BILL ANALYSIS �
AB 1217
Page A
Date of Hearing: April 30, 2013
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Mark Stone, Chair
AB 1217 (Lowenthal) - As Introduced: February 22, 2013
SUBJECT : Home Care Services Consumer Protection Act of 2013
SUMMARY : Enacts the Home Care Services Consumer Protection
(HCSC) Act of 2013. Specifically, this bill :
1)States findings and declarations of the Legislature as to the
need to regulate the home care provider industry through the
establishment of a statewide registration and oversight
system.
2)Establishes the Home Care Services Act of 2011, and requires
the Department of Social Services (DSS) to administer and
enforce the law.
3)Defines "home care aide" as an individual who provides home
care services to a client in the client's residence, and
includes a person who qualifies as a personal attendant as
defined by the Industrial Welfare Commission, but does not
include the following:
a) A family member, as defined; and
b) A person employed by a vendor or contractor of a
regional center or the Department of Developmental Services
(DDS) providing services to people with developmental
disabilities pursuant to the Lanterman Developmental
Disabilities Services Act (Lanterman Act) or the California
Early Intervention Services Act (Early Intervention Act)
when funding is provided through DDS and more than 50% of
the recipients of the organization are people with
developmental disabilities.
4)Defines "home care organization" (HCO) as an individual,
partnership, corporation, limited liability company, joint
venture, association, or other entity that arranges for the
provision of home care services by a home care aide to a
client in the client's residence, but does not include the
following:
AB 1217
Page B
a) A home health agency;
b) A licensed hospice;
c) A health facility;
d) A licensed home medical device retail facility;
e) A residential care facility for the elderly;
f) A vendor or contractor of a regional center or DDS
providing services to people with developmental
disabilities, as described in 3b above;
g) An employment agency as defined in Civil Code Section
1812.5095 that is not the employer of home care aides or
other workers who provide assistance with activities of
daily living; and
h) A county providing in-home supportive services pursuant
to the In-Home Supportive Services (IHSS) program.
5)Defines "home care services" as services provided by a home
care aid to a client who, because of advanced age or physical
or mental infirmity, cannot perform these services for himself
or herself, but does not include the services provided by:
a) A licensed home health agency;
b) A licensed hospice;
c) A licensed health facility;
d) A licensed residential care facility for the elderly;
e) The adherents of and in connection with the practice of
the religious tenets of any well recognized church or
denomination, so long as they do not otherwise engage in
the practice of nursing; or
f) Services provided pursuant to the IHSS program.
6)Defines "Employment Agency" as an agency that procures,
offers, refers, provides, or attempts to provide, but is not
the employer of, a home care aide who provides home care
AB 1217
Page C
services to clients and consumers in accordance with Civil
Code Section 1812.5095, as long as the agency does not employ
a home care aide or a person who assists with activities of
daily living to the consumer.
7)Defines a "Priority One Complaint" as a complaint of sexual
abuse that involves penetration, a complaint of physical abuse
that results in bodily injury, or one that results in the
death of a client due to suspicious circumstances.
8)Defines a "Priority Two Complaint" as a complaint of sexual
abuse that involves sexual behavior that does not involve
penetration, physical abuse that results in minor injury, and
a complaint of felony offenses.
Licensure
9)Requires, on or after July 1, 2014, non-exempted entities
providing home care services by a home care aide to obtain a
license pursuant to the Home Care Services Act of 2013 (HCSA),
and establishes civil penalties for violations of this
requirement.
10)Allows DSS to adopt rules and regulations to implement the
act; to investigate Priority One and Two Complaints against
home care aides not employed by a HCO; establish procedures
for the receipt, investigation and resolution of complaints;
maintain a registry on its Internet Web site of all certified
home care aides, containing limited information that includes
their employers, their certification status, and the status of
disciplinary actions against them; and, maintain a registry on
its Internet Web site of all licensed HCOs containing
specified information.
11)Requires DSS to issue an HCO license to an entity meeting
requirements, including, proof of liability insurance; proof
of workers' compensation coverage; and, background clearances
of the organization's owners.
12)Requires background clearances of the owners of HCOs, as
described, and requires DSS to request subsequent arrest
notification service from the Department of Justice (DOJ).
Requires DOJ to charge a fee to cover costs related to this
bill.
AB 1217
Page D
13)Authorizes DSS to deny a license if the background clearance
discloses a conviction for a felony or crime that is
substantially related to the qualifications, functions, or
duties of operating an HCO, and provides that the license
shall not be denied if, pursuant to applicable Penal Code
provisions, the applicant has obtained a certificate of
rehabilitation or the information or accusation against the
applicant has been dismissed.
14)Requires DSS, in determining whether or not to deny a license
based on a prior conviction, to consider specified factors
related to the nature and seriousness of the crime, its
relationship to the person's employment duties and
responsibilities, the person's post-conviction activities, the
time elapsed, the individual's compliance with conditions of
parole, probation, restitution or other sanctions, other
evidence of rehabilitation, employment history and employer
recommendations, and the circumstances surrounding the
commission of the offense demonstrating the unlikelihood of
repetition.
15)Requires DSS to provide notice, as specified, to the
applicant by personal service or registered mail if a license
application is denied based on a prior criminal conviction,
and specifies procedures for requesting and conducting an
administrative hearing.
16)Prohibits a public or private organization, except a county
providing IHSS services or other entity exempted from
licensing under the HCSA, from representing itself to be an
HCO, implying that it has a license to provide home care
services, referring to employee bonding in relation to such
services, or using the terms "health care organization," "home
care," "in-home care," or any combination of such terms in its
name, unless it is licensed pursuant to the HCSA.
17)Requires DSS to issue a notice of violation if it determines
that a home care aide is in violation of the HCSA and its
related regulations, as specified.
18)Allows DSS to investigate complaints against an employment
agency if it fails to comply with the HCSA and levy civil
penalties of up to $900 per day per violation.
Complaints, Inspections, and Investigations
AB 1217
Page E
19)Allows DSS to investigate complaints filed against HCOs and
home care aides.
20)Requires DSS to conduct random, unannounced inspections once
every five years to ensure compliance with the HCSA.
HCO Operating Requirements
21)Requires HCOs to comply with regulations promulgated by DSS
and adhere to other specified operating requirements.
22)Requires HCOs, with respect to home care aides employed by
the organization, to consult the DSS registry before hiring
the individual, ensure that he or she meets the requirements
for home care aides specified in the act, evaluate home care
aides, as provided, and ensure that, when providing services,
home care aides have access to a supervisor at all times and
wear an identification badge.
23)Requires HCOs to investigate complaints against a home care
aide made by a client or the client's family, and if the HCO
determines that the home care aide violated the HCSA, it shall
immediately notify DSS to take the appropriate action to
address the violation.
24)Requires HCOs to ensure that each of its home care aides
employed prior to January 1, 2015, are certified pursuant to
the HCSA by July 1, 2015.
25)Requires HCOs to immediately notify DSS when they no longer
employ a home health care aide to allow DSS to update its
Internet Web site.
26)Requires home care aides to demonstrate that they are free of
active tuberculosis, as specified, and to annually complete
not less than five hours of DSS-approved job-related training,
and prohibits home care aides from accepting money or property
from a client without written permission of the HCO.
Employment Agency Insurance
27)Requires employment agencies that are exempt from licensure
as an HCO to maintain general and professional liability
insurance of $1,000,000 per occurrence and $3,000,000 in the
AB 1217
Page F
aggregate.
Client Rights
28)Establishes requirements on HCOs to protect clients' rights,
including the following:
a) Advising clients of changes in the client's plan for
home care services; and,
b) Prior to arranging for the provision of home care
services to a client:
i) Distributing to the client its advance directive
policy and a summary of applicable state law;
ii) Advising the client of its policy on disclosure of
client records;
iii) Informing the client of the types and hours of
available home care services;
iv) Advising and updating the client, orally and in
writing, concerning applicable payment sources, including
Medi-Cal or Medicare; and
v) Having a written agreement with the client that
includes the cost of and hours during which home care
services will be provided, and reference to personal
attendant requirements, if applicable.
29)Delineates home care client rights, including the rights to
have the client's property treated with respect, voice
grievances free of reprisal, be informed and participate in
the planning of home care services, and confidentiality of the
client's personal information.
Home Care Aides
30)Requires DSS to certify any person hired after January 1,
2014 as a home care aide to be within 90 days of the date of
hire and that any person referred by an employment agency who
provides assistance with activities of daily living be
certified prior to any referral.
AB 1217
Page G
31)Establishes training requirements for home care aide
certification, including requiring home care aides to complete
five paid hours of DSS approved training on job-related
topics, training curricula that are developed with input from
consumer and worker representatives, require instruction by
qualified instructors, and are approved by DSS.
32)Requires that DSS set a fee for a two-year certification to
be paid for by the home care aide.
33)Requires applicants for certification to submit to an
examination to determine if he or she is free of active
tuberculosis.
34)Prohibits, beginning January 1, 2015, an HCO from hiring an
individual as a home care aide unless the individual completes
an interview and meets specified job requirements, and
requires the individual to provide proof of certification.
35)Authorizes DSS to issue a temporary home care aide
certificate if it determines that required training is not
available in an applicant's county, and provides that required
entry-level and annual training may be completed through an
on-line training program.
36)Requires an applicant for employment as a home care aide to
consent to a background clearance, and prohibits a home care
aide employed on or after January 1, 2015, from providing home
care services until he or she passes the required background
clearance.
37)Requires a background clearance through DOJ, as described, on
individuals hired as home care aides, unless the individual
holds a valid, unexpired license or registration in a
health-related field that requires background checks; requires
DSS to request subsequent arrest notification service from
DOJ; and, requires DOJ to charge a fee to cover the actual
costs related to these activities.
38)Requires that DSS deny certification to an individual
convicted or incarcerated for conviction, within 10 years, for
child abuse, senior or dependent adult abuse, a violent or
serious felony as defined in the Penal Code, or a felony
offense for which the person is required to register as a sex
offender, unless the individual has obtained a certificate of
AB 1217
Page H
rehabilitation, or the information or accusation has been
dismissed, pursuant to specified provisions of the Penal Code.
39)Requires DSS to provide notice, as specified, to the
applicant for certification by personal service or registered
mail if a license application is denied based on a prior
criminal conviction, and specifies procedures for requesting
and conducting an administrative hearing.
40)Provides that an applicant for certification convicted of a
disqualifying offense may seek from DSS a general exception to
the exclusion, and that DSS shall consider the same factors
applicable to the determination of whether to deny a license
to a prospective licensee based on a prior conviction.
Specifies notice requirements and administrative hearing
procedures in the event a request for a general exception is
denied.
41)Requires an employment agency to ensure that any person it
refers to provide home care services or assistance with
activities of daily living has been certified prior to
referral.
Revenues
42)Requires DSS to assess licensure and certification fees in
amounts sufficient to cover the costs of administering the
HCSA.
43)Prohibits the use of General Fund (GF) moneys for purposes of
funding activities under the HCSA unless specifically
transferred or appropriated by the Legislature.
44)Establishes the Home Care Organization and Home Care Aide
Fund within the State Treasury and requires that licensure and
certification funds, as well as fines and penalties, be
deposited into the Fund, from which funds shall, upon
appropriation by the Legislature, be made available to DSS to
administer the HCSA.
45)Requires DSS to report on all costs for home care licensure
and home care aide certification activities, as specified, and
to submit the report to the Legislature and make it available
to the public on its Internet Web site.
AB 1217
Page I
Enforcement and Penalties
46)Establishes requirements for notifying HCOs and employment
agencies of violations of the HCSA or rules promulgated under
the act, and authorizes DSS to impose a fine of up to $900 per
violation per day based on consideration of specified factors.
47)Requires DSS, in consultation with a working group of
affected stakeholders, to adopt regulations establishing
procedures for notices, correction plans, appeals, and
hearings related to enforcement of HCSA requirements.
48)Requires DSS to issue a notice of violation to a home care
aide found to be in violation of the HCSA, which shall specify
the nature of the violation, any action DSS may take as a
result of the violation, and include information about their
right to a hearing.
49)Requires collected penalties to be deposited into the Home
Care Organization and Home Care Aide Penalties Subaccount,
which is created within the existing State Health Facilities
Citation Penalties Account, and provides that, upon
appropriation by the Legislature, funds in the subaccount
shall be made available to DSS for purposes of enforcing the
HCSA.
EXISTING LAW
1)Provides for the licensing and regulation of various
nonmedical residential and nonresidential community care
facilities by DSS and provides for the licensing and
regulation of healthcare facilities by the Department of
Public Health (DPH).
2)Establishes the IHSS program, administered at the state level
by DSS, to provide personal services and home care for
eligible poor aged, blind and disabled individuals.
3)Establishes the California Community Care Facilities Act
(CCFA) to provide a comprehensive statewide service system of
quality community care for people who have a mental illness, a
developmental or physical disability, and children and adults
who require care or services by a facility or organization.
4)Establishes the California Residential Care Facilities for the
AB 1217
Page J
Elderly (RCFE) Act, which requires facilities that provide
personal care and supervision, protective supervision or
health related services for persons 60 years of age or older
who voluntarily choose to reside in that facility to be
licensed by DSS.
5)Prohibits any person, firm, partnership, association,
corporation or public agency from establishing, operating,
managing, conducting or maintaining a CCF or a RCFE without a
valid licensed provided by DSS.
6)Provides that any person who violates the CCFA or the RCFE Act
shall be guilty of a misdemeanor and upon conviction shall be
fined no more than $1,000, imprisoned in county jail for up to
one year, or both.
FISCAL EFFECT : Unknown
COMMENTS :
Medical and nonmedical home care services
California law currently provides for two types of in-home care
for the elderly, disabled, and people in need of home-based
care; through In-Home Supportive Services (IHSS) and Home Health
Agencies (HHA).
Licensed by to the California Department of Public Health (DPH),
HHAs provide an array of medical and non-medical care and
services, including skilled nursing services, based upon a plan
of treatment prescribed by the patient's physician or surgeon.
These services can range in types of care from regular
day-to-day home care services to significant medical care,
including the administration of intravenous medications and
other services that would otherwise be provided in a skilled
nursing facility (SNF). In order to provide "home health aide
services," home health aides must undergo specified training and
be certified by DPH. HHAs help to provide patients with the
opportunity to live as comfortably as possible at home while
receiving necessary medical care as prescribed by their
physician rather than in a medical facility.
IHSS is a county operated service, in coordination with DSS,
which provides in-home care to low-income elderly or disabled
persons. Although similar in the provision of non-medical care,
IHSS differs from HHAs in that it provides support services and
AB 1217
Page K
some "paramedical services" but often not substantial, SNF-level
medical services in the home. The focus of IHSS is to provide
services that make it possible for a patient (or recipient) to
live independently at home while receiving basic personal care
assistance and domestic services from an IHSS provider, in
addition to help with administering medications, assistance with
prosthetic devices, and bowel, bladder and menstrual care.
Current licensing standards for community care providers
DSS Community Care Licensing Division (CCLD) is responsible for
carrying out the duties established by the California Community
Care Facilities Act and other related licensing acts in the
Health and Safety Code. It is their responsibility to:
Process license applications;
Provide monitoring, oversight and technical assistance;
Conduct facility and organizational visits;
Pursue investigations of complaints; and
Enforce penalties, fines and administrative legal action
Prior to 2003, CCLD was required to visit most licensed
organizations once per year and family child care homes once
every three years. However, due to the state's ongoing budget
deficit, the state eliminated these requirements in the 2003-04
budget and limited visits to 10% of facilities based upon their
poor performance history.
For those residential facilities not subject to annual
inspections, CCLD is currently required to conduct comprehensive
compliance inspections of a 30% random sample of facilities each
year, with each facility required to be visited as least once
every 5 years. There are additional inspection requirements for
new facilities or when changes occur to the license, which
includes pre-licensing and post-licensing inspections that help
to ensure that a new licensee starts off correctly.
Importance of unannounced licensing visits
Unannounced licensing visits are of fundamental importance in
protecting the health and safety of children and adults
receiving care through facility or home-based care. They ensure
that basic health and safety requirements are being met and also
AB 1217
Page L
provide opportunities for increased technical assistance to
programs, enhanced information sharing, the development of best
practices, and ultimately lead to an improvement in the quality
of life for clients under care.
Numerous studies have also been conducted, which document a
connection between increased licensing visits with a decrease in
accidents requiring medical attention<1> and greater provider
compliance with health and safety standards.<2>
Additionally, regular and frequent unannounced inspection visits
allow for state and local agencies to provide relevant and
up-to-date information to the public on the quality of care
being provided to consumers. Further, DSS also stated, in a
2010-11 Spring Finance Letter, that "regular and frequent
inspections of facilities improve client health and safety as
evidenced by reductions in the percentage of the more serious
imminent risk to total citations." Specifically, "more annual
inspections equates to better quality of care" and "more annual
inspections equates to a smaller risk to the health and safety
of clients."
Regulating the home care market
This measure seeks to regulate what is considered to currently
be the home care industry, which has existed for many years, but
has begun to increase as the nation's elderly population expands
and the demand for in-home care increases to allow individuals
to live comfortably at home with the assistance of a day-to-day
home care provider. Home care providers provide basic daily
non-medical living assistance, such as cooking, cleaning,
dressing, feeding, and other regular daily needs. However,
unlike their IHSS and HHA counterparts, there are no
requirements in current law that require home care aides to have
minimum levels of training, undergo a criminal background check,
or comply with basic standards of service.
---------------------------
<1> Fiene, R. (2002). 13 indicators of quality child care:
Research update. U.S. Department of Health and Human Services,
Office of Assistant Secretary for Planning and Evaluation, at
http://aspe.hhs.gov/hsp/ccquality-ind02/
<2> Koch Consulting. (2005). Report on effective legal
proceedings to ensure provider compliance: Prepared for the
State of Washington Department of Social and Health Services.
http://www.naralicensing.drivehq.com/publications/archives/nara/E
ffective_Legal_Proceedings.pdf
AB 1217
Page M
Due to the lack of a regulatory structure and related
enforcement, there is no framework or definition for what is
considered a home care aide. Although the title "home care
aide" implies a level of expertise and integrity associated with
a minimum level of care, any person may represent him or herself
as a home care aide. In some instances, individuals may solicit
their services through notifications posted online on websites
such as Craigslist or in newspaper classified ads. This can
place consumers who are in need of day-to-day living assistance
services in the home in potentially vulnerable situations, as
there are little to no existing legal requirements and
protections established. In some respects, it is not
unreasonable to associate home care aides unaffiliated with
reputable or established organizations or who operate as
independent contractors as part of an underground home care
industry whereby the public rests their faith in the hope that
the elderly and disabled are receiving adequate and beneficial
care in the home.
Regarding established agencies and associations that currently
employ home care aides, there is an expectation and desire to
develop a regulatory framework in anticipation of public demand
for greater standards and accountability. AB 1217, as proposed,
seeks to regulate the entirety of the home care industry,
addressing home care organizations and the home care aides they
employ, agencies that provide referrals for contract based home
care aides and independent home care aides.
Certification and registry
This measure seeks to require home care aides to have their
names, certification information and geographic location, as
well as any information relating to disciplinary action taken
against them, posted on the DSS website. Although it also
prohibits any home care aide's personal information from being
identifiable from the information required to be posted on the
internet, it is not specific as to what geographic location
means. The intent of the public posting of a home care aide's
information appears intended to provide potential clients the
opportunity to search and review potential home care aides
online. This can help to provide an effective consumer based
tool to identify certified home care aides. However, it can
also have the impact of placing the home care aide's personal
safety at risk, including potential identity theft.
AB 1217
Page N
Should this committee pass this measure, it should consider
whether the bill should be amended to:
a) Limit the time period a home care aide employed prior to
enactment of the legislation should have to comply with the
background check clearance requirements from one year to
six months; and
b) Limit the type of information that is required to be
posted publicly on the DSS' website in order to balance the
privacy of the home care aide with the need to provide the
client with sufficient information to identify potential
home care aides.
c) Require minimum but more specific training requirements
for home care aides, such as client rights and safety,
universal health precautions, emergency procedures, living
skills, abuse and neglect, personal hygiene and safe
transport of a client.
Need for the bill
Writing regarding the need for the bill, the author states:
AB 1217 is about consumer protection. It requires all home
care agencies to be licensed by the Department of Social
Services and requires all home care aides, whether they
work for an agency or operate as an independent contractor,
to be certified - complete with a background check, minimum
training standards, and regular tuberculosis screenings.
Twenty-three other states, including Florida, Illinois, New
York, Oregon, Pennsylvania, Texas, and Washington already
have similar laws in place. AB 1217 simply ensures that
all consumers of home care services in California have
access to quality care from properly screened and trained
caregivers, whether they receive services through a public
or private entity.
Writing in support of this measure, the California Commission on
Aging, which also supports AB 322 (Yamada), writes:
California is long overdue in establishing home care
regulation. AB 1217 will better align the state's
oversight of home care providers with that of 23 other
states that have already taken these critical steps. The
AB 1217
Page O
comprehensive procedures established by the bill will
assure that home care agencies and home care aides have
completed steps toward licensure or certification and that
their ongoing compliance can be monitored.
AB 1217
Page P
Concerns and Opposition
Several home care organizations have registered their opposition
to AB 1217 while referencing their support for AB 322 (Yamada).
This committee passed out AB 322 on a 5 - 1 vote at its April
16, 2013 hearing. The opposition writes that the establishment
of registries for home care organizations and home care aides
would "dramatically increase the workload" for DSS and their
agencies, and that "as written, the legislation would make it
very difficult for home care agencies to provide consumers with
affordable care."
RECOMMENDED AMENDMENTS
1.On page 5, line 8 delete ""organization," or" and insert
"and"
2.On the following pages and lines, before "organization" insert
"home care"
i. Page 9, line 8
ii. Page 10, line 6
iii. Page 13, line 16
iv. Page 13, line 18
v. Page 13, line 38
vi. Page 14, line 19
vii. Page 14, line 22
viii. Page 14, line 31
ix. Page 15, line 10
x. Page 19, line 5
xi. Page 19, line 8
xii. Page 22, line 7
xiii. Page 22, line 14
xiv. Page 22, line 18
1.On page 18, lines 14 after "regulation" insert the following
language:
, which shall include but not be limited to the following
areas:
(1) Client 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.
AB 1217
Page Q
(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.
2.On page 21, line 27 delete "January 1, 2015" and insert "July
1, 2014"
RELATED LEGISLATION
AB 322 (Yamada) - Establishes the Home Care Services Act of 2013
(HCSA) to license and regulate only home care organizations
providing services for the elderly, frail and persons with
disabilities. This measure is currently in the Assembly
Appropriations Committee.
AB 987 (Maienschein) - Requires the Secretary of the State and
Consumer Services Agency to apply for the United States
Department of Health and Human Services' Personal and Home Care
Aide Training Program Grant under the Affordable Care Act. This
measure is currently in the Assembly Human Services Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Senior Legislature (CSL)
DonningtoN Home Care
Congress of California Seniors
SEIU
California Commission on Aging (CCoA)
Opposition
Absolute Health Care
ACCREDITED (The Accredited Family of Home Care Services)
Care to stay Home
Comfort Keepers
Home Care Association of America
Home Instead Senior Care
La Jolla Nurses Homecare
Pacific Coast Home Care
Right at Home
California Association for Health Services at Home
AB 1217
Page R
Analysis Prepared by : Chris Reefe / HUM. S. / (916) 319-2089