BILL NUMBER: AB 1217 CHAPTERED
BILL TEXT
CHAPTER 790
FILED WITH SECRETARY OF STATE OCTOBER 13, 2013
APPROVED BY GOVERNOR OCTOBER 13, 2013
PASSED THE SENATE SEPTEMBER 12, 2013
PASSED THE ASSEMBLY SEPTEMBER 12, 2013
AMENDED IN SENATE SEPTEMBER 11, 2013
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
INTRODUCED BY Assembly Member Lowenthal
(Coauthor: Assembly Member Rendon)
(Coauthors: Senators Beall, Padilla, and 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, Lowenthal. Home Care Services Consumer Protection Act.
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, 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.
This bill would require the department to establish and
continuously update a home care aide registry, which would include
specified information relating to home care aide 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.
The bill would require the department to impose various fees to be
deposited in the Home Care 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.
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 bill would also provide
that any person who violates these provisions or willfully or
repeatedly violates 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.
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.
This bill would provide that no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. 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.
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) "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 2. Registry and Exemptions
1796.14. (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) 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
(d) (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.
1796.15. 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.
1796.16. 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).
1796.17. 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 3. Home Care Aide Applicants
1796.19. (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.
(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 4. Registration
1796.21. A registered home care aide shall be 18 years of age or
older.
1796.22. 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.
1796.23. (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.
(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.
1796.24. (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.
1796.25 (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.
1796.26. (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.
1796.28. (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.
1796.29. 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, and
registration expiration date.
(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 5. Renewal
1796.31. (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 6. Licensure of Home Care Organizations
1796.33. 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.
1796.34. 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.
1796.35. (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.
1796.36. (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.
1796.37. (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) 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.
1796.38. 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.
1796.39. (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 7. Home Care Organization Operating Requirements
1796.41. 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.
1796.42. (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 1796.45.
(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 8. Affiliated Home Care Aides
1796.44. (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.
1796.45. (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 9. Revenues
1796.47. (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.
1796.48. (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 performed by the
Department of Justice. The cost to check the criminal offender
records shall not subsidize the cost to check the criminal 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.
1796.49. (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 10. Complaints, Inspections, and Investigations
1796.51. 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.
1796.52. (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.
1796.53. 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 11. Enforcement
1796.55. (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.
1796.56. 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.
1796.57. 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.
1796.58. 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.
1796.59. (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 12. Operation
1796.61. This chapter shall become operative on January 1, 2015.
1796.62. 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.
1796.63. 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.
SEC. 2. 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.