Amended in Senate September 6, 2013

Amended in Senate September 5, 2013

Amended in Senate September 3, 2013

Amended in Senate August 12, 2013

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

(Coauthor: Assembly Member Rendon)

(Coauthors: Senators Beall, Padilla, and Price)

February 22, 2013

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

LEGISLATIVE COUNSEL’S DIGEST

AB 1217, as amended, Lowenthal. begin delete Home Care Services Consumer Protection Act of 2013. end delete begin insert Home Care Services Consumer Protection Act. end insert

begin insert

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.

end insert begin insert

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

end insert begin insert

This bill would enact the Home Care Services Consumer Protection Act, which would provide, on and after January 1, 2015, for the licensure and regulation of home care organizations, as defined, by the State Department of Social Services, and the registration of home care aides. The bill would exclude specified entities from the definition of a home care organization and would not include certain types of individuals as home care aides for the purposes of these provisions.

end insert begin insert

This bill would require the department to establish and continuously update a home care aid registry, which would include specified information relating to home care aid applicants and registered home care aides. 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 a home care aide applicant to submit to the Department of Justice a signed declaration under penalty of perjury regarding any prior criminal convictions. The bill would require home care aides to demonstrate they are free of active tuberculosis.

end insert begin insert

The bill would require the department to impose various fees to be deposited in the 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. The bill would require any fines and penalties collected under these provisions to be deposited into the Home Care Penalties subaccount within the Home Care Fund to be created by this bill.

end insert begin insert

This bill would provide that is a misdemeanor for a person to falsely represent or present himself or herself as a home care aide applicant or registered home care aide. The would also provide that any person who violates these provisions or willfully or repeatedly violated a rule or regulation promulgated under these provisions is guilty of a misdemeanor. Because this bill creates new crimes, this bill imposes a state-mandated local program.

end insert begin insert

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

end insert begin insert

This bill would provide that no reimbursement is required by this act for a specified reason.

end insert begin delete

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.

end delete begin delete

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

end delete begin delete

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.

end delete begin delete

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.

end delete begin delete

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.

end delete begin delete

This bill would specify that the provisions do not supersede local laws regulating home care organizations and home care services, including licensing, reporting, registration, and providing for civil penalties.

end delete

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Chapter 13 (commencing with Section 1796.10)
is added to Division 2 of the end insert begin insert Health and Safety Code end insert begin insert , to read: end insert

begin insert

 

Chapter   begin insert 13. end insert Home Care Services

 

Article begin insert 1. end insert   General Provisions

 

begin insert 1796.10 end insert   

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

begin insert 1796.11. end insert   

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

begin insert 1796.12. end insert   

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

(a) “Affiliated home care aide” means an individual, 18 years
of age or older, who is employed by a home care organization to
provide home care services to a client and is listed on the home
care aide registry.

(b) “Child” or “children” means an individual or individuals
under 18 years of age.

(c) “Client” means an individual who receives home care
services from a registered home care aide.

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

(e) “Director” means the Director of Social Services.

(f) “Family member” means any spouse, by marriage or
otherwise, child or stepchild, by natural birth or by adoption,
parent, brother, sister, half-brother, half-sister, parent-in-law,
brother-in-law, sister-in-law, nephew, niece, aunt, uncle, first
cousin, or any person denoted by the prefix “grand” or “great,”
or the spouse of any of these persons, even if the marriage has
been terminated by death or dissolution.

(g) “Home care aide applicant” means an individual, 18 years
of age or older, who is requesting to become an registered home
care aide and the department has received and is processing the
individual’s complete home care aide application and fees.

(h) “Home care aide application” means the official form,
designated by the department, to request to become a registered
home care aide.

(i) “Home care aide registry” means a department-established
and department maintained Internet Web site of registered home
care aides and home care aide applicants, which includes all of
the following: the individual’s name, registration number,
registration status, registration expiration date, and, if applicable,
the home care organization to which the affiliated home care aide
or affiliated home care aide applicant is associated.

(j) “Home care organization” means an individual, 18 years
of age or older, firm, partnership, corporation, limited liability
company, joint venture, association, or other entity that arranges
for home care services by an affiliated home care aide to a client,
and is licensed pursuant to this chapter.

(k) “Home care organization application” means the official
form, designated by the department, to request to become a licensed
home care organization.

(l) “Home care organization licensee” means an individual, 18
years of age or older, firm, partnership, corporation, limited
liability company, joint venture, association, or other entity having
the authority and responsibility for the operation of a licensed
home care organization.

(m) “Home care services” means nonmedical services and
assistance provided by a registered home care aide to a client
who, because of advanced age or physical or mental disability,
cannot perform these services. These services enable the client to
remain in his or her residence and include, but are not limited to,
assistance with the following: bathing, dressing, feeding,
exercising, personal hygiene and grooming, transferring,
ambulating, positioning, toileting and incontinence care, assisting
with medication that the client 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 authorize a registered home care aide to assist with medication
that the client self-administers that would otherwise require
administration or oversight by a licensed health care professional.

(n) “Registered home care aide” means an affiliated home care
aide or independent home care aide, 18 years of age or older, who
is listed on the home care aide registry.

(o) “Independent home care aide” means an individual, 18
years of age or older, who is not employed by a home care
organization, but who is listed on the home care aide registry and
is providing home care services through a direct agreement with
a client.

 

Article begin insert 2. end insert   Registry and Exemptions

 

begin insert 1796.14. end insert   

(a) Individuals who are not employed by a home care
organization but who provide home care services to a client may
be listed on the home care aide registry.

(b) An affiliated home care aide shall be listed on the home care
aide registry prior to providing home care services to a client.

(c) Any registered home care aide providing home care services
to a child shall also obtain a Child Abuse Central Index check, as
set forth in paragraph (2) of subdivision (a) of Section 1796.19,
unless the individual is exempt.

(d) Any registered home care aide who, after being placed on
the home care registry, will provide home care services to a child,
shall obtain a Child Abuse Central Index check, as set forth in
paragraph (2) of subdivision (a) of Section 1796.19, unless the
individual is exempt.

(e) An individual providing home care services to a child is
exempt from any requirement to be listed on the home care aide
registry if the individual is one of the following:

(1) A family member of the child.

(2) A guardian of the child.

(3) A conservator of the child.

(4) A foster parent of the child, in a foster family home, as
defined in paragraph (5) of subdivision (a) of Section 1502, or a
certified family home, as defined in subdivision (d) of Section 1506.

(5) Nonrelative extended family member, as defined in Section
362.7 of the Welfare and Institutions Code.

(6) Providing home care services in a facility in which only
Indian children who are eligible under the federal Indian Child
Welfare Act (25 U.S.C. 1901 et seq.) are placed and is one of the
following:

(A) An extended family member of the Indian child, as defined
in Section 1903 of Title 25 of the United States Code.

(B) A foster home that is licensed, approved, or specified by the
Indian child’s tribe pursuant to Section 1915 of Title 25 of the
United States Code.

(7) Providing home care services as part of his or her job duties
through one of the following entities:

(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) Any clinic licensed under Sections 1204 or 1204.1.

(E) 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.

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

(G) 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 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 and more
than 50 percent of the recipients of the home care services provided
by the organization are persons with developmental disabilities.

(H) A community care facility as licensed under Chapter 3
(commencing with Section 1500), a residential care facility for
persons with special health care needs licensed under Chapter
3.01 (commencing with Section 1568.01), a residential care facility
for the elderly licensed under Chapter 3.2 (commencing with
Section 1569), or a child day care licensed under Chapter 3.4
(commencing with Section 1596.70).

(I) Any alcoholism or drug abuse recovery or treatment facility
as defined by Section 11834.02.

(J) Any other entity providing services similar to those described
in this paragraph, as determined by the director.

(8) Providing services authorized pursuant to Section 2731 of
the Business and Professions Code

(f) (1) Home care aides shall not include individuals who are
providing home care services as part of their job duties through
one of the following entities:

(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).

(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 authorized to be provided by one of the following:

(i) A licensed residential care facility for the elderly pursuant
to Chapter 3.2 (commencing with Section 1569).

(ii) A licensed community care facility pursuant to Chapter 3
(commencing with Section 1500).

(iii) A licensed residential care facility for persons with chronic
life-threatening illness pursuant to Chapter 3.01 (commencing
with Section 1568.01).

(iv) A licensed facility, pursuant to the California Child Day
Care Act (Chapter 3.4 (commencing with Section 1596.70)), which
includes day care centers under Chapter 3.5 (commencing with
Section 1596.90) and family day care homes under to Chapter 3.6
(commencing with Section 1597.30).

(2) Home care aides shall not include individuals providing
services authorized to be provided pursuant to Section 2731 of the
Business and Professions Code.

begin insert 1796.15. end insert   

This chapter shall not prohibit an individual from
employing an individual not listed on the home care aide registry
to provide home care services. The department shall have
responsibility only for the maintenance of the home care aide
registry regarding registered home care aides.

begin insert 1796.16. end insert   

A registered home care aide may provide home care
services to more than one child for a family, but may not provide
home care services for a child or children from more than one
family at the same time. This section shall not preclude a registered
home care aide from providing home care services for a child or
children of multiple families at different times. This chapter shall
not override provisions of the California Child Day Care Act
(Chapter 3.4 (commencing with Section 1596.70)), Chapter 3.5
(commencing with Section 1596.90), and Chapter 3.6 (commencing
with Section 1597.30).

begin insert 1796.17. end insert   

A home care organization shall not include 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 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 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 an independent home care aide who provides home
care services clients.

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

(i) A community care facility licensed under Chapter 3
(commencing with Section 1500), or a residential care facility for
persons with chronic life-threatening illness licensed under
Chapter 3.01 (commencing with Section 1568.01).

(j) An person or organization performing activities that fall
under the jurisdiction of a child day care facility licensed under
Chapter 3.4 (commencing with Section 1596.70), a day care center
licensed under Chapter 3.5 (commencing with Section 1596.60),
or a family day care home licensed under Chapter 3.6
(commencing with Section 1597.30).

 

Article begin insert 3. end insert   Home Care Aide Applicants

 

begin insert 1796.19. end insert   

(a) The department shall consider, but is not limited
to, the following when determining whether to approve a
registration application:

(1) Evidence satisfactory to the department of the ability of the
independent home care aide applicant or the affiliated home care
aide applicant to comply with this chapter and the rules and
regulations promulgated under this chapter by the department.

(2) Evidence satisfactory to the department that the independent
home care aide applicant or the affiliated home care aide applicant
is of reputable and responsible character. The evidence shall
include, but is not limited to, a review of the independent home
care aide applicant’s or the affiliated home care aide applicant’s
criminal offender record information pursuant to Section 1522. If
home care services are to be provided to a child by an affiliated
home care aide, the evidence shall also include a review of the
Child Abuse Central Index pursuant to Section 1522.1. If home
care services are to be provided to a child by an independent home
care aide and the aide elects to be subject to a Child Abuse Central
Index review, the evidence shall also include a review of the Child
Abuse Central Index pursuant to Section 1522.1.

(3) Disclosure of any revocation or other disciplinary action
taken, or in the process of being taken, related to the care of
individuals against the independent home care aide applicant or
the affiliated home care aide applicant.

(4) A signed statement that the independent home care aide
applicant or the affiliated home care aide applicant has read and
understood this chapter and any rules and regulations promulgated
under this chapter by the department.

(5) Any other information that may be required by the
department for the proper administration and enforcement of this
chapter.

(b) Failure of the home care aide applicant to cooperate with
the department in the completion of the Home Care Aide
application shall result in the withdrawal of the registration
application. “Failure to cooperate” means that the information
described in this chapter and by any rules and regulations
promulgated under this chapter has not been provided, or has not
been provided in the form requested by the department, or both.

 

Article begin insert 4. end insert   Registration

 

begin insert 1796.21. end insert   

A registered home care aide shall be 18 years of age
or older.

begin insert 1796.22. end insert   

Any individual who has submitted an application and
who possesses any one of the following identification cards may
initiate a background examination to be a registered home care
aide:

(a) A valid California driver’s license.

(b) A valid identification card issued by the Department of Motor
Vehicles.

(c) A valid Alien Registration Card.

(d) In the case of a person living in a state other than California,
a valid numbered photo identification card issued by an agency
of the state other than California.

begin insert 1796.23. end insert   

(a) Each person initiating a background examination
to be a registered home care aide shall submit his or her
fingerprints to the Department of Justice by electronic transmission
in a manner approved by the State Department of Social Services,
unless exempt under subdivision (d). Each person initiating a
background examination to be a registered home care aide shall
also submit to the State Department of Social Services a signed
declaration under penalty of perjury regarding any prior criminal
convictions pursuant to Section 1522 and a completed home care
aide application.

(b) A law enforcement agency or other local agency authorized
to take fingerprints may charge a reasonable fee to offset the costs
of fingerprinting for the purposes of this chapter.

(c) The Department of Justice shall use the fingerprints to search
the state and Federal Bureau of Investigation criminal offender
record information pursuant to Section 1522, and if applicable,
the Child Abuse Central Index pursuant to Section 1522.1.

(d) A person who is a current licensee or employee in a facility
licensed by the State Department of Social Services, a certified
foster parent, a certified administrator, or a registered TrustLine
provider need not submit fingerprints to the State Department of
Social Services and may transfer his or her current criminal record
clearance or exemption pursuant to paragraph (1) of subdivision
(h) of Section 1522. The person shall instead submit to the State
Department of Social Services, along with the person’s registration
application, a copy of the person’s identification card described
in Section 1796.22 and sign a declaration verifying the person’s
identity.

begin insert 1796.24. end insert   

(a) (1) The department shall establish a home care
aide registry pursuant to this chapter and shall continuously update
the registry information. Upon submission of the home care aid
application and fingerprints or other identification documents
pursuant to Section 1796.23, the department shall enter into the
home care aide registry the person’s name, identification number,
and an indicator that the person has submitted a home care aide
application and fingerprints or identification documentation. This
person shall be known as a “home care aide applicant.”

(2) A person shall not be entitled to apply to be a registered
home care aide and shall have his or her registration application
returned without the right to appeal if the person would not be
eligible to obtain a license pursuant to Section 1558.1.

(b) (1) Before approving an individual for registration, the
department shall check the individual’s criminal history pursuant
to Section 1522. Upon completion of the searches of the state
summary criminal offender record information and the records of
the Federal Bureau of Investigation, the applicant shall be issued
a criminal record clearance or granted a criminal record
exemption if grounds do not exist for denial pursuant to Section
1522. The department shall enter that finding in the person’s
record in the home care aide registry and shall notify the person
of the action. This person shall be known as an “independent home
care aide” or an “affiliated home care aide.” If the applicant
meets all of the conditions for registration, except receipt of the
Federal Bureau of Investigation’s criminal offender record
information search response, the department may issue a clearance
if the applicant has signed and submitted a statement that he or
she has never been convicted of a crime in the United States, other
than a minor traffic violation. If, after approval, the department
determines that the registrant has a criminal record, registration
may be revoked pursuant to Section 1796.26.

(2) For purposes of compliance with this section, the department
may permit an applicant to request the transfer of a current
criminal record clearance or exemption for a licensed care facility
issued by the department or a county with delegated licensing
authority. A signed criminal record clearance or exemption
transfer request shall be submitted to the department and shall
include a copy of the person’s driver’s license or valid
identification card issued by the Department of Motor Vehicles,
or a valid photo identification issued by another state or the United
States government if the person is not a California resident. Upon
request of the licensee, who shall enclose a self-addressed envelope
for this purpose, the State Department of Social Services shall
verify whether the individual has a clearance or exemption that
can be transferred pursuant to the requirements of this chapter.

(3) The State Department of Social Services shall hold criminal
record clearances and exemptions in its active files for a minimum
of three years after the individual is no longer on the registry in
order to facilitate a transfer request.

begin insert 1796.25 end insert   

(a) (1) If the department finds that the home care
aide applicant or the registered home care aide has been convicted
of a crime, other than a minor traffic violation, the department
shall deny the home care aide application, or revoke the registered
home care aide’s registration unless the director grants an
exemption pursuant to subdivision (g) of Section 1522.

(2) If the department finds that the independent home care aide
applicant, the independent home care aide, the affiliated home
care aide applicant, or the affiliated home care aide has an arrest
as described in subdivision (a) of Section 1522, the department
may deny the registration application or registration renewal
application, or revoke the registered home care aide’s registration,
if the independent home care aide applicant, independent home
care aide, affiliated home care aide applicant, or affiliated home
care aide may pose a risk to the health and safety of any person
who is or may become a client and the department complies with
subdivision (e) of Section 1522.

(3) The department may deny the home care aide application
or the renewal application of a registered home care aide if the
department discovers that it had previously revoked a license or
certificate of approval to be a certified family home, a certified
administrator, or a registered TrustLine provider held by the home
care aide applicant or registered home care aide, or that it had
excluded the home care aide applicant or registered home care
aide from a licensed facility.

(4) The department may deny the home care aide application
or registered home care aide registration renewal application, for
placement or retention upon the home care aide registry or revoke
the registered home care aide’s registration if the department
discovers that it had previously denied the home care aide
applicant’s or registered home care aide’s application for a license
from the department or certificate of approval to be a certified
family home, a certified administrator, or a registered TrustLine
provider.

(b) (1) If the department revokes or denies a home care aide
application or registered home care aide’s renewal application
pursuant to subdivision (a), the department shall advise the home
care aide applicant or registered home care aide of the right to
appeal. The home care aide applicant or registered home care
aide shall have 15 days to appeal the denial or revocation.

(2) Upon receipt by the department of the appeal, the appeal
shall be set for hearing. The hearing shall be conducted in
accordance with Section 1551.

(c) If the home care aide application or registered home care
aide renewal application has been denied, the home care aide
applicant or registered home care aide shall not reapply until he
or she meets the timeframe set forth by the department in
regulation, not to exceed one year.

begin insert 1796.26. end insert   

(a) (1) The department may revoke or deny a
registered home care aide’s registration or request for registration
renewal if the registered home care aide does any of the following:

(A) Procures or attempts to procure his or her registered home
care aide registration or renewal by fraud or misrepresentation.

(B) Knowingly makes or gives any false statement or information
in conjunction with the registered home care aide application or
renewal application.

(C) Has a criminal conviction, unless an exemption is granted
pursuant to Section 1522.

(D) Engages or has engaged in an incident of abuse or neglect
or other conduct that poses a threat to the health and safety of any
person who is or may become a client.

(E) Violates this chapter or of the rules or regulations
promulgated under this chapter.

(F) Aids, abets, or permits the violation of this chapter or of the
rules and regulations promulgated under this chapter.

(G) Engages or has engaged in conduct which is inimical to the
health, morals, welfare, or safety of the people of the state or an
individual receiving or seeking to receive home care services.

(H) Engages or has engaged in acts of financial malfeasance
concerning a client, including, but not limited to, improper use or
embezzlement of client moneys and property or fraudulent
appropriation for personal gain of client moneys and property, or
willful or negligent failure to provide services.

(2) An individual whose registered home care aide registration
has been revoked shall not reapply until he or she meets the
timeframe as set forth in Section 1558.1.

(3) An individual whose registered home care aide criminal
record exemption has been denied shall not reapply for two years
from the date of the exemption denial.

(4) The hearing to revoke or deny the registered home care aide
registration or registration renewal request shall be conducted in
accordance with Section 1551.

(b) (1) The registered home care aide’s registration shall be
considered forfeited under the following conditions:

(A) The registered home care aide has had a license or
certificate of approval revoked, suspended, or denied as authorized
under Section 1534, 1550, 1568.082, 1569.50, or 1596.885.

(B) The registered home care aide has been denied employment,
residence, or presence in a facility or client’s home based on action
resulting from an administrative hearing pursuant to Section 1558,
1568.092, 1569.58, or 1596.8897.

(C) The registered home care aide fails to maintain a current
mailing address with the department.

(D) The registered home care aide’s registration is not renewed.

(E) The registered home care aide surrenders his or her
registration to the department.

(F) The registered home care aide dies.

(2) An individual whose registered home care aide registration
has been forfeited shall not reapply until he or she meets the
timeframe set forth by the department in Section 1558.1.

(c) A registered home care aide’s registration shall not be
transferred or sold to another individual or entity.

begin insert 1796.28. end insert   

(a) The Department of Justice shall maintain and
continually update pertinent criminal offender record information
of registered home care aides and shall inform the department of
subsequent reports received pursuant to Section 11105.2 of the
Penal Code. The department shall continually update the home
care aide registry pursuant to the actions required in this chapter.

(1) Registered home care aides and home care aide applicants
shall maintain a current mailing address with the department.

(2) Registered home care aides and home care aide applicants
shall inform the department of any new mailing address in writing
within 10 days of a change in address.

(b) Notwithstanding any other law, including Part 3
(commencing with Section 900) of Division 3.6 of Title 1 of the
Government Code, state officers or employees shall not be liable
for any damages caused by their conduct pursuant to this chapter
except for intentional acts or gross negligence.

begin insert 1796.29. end insert   

The department shall do both of the following in the
administration of the home care aide registry:

(a) Establish and maintain on the department’s Internet Web
site the registry of registered home care aides and home care aide
applicants.

(1) To expedite the ability of a consumer to search and locate
a registered home care aide or home care aide applicant, the
Internet Web site shall enable consumers to look up the registration
status by providing the registered home care aide’s or home care
aide applicant’s name, registration number, registration status,
registration expiration date, and Child Abuse Central Index status,
if applicable.

(2) The Internet Web site shall not provide any additional,
individually identifiable information about a registered home care
aide or home care aide applicant. The department may request
and may maintain additional information for registered home care
aides or home care aide applicants, as necessary for the
administration of this chapter, which shall not be publicly available
on the home care aide registry.

(b) Update the home care registry upon receiving notification
from a home care organization that an affiliated home care aide
is no longer employed by the home care organization.

 

Article begin insert 5. end insert   Renewal

 

begin insert 1796.31. end insert   

(a) To remain on the home care aide registry, a
registered home care aide shall renew his or her registration every
two years.

(1) A registered home care aide’s registration shall expire every
two years, on the anniversary date of the initial registration date.
If the registration is not renewed on or prior to its expiration date,
the registration shall be forfeited pursuant to subdivision (b) of
Section 1796.26.

(2) To renew a registration, the registered home care aide shall,
on or before the registration expiration date, request renewal by
submitting to the department the registration renewal application
form and paying the registration renewal application fee in the
amount determined by the department.

(b) Renewal of a registered home care aide’s registration is
conditioned on compliance with all of the following:

(1) Submitting a complete registration renewal application form
and payment of fees, both of which shall be postmarked on or
before the expiration of the registration.

(2) Continuing to satisfy the requirements set forth in this
chapter.

(3) Cooperating with the department in the completion of the
renewal process. Failure of the registered home care aide to
cooperate shall result in the withdrawal of the registration renewal
application by the department. For purposes of this section, a
failure to cooperate means that the information described in this
chapter and in any rules and regulations promulgated under this
chapter has not been provided, or has not been provided in the
form requested by the department, or both.

(c) A revoked registered home care aide’s registration is subject
to expiration as provided for in this section. If reinstatement of
the registered home care aide’s registration is approved by the
department, the individual, as a condition precedent to
reinstatement, shall pay a fee in an amount equal to the renewal
fee accrued at the time of its revocation.

 

Article begin insert 6. end insert   Licensure of Home Care Organizations

 

begin insert 1796.33. end insert   

Any individual who has submitted an application and
who possesses any one of the following identification cards may
initiate a background examination to be a licensed home care
organization:

(a) A valid California driver’s license.

(b) A valid identification card issued by the Department of Motor
Vehicles.

(c) A valid Alien Registration Card.

(d) In the case of a person living in a state other than California,
a valid numbered photo identification card issued by an agency
of the state other than California.

begin insert 1796.34. end insert   

In order to obtain a home care organization license,
the following individual or individuals shall consent to the
background examination described in Section 1796.23:

(a) The owner or owners of the home care organization, if the
owners are individuals.

(b) 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.

begin insert 1796.35. end insert   

(a) A person or 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 (b), shall not
do any of the following, unless it is licensed under this chapter:

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

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

(b) 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 an affiliated home care aide who provides home care
to clients.

begin insert 1796.36. end insert   

(a) Subject to the exceptions set forth in Section
1796.17, 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 registered
home care aide to a client in this state before obtaining a license
pursuant to this chapter. This shall be deemed “unlicensed home
care services.”

(b) Upon discovering 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 assess a civil penalty
of 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 copy of the written
notice of noncompliance to the individual or entity and to the
Attorney General or appropriate district attorney or city attorney.

(d) Upon receiving this notice, the Attorney General, district
attorney, or city attorney may 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, district attorney, or city attorney may apply for an
injunction.

(2) Impose the civil penalty described in subdivision (b).

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

begin insert 1796.37. end insert   

(a) A home care organization that has its principal
place of business in another state, in addition to the other
requirements of this chapter, before arranging for home care
services provided by an affiliated home care aide to a client in the
state, shall comply with all of the following:

(1) Have an office in California.

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

(3) Maintain all pertinent records of the operation in California
at the California office. All records shall be available to review,
copy, audit, and inspect by the licensing agency.

(b) If the home care organization is a foreign corporation,
foreign limited liability company, foreign limited partnership,
foreign association, or a foreign limited liability partnership, as
defined in Sections 170, 171, 171.03, 171.05, and 16101 of the
Corporations Code, before arranging for home care services
provided by an affiliated home care aide to a client in the state,
the home care organization shall have an office in California and
shall comply with both of the following:

(1) Register with the Secretary of State to conduct intrastate
business in California.

(2) Maintain all pertinent records of the operation in California
at the California office. All records shall be available to review,
copy, audit, and inspect by the licensing agency.

begin insert 1796.38. end insert   

The department may issue a home care organization
license to an individual or other entity that satisfies all of the
requirements set forth in this chapter, including all of the
following:

(a) Files a home care organization application, including the
fees required pursuant to Section 1796.49.

(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 affiliated 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, upon request, with a complete list
of its affiliated home care aides, and proof that each satisfies the
requirements of Section 1796.43.

(e) The owner or owners of the home care organization pass a
background examination, as required pursuant to Section 1796.34.

(f) The applicant does not have any outstanding fees or civil
penalties due to the department.

begin insert 1796.39. end insert   

(a) A home care organization licensee shall renew
the home care organization license every two years.

(b) Renewal shall be conditioned upon the licensee doing both
of the following:

(1) Submitting a complete home care organization licensee
renewal application form and payment of fees, both of which shall
be postmarked on or before the expiration of the license.

(2) Continuing to satisfy the requirements set forth in this
chapter, and cooperating with the department in the completion
of the home care organization licenses renewal process.

(c) Failure of the home care organization licensee to cooperate
may result in the withdrawal of the home care organization license
renewal application. “Failure to cooperate” means that the
information described in this chapter and in any rules and
regulations promulgated under this chapter has not been provided,
or not provided in the form requested by the department, or both.

 

Article begin insert 7. end insert   Home Care Organization Operating Requirements

 

begin insert 1796.41. end insert   

A home care organization licensee shall do all of the
following:

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

(b) Maintain and abide by a valid workers’ compensation policy
covering its affiliated home care aides.

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

(d) Report any suspected or known adult abuse as required by
Section 15630 of the Welfare and Institutions Code and suspected
or known child abuse as required by Sections 11164 to 11174.3,
inclusive, of the Penal Code. A copy of each suspected abuse report
shall be maintained and available for review by the department
during normal business hours.

begin insert 1796.42. end insert   

(a) Home care organizations that employ affiliated
home care aides shall ensure the affiliated home care aides are
cleared on the home care aide registry before placing the
individual in direct contact with clients. In addition, the home care
organization shall do all of the following:

(1) Ensure any staff person, volunteer, or employee of a home
care organization who has contact with clients, prospective clients,
or confidential client information that may pose a risk to the
clients’ health and safety has met the requirements of Section
1796.23 before being hired.

(2) Require home care aides to demonstrate that they are free
of active tuberculosis disease, pursuant to Section 1796.46.

(3) Immediately notify the department when the home care
organization no longer employs an individual as an affiliated home
care aide.

(b) This section shall not prevent a licensee from requiring a
criminal record clearance of any individual exempt from the
requirements of this section, provided that the individual has client
contact.

 

Article begin insert 8. end insert   Affiliated Home Care Aides

 

begin insert 1796.44. end insert   

(a) A home care organization licensee shall ensure
that prior to providing home care services, an affiliated home care
aide shall complete the training requirements specified in this
section.

(b) An affiliated home care aide shall complete a minimum of
five hours of entry-level training prior to presence with a client,
as follows:

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

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

(c) In addition to the requirements in subdivision (b), an
affiliated home care aide shall complete a minimum of five hours
of annual training. The annual training shall relate to core
competencies and be population specific, which shall include, but
not be limited to, the following areas:

(1) Clients’ rights and safety.

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

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

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

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

(d) The entry-level training and annual training on
department-approved job-related topics described in subdivisions
(b) and (c) may be completed through an online training program.

begin insert 1796.45. end insert   

(a) An individual hired to be an affiliated home care
aide on or after January 1, 2015, shall be submitted to an
examination 90 days prior to employment or within seven days
after employment to determine that the individual is free of active
tuberculosis disease.

(b) For purposes of this section, “examination” means a test
for tuberculosis infection that is recommended by the federal
Centers for Disease Control and Prevention (CDC) and that is
licensed by the federal Food and Drug Administration (FDA) and,
if that test is positive, an X-ray of the lungs. The aide shall not
work as an affiliated home care aide unless he or she obtains
documentation from a licensed medical professional that there is
no risk of spreading the disease.

(c) An affiliated 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.

(d) After submitting to an examination, an affiliated home care
aide whose test for tuberculosis infection is negative shall be
required to undergo an examination at least once every two years.
Once an affiliated home care aide has a documented positive test
for tuberculosis infection that has been followed by an X-ray, the
examination is no longer required.

(e) After the examination, an affiliated home care aide shall
submit, and the home care organization shall keep on file, a
certificate from the examining practitioner showing that the
affiliated home care aide was examined and found free from active
tuberculosis disease.

(f) The examination is a condition of initial and continuing
employment with the home care organization. The affiliated home
care aide shall pay the cost of the examination.

(g) An affiliated home care aide who transfers employment from
one home care organization to another shall be deemed to meet
the requirements of subdivision (a) or (c) if the affiliated home
care aide 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 active tuberculosis disease, or if it is verified
by the home care organization previously employing him or her
that it has a certificate on file that contains that showing.

 

Article begin insert 9. end insert   Revenues

 

begin insert 1796.47. end insert   

(a) (1) Administration of this program shall be fully
supported by fees and not civil penalties. Initial costs to implement
this chapter may be provided through a General Fund loan that
is to be repaid in accordance with a schedule provided by the
Department of Finance. The department shall assess fees for home
care organization licensure, and home care aide registration
related to activities authorized by this chapter. The department
may adjust fees as necessary to fully support the administration
of 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.

(2) A portion of moneys collected in the administration of this
chapter, as designated by the department, may be used for
community outreach consistent with this chapter.

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

begin insert 1796.48. end insert   

(a) The department may charge an application and
renewal fee to become a registered home care aide and to renew
a registered home care aide’s registration.

(b) The maximum fee shall not exceed the total actual costs,
which include, but are not limited to, of all of the following:

(1) The searches for criminal offender records and, if applicable,
Child Abuse Central Index checks performed by the Department
of Justice. The cost to check the criminal offender records and, if
applicable, child abuse information shall not subsidize the cost to
check the criminal or child abuse history of other persons by the
department who are not charged a fee by the Department of Justice.

(2) The cost incurred by the Department of Justice for the
searches of the records of the Federal Bureau of Investigation.

(3) The cost to the department to process the applications and
maintain the home care aide registry and perform the duties
required by this chapter and any rules and regulations promulgated
under this chapter.

(c) The fees collected shall be deposited into the Home Care
Fund pursuant to subdivision (b) of Section 1796.47.

begin insert 1796.49. end insert   

(a) A home care organization licensee shall pay the
following fees:

(1) A 24-month initial license fee, as prescribed by the
department, for a new home care organization licensee not
currently licensed to provide home care services in the state.

(2) Two-year renewal fee, as determined by the department,
based on the number of full-time equivalents (FTEs), including
paid personnel or contractors needed to oversee the enforcement
of this chapter.

(3) Other reasonable fees as prescribed by the department
necessary for the administration of this chapter.

(b) The fees collected shall be deposited into the Home Care
Fund pursuant to subdivision (b) of Section 1796.47.

 

Article begin insert 10. end insert   Complaints, Inspections, and Investigations

 

begin insert 1796.51. end insert   

In order to carry out the provisions of this chapter,
the department may establish procedures for the receipt,
investigation, and resolution of complaints against home care
organizations.

begin insert 1796.52. end insert   

(a) The department may review and, if it determines
necessary, investigate complaints filed against home care
organizations regarding violations of this chapter or any rules or
regulations promulgated under this chapter.

(b) The department shall verify through random, unannounced
inspections that a home care organization meets the requirements
of this chapter and the rules and regulations promulgated under
this chapter.

(c) An investigation or inspection conducted by the department
pursuant to this chapter may include, but is not limited to,
inspection of the books, records, or premises of a home care
organization. A home care organization’s refusal to make records,
books, or premises available shall constitute cause for the
revocation of the home care organization’s license.

(d) Other than maintaining the home care registry, the
department shall have no oversight responsibility regarding
registered home care aides.

begin insert 1796.53. end insert   

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

 

Article begin insert 11. end insert   Enforcement

 

begin insert 1796.55. end insert   

(a) A home care organization that operates in
violation of any requirement or obligation imposed by this chapter
or any rule or regulation promulgated under this chapter may be
subject to the fines levied or licensure action taken by the
department as specified in this chapter.

(b) When the department determines that a home care
organization is in violation of this chapter or any rules or
regulations promulgated under this chapter, 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, rule, 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 a 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) The department shall adopt regulations establishing
procedures for notices, correction plans, appeals, and hearings.

begin insert 1796.56. end insert   

Any fines and penalties collected pursuant to this
chapter shall be deposited into the Home Care Penalties
Subaccount, which is hereby created within the Home Care Fund
created pursuant to Section 1796.47. Moneys in this account shall,
upon appropriation by the Legislature, be made available to the
department for purposes of enforcing this chapter.

begin insert 1796.57. end insert   

It is a misdemeanor for a person to falsely represent
or present himself or herself as a home care aide applicant or
registered home care aide.

begin insert 1796.58. end insert   

Any person who violates this chapter, or who willfully
or repeated violates a rule or regulation promulgated under this
chapter, is guilty of a misdemeanor and, upon conviction thereof,
shall be punished by a fine not to exceed one thousand dollars
($1,000) or by imprisonment in a county jail for a period not to
exceed 180 days, or by both that fine and imprisonment.

begin insert 1796.59. end insert   

(a) Notwithstanding any other provision of this
chapter, the district attorney of every county, and city attorneys
in cities that have city attorneys who have jurisdiction to prosecute
misdemeanors pursuant to Section 72193 of the Government Code,
may, upon their own initiative or upon application by the
department or its authorized representative, institute and conduct
the prosecution of any action for violation within their county of
this chapter or a rule or regulation promulgated under this chapter.

(b) The civil, criminal, and administrative remedies available
to the department pursuant to this chapter are not exclusive, and
may be sought and employed in any combination as determined
by the department to enforce this chapter or a rule or regulation
promulgated under this chapter.

 

Article begin insert 12. end insert   Operation

 

begin insert 1796.61. end insert   

This chapter shall become operative on January 1,
2015.

begin insert 1796.62. end insert   

This chapter and any rules and regulations
promulgated pursuant to this chapter shall only be implemented
to the extent that funds are made available through an
appropriation in the annual Budget Act.

begin insert 1796.63. end insert   

The department shall adopt, amend, or repeal, in
accordance with Chapter 3.5 (commencing with Section 11340)
of the Government Code, any reasonable rules, regulations, and
standards as may be necessary or proper to carry out the purpose
and intent of this chapter and to enable the department to exercise
the powers and perform the duties conferred upon it by this
chapter, not inconsistent with any of the provisions of any statute
of this state. Notwithstanding the rulemaking provisions of the
Administrative Procedure Act (Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code), the department may implement and administer this chapter
through written directives, without taking regulatory action, subject
to the limitations provided in subdivision (b).

(a) The department shall post any proposed rules promulgated
under this section on its public Internet Web site no earlier than
10 calendar days prior to the effective date of the proposed rule,
which shall also include notification to the public regarding how
members of the public may comment, including the date on which
those comment must be received in order to be considered by the
department.

(b) The department’s authority to implement and administer
this section through written directives shall expire no later than
12 months after the written directives are promulgated and posted
on a public Internet Web site, or upon the effective date of
regulations promulgated in accordance with the Administrative
Procedure Act (Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code), whichever
occurs sooner.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert begin insert

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.

end insert

All matter omitted in this version of the bill appears in the bill as amended in the Senate September 5, 2013. (JR11)