the
Business and Professions Code.

(d) The requirements of this section shall not apply to an
employment agency, as defined in Section 1812.5095 of the Civil
Code, that procures, offers, refers, provides, or attempts to provide
a home care aide or other worker who provides home care services
or domestic services to clients and consumers pursuant to that
section, as long as the agency is not the employer of the home care
aide or other worker who provides assistance with activities of
daily living to the consumer.

1796.21.  

A home care organization that has its principal place
of business in another state, in addition to the other requirements
of this chapter, shall 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.

1796.22.  

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.

1796.23.  

In order to carry out the provisions of this chapter,
the department may do any 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) Investigate priority one and priority two complaints begin delete by end delete
begin insert against end insert certified home care aides not employed by a home care
organization. The department may take disciplinary action in
accordance with subdivision (d) of Section 1796.30.

(d) (1) Maintain on the department’s Internet Web site a registry
of, with the capability to look up the certification status of, any
certified home care aide, the name and geographic location of the
home care aide’s employer, if there is one, or name and geographic
location of all employers if there are more than one, and any
disciplinary action taken against the home care aide. In the case
of a home care aide who is an independent contractor and not
employed by a home care organization, the Internet Web site shall
indicate that status. To expedite the ability of a consumer to search
and locate an appropriate home care aide, the Internet Web site
shall enable consumers to look up the certification status, including
any disciplinary action taken against the home care aide, by
providing the home care aide’s name, certificate number, and
geographic location. The Internet Web site shall not provide any
additional, individually identifiable information about a home care
aide. The department also may request and maintain additional
employment information for a certified home care aide, as
necessary, which shall not be publicly available on the registry.

(2) The department shall update the Internet Web site upon
receiving notification from a certified home care aide that he or
she has left a home care organization or has changed home care
organizations.

(e) Maintain a registry on the department’s Internet Web site
on the licensure status of all licensed home care organizations,
along with the name, address, and telephone number of the home
care organization, and the status of any begin delete proposed or end delete completed
disciplinary action against the licensed home care organization.
The department also may request and maintain additional
information for a licensed home care organization, as necessary,
which shall not be publicly available on the registry.

1796.24.  

Notwithstanding any other provision of this chapter,
the department shall issue a home care organization license to an
entity that satisfies all of the following requirements:

(a) Files an application, including the fees required pursuant to
Section 1796.70.

(b) 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.

(c) 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.

(d) Provides the department with a complete list of its home
care aides, and proof that each satisfies the requirements of Section
1796.60.

(e) The owner or owners of the home care organization pass a
background clearance, as required pursuant to Section 1796.26.

1796.25.  

(a) The term of a license issued pursuant to this
chapter shall be two years.

(b) A license may be renewed upon application to the department
and the payment of a renewal fee prescribed by the department.

(c) At least 90 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.

1796.26.  

(a) In order to obtain a license, the following
individual or individuals shall consent to the background clearance
described in Section 1796.62:

(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) (1) 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.

(2) Notwithstanding paragraph (1), a license shall not be denied
under this section if the applicant has obtained a certificate of
rehabilitation under Chapter 3.5 (commencing with Section
4852.01) of Title 6 of Part 3 of the Penal Code or the information
or accusation against him or her has been dismissed pursuant to
Section 1203.4 of the Penal Code.

(c) In determining whether or not to deny the application for
licensure or renewal pursuant to subdivision (b), the department
shall take into consideration the following factors as evidence of
good character and rehabilitation:

(1) The nature and seriousness of the conduct or crime under
consideration and its relationship to the person’s employment
duties and responsibilities.

(2) Activities since conviction, including employment or
participation in therapy or education, that would indicate changed
behavior.

(3) The time that has elapsed since the commission of the
conduct or offense referred to in paragraph (1) or (2) and the
number of offenses.

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

(5) Any rehabilitation evidence, including character references,
submitted by the person.

(6) Employment history and current employer recommendations.

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

(d) If the department makes a determination to deny an
application, the department shall notify the applicant of this
determination by either personal service or registered mail. The
notice shall include the following information:

(1) A statement of the department’s reasons for the denial that
evaluates evidence of rehabilitation submitted by the applicant, if
any, and that specifically addresses any evidence submitted relating
to the factors considered in subdivision (c).

(2) A copy of the applicant’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 copy of the
response was provided 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.

(3) An opportunity to correct inaccurate information on the
record by submitting certified court minute orders to the
department.

(e) (1) Upon written notification that the department has
determined that a license shall be denied, the applicant may request
an administrative hearing by submitting a written request to the
department within 15 business days of receipt of the written
notification. Upon receipt of a written request, the department shall
hold an administrative hearing consistent with the procedures
specified in Section 100171, except where those procedures are
inconsistent with this section.

(2) A hearing under this subdivision shall be conducted by a
hearing officer or administrative law judge designated by the
director. A written decision shall be sent by certified mail to the
applicant.

1796.27.  

A private or public organization, with the exception
of 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, and the
exceptions provided for in subdivision (c), shall not 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 advertising, 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 terms “home care organization,” “home care,”
“in-home care,” or any combination of those terms, within its
name.

(c) This section does not apply to either of the following:

(1) 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.

(2) An employment agency, as defined in Section 1812.5095
of the Civil Code, that procures, offers, refers, provides, or attempts
to provide a home care aide or other worker who provides home
care services or domestic services to clients and consumers
pursuant to that section, as long as the agency is not the employer
of a home care aide or other worker who provides domestic
services.

 

Article 3.  Complaints, Inspections, and Investigations

 

1796.30.  

(a) The department may review and, if it determines
necessary, investigate complaints filed against home care
organizations or home care aides not employed by a home care
organization that meet the specified definition of a priority one or
priority two complaint.

(b) The department shall verify through random, unannounced
inspections at least once every five years that a home care
organization meets the requirements of this chapter and the
regulations adopted pursuant thereto.

(c) An investigation or inspection conducted by the department
pursuant to this chapter may include, but is not limited to, the
following:

(1) Inspection of the books, records, and premises of a home
care organization. A home care organization’s refusal to make
those records, books, or premises available shall constitute cause
for the revocation of the home care 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.

(d) If the department determines that a home care aide is in
violation of this chapter or any rules promulgated hereunder, a
notice of violation shall be served upon the individual. Each notice
of violation shall be prepared in writing and shall specify the nature
of the violation and the statutory provision or rule alleged to have
been violated. The notice shall inform the individual of any action
the department may take under this chapter, including an action
to suspend, revoke, or deny renewal of the certificate. The director
or his or her designee shall also inform the individual of his or her
rights to a hearing under this chapter.

 

Article 4.  Home Care Organization Operating Requirements

 

1796.40.  

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 home care organization in a commercial office
space that complies with local zoning ordinances.

(c) Have plans, procedures, and policies in place, including all
of the following:

(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
implementing this chapter.

1796.41.  

With respect to home care aides employed by a home
care organization, the home care organization shall consult the
department’s registry, if a registry is maintained by the department,
before hiring an individual or placing him or her in direct contact
with patients. In addition, the home care organization shall do all
of the following:

(a) (1) Ensure that each of its home care aides employed before
January 1, 2015, meets the requirements of Section 1796.61 no
later than July 1, 2015.

(2) Ensure that all individuals hired on or after January 1, 2015,
have met the requirements of Section 1796.61 before being hired
as a home care aide.

(b) (1) 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 home care organization
shall document both the existence and the resolution of those
complaints.

(2) If the home care organization completes an investigation of
a complaint against a home care aide pursuant to paragraph (1)
and finds that, in its opinion, the home care aide is in violation of
this chapter, the home care organization shall immediately notify
the department in order for the department to take the appropriate
steps, which may include revoking the home care aide’s certificate.

(c) 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 90 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.

(d) Ensure that a home care aide, when providing services to a
client, has access at all times to a representative of the home care
organization who is in a supervisory capacity and who does not
regularly render home care services to that client.

(e) 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.

(5) The home care aide’s certificate number as issued by the
department.

(f) Require home care aides to demonstrate that they are free
of active tuberculosis, pursuant to Section 1796.63.

(g) Require home care aides to annually complete not less than
five hours of department-approved training on job-related topics.

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

(i) Immediately notify the department when the home care
organization no longer employs an individual as a home care aide
in order for the department to update its Internet Web site.

 

Article 4.5.  Employment Agency Insurance

 

1796.45.  

(a) An employment agency, as defined in Section
1812.5095 of the Civil Code, that procures, offers, refers, provides,
or attempts to provide a home care aide who provides home care
services or other worker who provides assistance with activities
of daily living to the client or consumer pursuant to that section,
shall, at all times, maintain 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.

(b) An employment agency shall submit to the department proof
of insurance required pursuant to subdivision (a) no later than July
1, 2014, and annually thereafter.

(c) The department may assess a civil penalty not to exceed
nine hundred dollars ($900) a day for violation of this section.

(d) Nothing in this section shall authorize the department to
assess a civil penalty on an employment agency for lack of
coverage if the lack of coverage is found to be the fault of the
professional liability insurer.

 

Article 5.  Client Rights

 

1796.50.  

With respect to clients, a home care organization shall
do all of 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.

1796.51.  

(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 (a).

(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

 

1796.60.  

(a) (1) Beginning January 1, 2015, the department
shall require any person hired as a home care aide on or after
January 1, 2015, to be certified before being hired and shall require
that any home care aide or person providing assistance with
activities of daily living to the client or consumer referred by an
employment agency, as defined in Section 1812.5095 of the Civil
Code, be certified prior to any referral.

(2) The term of a certificate issued pursuant to this chapter shall
be two years. The certificate may be renewed upon application to
the department and payment of the renewal fee prescribed by the
department pursuant to this chapter.

(b) In order to receive a certificate from the department to
provide home care services for the elderly or persons with
disabilities, a home care aide shall meet the minimum training
requirements in this section. Only training curriculum approved
by the department may be used to fulfill the training requirements
specified in this section.

(c) (1) A prospective home care aide shall complete a minimum
of five hours of entry-level training, as follows:

(A) Two hours of orientation training regarding his or her role
as caregiver and the applicable terms of employment.

(B) Three hours of safety training, including basic safety
precautions, emergency procedures, and infection control.

(C) Other training related to core competencies and
population-specific competencies as required by regulation, which
shall include, but are not limited to, the following areas:

(i) Client rights and safety.

(ii) How to provide for and respond to a client’s daily living
needs.

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

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

(v) If transportation services are provided, how to safely
transport a client.

(2) If the department determines that the training required by
paragraph (1) is unavailable in an applicant’s county, the
department shall issue a temporary home care aide certificate to
that individual that will be valid until the date that proper training
is made available in that county. Upon completion of the required
training, the department shall replace the temporary home care
aide certificate and issue a permanent home care aide certificate.

(3) The entry-level training, and annual training on
department-approved job-related topics, may be completed through
an online training program.

(d) The department shall only approve a training curriculum
that satisfies both of the following conditions:

(1) The training curriculum has been developed with input from
consumer and worker representatives.

(2) The training curriculum requires comprehensive instruction
by qualified instructors on the competencies and training topics
identified in this section.

(e) The applicant shall consent to the background clearance
described in Section 1796.62.

(f) The department shall issue a home care aide certificate to
each individual who meets the requirements of this section.

(g) The department shall set a fee for certification under this
section that shall be paid for by the home care aide.

(h) The applicant shall submit to an examination, as defined in
Section 1796.63, to determine if he or she is free of active
tuberculosis.

1796.61.  

(a) 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:

(1) Completes an individual interview, to the satisfaction of the
home care organization.

(2) Provides at least two work- or school-related references or,
for an individual with no previous work experience, at least two
character references from nonrelatives. The home care organization
shall verify the references before hiring the individual.

(3) Demonstrates that he or she possesses sufficient language
skills to read and understand instructions, prepare and maintain
written reports and records, and communicate with a client.

(4) Provides proof of certification as a home care aide, pursuant
to Section 1796.60.

(b) For home care aides employed by a home care organization
before January 1, 2015, a certificate pursuant to this chapter shall
be obtained by July 1, 2015, in order for both the home care aide
and the home care organization to be in compliance with this
chapter.

(c) (1) Notwithstanding any other provision of law, an
employment agency, as defined in Section 1812.5095 of the Civil
Code, shall ensure that any home care aide it refers to provide
home care services, or person it refers who provides assistance
with activities of daily living to the client or consumer, has been
certified under Section 1796.60 prior to the referral.

(2) The department may investigate complaints against an
employment agency, as defined in Section 1812.5095 of the Civil
Code, including, but not limited to, complaints made by a client
or a client’s family member or guardian if the employment agency
fails to comply with the provisions of this section. An employment
agency that violates this subdivision shall be liable for a civil
penalty not to exceed nine hundred dollars ($900) per day for each
calendar day of each violation.

1796.62.  

(a) A background clearance is required, unless the
individual holds a valid, unexpired license, certification, or
registration in a health-related field that requires a background
check as a condition of the license, certification, or registration.

(b) (1) The applicant shall electronically submit to the
Department of Justice fingerprint images and related information
required by the Department of Justice of all home care aides, as
defined under subdivision (e) of Section 1796.12, for the purposes
of obtaining information as to the existence and content of a record
of state convictions and state arrests, and also information as to
the existence and content of a record of state arrests for which the
Department of Justice establishes that the person is free on bail or
on his or her own recognizance pending trial or appeal.

(2) The Department of Justice shall provide a state response to
the department pursuant to paragraph (1) of subdivision (n) of
Section 11105 of the Penal Code.

(3) The department shall request from the Department of Justice
subsequent arrest notification service, as provided pursuant to
Section 11105.2 of the Penal Code, for persons described in
paragraph (1).

(4) The Department of Justice shall charge a fee not to exceed
the actual cost of processing the request described in this
subdivision.

(c) If the background check required by subdivision (b) discloses
a conviction or incarceration for a conviction of any of the
following provisions of the Penal Code within 10 years, the
department shall deny the home care aide certification to that
individual:

(1) A violation of subdivision (a) of Section 273a of the Penal
Code, or 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 and subdivision (c) of Section
1192.7 of the Penal Code.

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

(d) Notwithstanding subdivision (c), a certification shall not be
denied under this section if the applicant has obtained a certificate
of rehabilitation under Chapter 3.5 (commencing with Section
4852.01) of Title 6 of Part 3 of the Penal Code or the information
or accusation against him or her has been dismissed pursuant to
Section 1203.4 of the Penal Code.

(e) Upon determination to deny an application, if the denial of
a certificate is due at least in part to the applicant’s state criminal
history record, the department shall notify the applicant of this
determination by either personal service or registered mail, and
the notification shall include the same information as required in
subdivision (d) of Section 1796.26.

(f) An applicant 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. The
department shall consider the same factors when determining
whether to grant a general exception as considered in subdivision
(c) of Section 1796.26.

(g) (1) Upon written notification that the department has
determined that a request for exception shall be denied, the
applicant may request an administrative hearing by submitting a
written request to the department within 15 business days of receipt
of the written notification. Upon receipt of a written request, the
department shall hold an administrative hearing consistent with
the procedures specified in Section 100171, except where those
procedures are inconsistent with this section.

(2) A hearing under this subdivision shall be conducted by a
hearing officer or administrative law judge designated by the
director. A written decision shall be sent by certified mail to the
applicant.

(h) The applicant shall complete and pay for the background
clearance specified in subdivision (b).

(i) A home care aide employed on or after July 1, 2014, shall
not be permitted to provide home care services until he or she
passes the background clearance pursuant to this section.

1796.63.  

(a) An individual hired as a home care aide on or
after January 1, 2015, shall be terminated from employment unless
the individual submitted to an examination within six months prior
to 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, 2015, shall submit to the
examination described in subdivision (a) before July 1, 2015.

(c) After submitting to an examination, a home care aide whose
tuberculin skin test is 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 home care 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 home
care 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 home care
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

 

1796.70.  

(a)  The department shall assess licensure and
certification fees in amounts sufficient to support the costs of each
activity authorized by this chapter. Except for General Fund
moneys that are otherwise transferred or appropriated for the initial
costs of administering this chapter, or penalties collected pursuant
to this chapter that are appropriated by the Legislature for the
purposes of this chapter, no General Fund moneys shall be used
for any purpose under this chapter.

(b) The Home Care Organization and Home Care Aide Fund is
hereby created within the State Treasury for the purpose of this
chapter. All licensure and certification fees authorized by this
chapter shall be deposited into the Home Care Organization and
Home Care Aide Fund. Moneys in this fund shall, upon
appropriation by the Legislature, be made available to the
department for purposes of administering this chapter.

(c) The licensure fee shall be equivalent to the cost of
administering the licensure program, as defined by the department.

(d) The certification fee shall be equivalent to the cost of
administering the certification program, as defined by the
department.

(e) Commencing February 1, 2015, and every February 1
thereafter, the department shall publish the fees estimated pursuant
to this section. The calculation of estimated fees and the publication
of estimated fees shall not be subject to the rulemaking
requirements of Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code. By
February 1 of each year, the department shall make the fee
estimates available to the public by submitting them to the
Legislature and posting them on the department’s Internet Web
site.

(f) (1) The department shall prepare a report of all costs for
home care licensure and home care aide certification activities. At
a minimum, this report shall include a narrative of all baseline
adjustments and their calculations, descriptions of assumptions
used in any calculations, and shall recommend home care
organization licensure fees and home care aide certification fees
sufficient to support projected costs.

(2) The department shall make a copy of the report available to
the public on the department’s Internet Web site and provide a
copy to the Legislature. A report to the Legislature shall be
submitted in compliance with Section 9795 of the Government
Code.

 

Article 8.  Enforcement and Penalties

 

1796.80.  

(a) A home care organization or employment agency,
as defined in Section 1812.5095 of the Civil Code, providing
certified home care aides, that operates in violation of any
requirement or obligation imposed by this chapter or any
implementing rule or regulation, may be subject to the 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 rules promulgated
hereunder or that an employment agency is in violation of Section
1796.45 or subdivision (a) of Section 1796.60, 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 rule 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 a fine of up to nine hundred
dollars ($900) per violation per day commencing on the date the
violation was identified and ending on the date each 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 violation 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 notices, correction plans, appeals, and hearings. In
developing the procedures, the department shall convene and
consult with a working group of affected stakeholders.

1796.81.  

Any fines and penalties collected pursuant to this
chapter shall be deposited into the Home Care Organization and
Home Care Aide Penalties Subaccount, which is hereby created
within the Home Care Organization and Home Care Aide Fund
created pursuant to Section 1796.70. Moneys in this account shall,
upon appropriation by the Legislature, be made available to the
department for purposes of enforcing this chapter.