BILL ANALYSIS Ó 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