BILL ANALYSIS                                                                                                                                                                                                    Ó






                                  SENATE HUMAN
                               SERVICES COMMITTEE
                          Senator Leland Y. Yee, Chair


          BILL NO:       AB 1217                                      
          A
          AUTHOR:        Lowenthal                                    
          B
          VERSION:       June 18, 2013
          HEARING DATE:  June 25, 2013                                
          1
          FISCAL:        Yes                                          
          2
                                                                      
          1
          CONSULTANT:    Sara Rogers                                  
          7
                                        

                                     SUBJECT
                                         
                       Home Care Organizations: Licensure

                                     SUMMARY  

          Establishes the Home Care Services Consumer Protection Act  
          of 2013 to provide for the licensure and regulation of home  
          care organizations and the certification of home care  
          aides.

                                     ABSTRACT  

           Existing Law

           1)Establishes the California Community Care Facilities Act,  
            which provides for the licensing and regulation of  
            community care facilities providing non-medical  
            residential care, day treatment, and adult day care under  
            the Department of Social Services (DSS). (HSC 1500 et  
            seq.)  


           2)Provides for the licensing and regulation of health care  
            facilities providing diagnosis, care, prevention, and  
            treatment of human illness, physical or mental, to which  
                                                         Continued---



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            more than one person is admitted for a 24-hour stay or  
            longer. (HSC 1250 et seq.)  


           3)Provides for the licensing and regulation of home health  
            agencies and home health aides providing skilled nursing  
            services to patients in their home residence. (HSC 1725  
            et seq.)  


           4)Establishes the In-Home Supportive Services (IHSS)  
            program to provide in-home domestic and personal care  
            services for aged, blind or disabled individuals living  
            at or below the poverty level for the purpose of enabling  
            IHSS consumers to avoid institutionalization and remain  
            safely in their homes with supportive services. (WIC  
            12300 et seq.)  


           5)Requires prospective IHSS providers to undergo a criminal  
            background check and establishes two tiers of  
            exclusionary crimes. (WIC 12301.6. 12305.81 and 12305.87)


          6)Permits an IHSS consumer or any employer of an unlicensed  
            in-home care provider to an aged or disabled consumer, to  
            request a criminal background check for the provider and  
            requires county welfare agencies to regularly inform the  
            consumer of this right (WIC 15660).


           This bill


           1)Establishes the Home Care Services Consumer Protection  
            Act of 2013.


          2)Defines "home care aide" to mean an individual who  
            provides home care services to a client in the client's  
            residence.


          3)Defines "home care services" to include bathing,  
            dressing, feeding, exercising, personal hygiene and  




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            grooming, transferring, ambulating, positioning,  
            toileting and incontinence care, assisting with  
            medication that the client normally self-administers,  
            housekeeping, meal planning and preparation, laundry,  
            transportation, correspondence, making telephone calls,  
            shopping and companionship.


          4)Defines "home care services" to exclude services provided  
            by a licensed home health agency, a licensed hospice,  
            services provided under the In Home Supportive Services  
            program, services authorized to be provided by a licensed  
            residential care facility for the elderly (RCFE) and care  
            provided by religious institutions.


          5)Requires home care organizations to obtain a license from  
            DSS prior to arranging for the provision of home care  
            services. Provides that the license shall be issued for  
            two years and that a violation shall be punishable by a  
            fine of $900/day.


          6)Requires DSS to issue a two-year license to a home care  
            organization that has satisfied the following  
            requirements:


                     Submitted proof of general and professional  
                 liability insurance of one million dollars per  
                 occurrence and three million dollars in the  
                 aggregate.
                     Submitted proof, as specified, of a valid  
                 workers compensation policy covering home health  
                 aides. 
                     Provided DSS with a complete list of home  
                 health aides and proof that each meets conditions of  
                 DSS certification.
                     The owner or owners have passed a background  
                 clearance, as specified.


          1)Requires DSS to verify that a home care organization is  
            in compliance with licensure through random unannounced  
            inspections at least once every five years and provides  




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            that such inspections may include an inspection of the  
            books, records, and premises of a home care organization  
            and direct observation of the provision of home care  
            services in the client residence, subject to client  
            consent.


          2)Requires, any person hired as a home health aide to be  
            certified by DSS prior to being hired, and requires  
            certification to include the following:


                     Completion of minimum training requirements of  
                 at least five hours of entry-level training  
                 comprised of two hours of orientation training,  
                 three hours of safety training, as specified, other  
                 training related to core competencies and population  
                 specific competencies, as specified.
                     Completion of a background clearance, as  
                 specified.
                     Submission to an examination to determine if he  
                 or she is free of tuberculosis. 


          1)Requires a home care organization, prior to hiring a home  
            health aide, to ensure the health aide has complied with  
            the following:


                     Completed an individual interview.
                     Provided at least two work- or school-related  
                 references, or for an individual with no work  
                 experience, two character references from  
                 non-relatives of the aide. Requires the home care  
                 organization to verify these references.
                     Demonstrated that he or she possesses  
                 sufficient language skills to read and understand  
                 instructions, prepare and maintain written reports  
                 and records and communicate with a client.
                     Provided proof of certification as a home  
                 health aide.


          1)Additionally, requires a home care organization to do all  
            of the following:




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                     Consult the department's registry, if  
                 available, prior to placing an aide in direct  
                 contact with a client.
                     Investigate complaints made by a client, or a  
                 client's family member or guardian, to document the  
                 existence and resolution of those complaints, and to  
                 immediately notify the department if a home care  
                 aide is found to be in violation of conditions of  
                 certification.
                     Evaluate home care aides as follows:

                     i.          Conduct an annual assessment of the  
                      performance and effectiveness of each aide  
                      including at least one observation of the aide  
                      in the client residence, subject to client  
                      consent,
                     ii.         Every 90 days, supervise each aide  
                      in the residence of the client, subject to the  
                      client consent. Provides that this supervision  
                      shall not be billed to the client, and
                     iii.        Ensure that at all times an aide has  
                      access to a supervisor.

                     Require a home care aide to wear a badge that  
                 includes, in 12-point type or larger, information  
                 including the aide's name, photograph, and  
                 certification number; and the name of the home care  
                 organization and the license expiration date.
                     Require home care aides to demonstrate they are  
                 free of active tuberculosis.
                     Require aides to complete the 5-hour training  
                 requirement annually.
                     Prohibit aides from accepting money or property  
                 from a client without written permission from the  
                 home care organization.
                     Immediately notify the department when the home  
                 care organization no longer employs the aide.
                     Post its license conspicuously in its place of  
                 business.
                     Operate in a commercial space that complies  
                 with local zoning ordinances.
                     Have plans and procedures in place for the  
                 following:




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                     i.          In the event of emergencies or  
                      natural disasters.
                     ii.         In the event that a home care aide  
                      scheduled to provide services becomes  
                      unavailable.
                     iii.        A policy regarding advance  
                      directives.
                     iv.         Receipt and disbursement polices for  
                      expenditures made on behalf of a client to  
                      ensure that financial abuse does not occur.
                     Maintain a valid workers' compensation policy  
                 covering aides.
                     Maintain an employee dishonesty bond, including  
                 third party coverage, with a minimum limit of  
                 $10,000 dollars.


          1)Permits DSS to establish procedures for the receipt,  
            investigation and resolution of complaints and to  
            investigate priority one and priority two complaints for  
            home care organizations and aides not employed by a home  
            health organization. 


          2)Establishes two categories of complaints against a home  
            care organization or home care aide including: a  
            "priority one complaint" relating to a sexual abuse  
            involving penetration or physical abuse involving great  
            bodily injury, as specified, and a "priority two  
            complaint" that involves sexual abuse not involving  
            penetration, physical abuse that results in minor injury,  
            or specified felony offenses including robbery, arson,  
            grand theft and chemical restraint.


          3)Establishes a series of client rights, which require a  
            home care organization to do all of the following:


                     Advise a client of any change in the client's  
                 plan for home care services.
                     Prior to arranging for services:

                     i.          Distribute a copy of the client's  
                      advance health care directive to the client  




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                      along with a written summary of state law, 
                     ii.         Advise the client about the  
                      organization's policy regarding disclosure of  
                      client records.
                     iii.        Inform the client of the types and  
                      hours of available home care services. 
                     iv.         Inform the client both orally and in  
                      writing of the home care services that are or  
                      are not covered by Medi-Cal or Medicare.
                     v.          Inform the client of any change to  
                      that information within 30 days.
                     vi.         Have a written agreement with the  
                      client that includes the cost of and the hours  
                      during which home care services will be  
                      provided to the client.


                                  FISCAL IMPACT  


          The Assembly Appropriations Committee estimates one-time  
          costs of $30 million related to establishing the new  
          regulatory system and initial inspections. The analysis  
          notes that in order for these costs to be fully funded by  
          licensing fees, each agency would need to pay approximately  
          $9,500 in an initial licensing application fee.  
          Additionally, the committee estimates that DSS licensure  
          and enforcement costs would be approximately $5 million,  
          noting that the bill requires licensing and certification  
          fees to cover the ongoing costs. The committee further  
          estimates General Fund costs associated with reimbursing  
          the Department of Justice to perform background checks to  
          be $251,000 in 2013-2014, $536,000 for 2014-2015, and  
          $132,000 in 2015-16.

                            BACKGROUND AND DISCUSSION


           According to the author, the number of California residents  
          aged 85 and older will double to more than 1.3 million by  
          2030. The author states that many older adults, facing  
          chronic conditions and functional limitations, will require  
          the provision of medical and non-medical services in their  
          homes. The author notes that individuals and organizations  
          providing skilled nursing services at a person's residence  




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          are required to be licensed, however for non-medical  
          in-home personal care services, only the publicly funded  
          service programs require providers to pass a background  
          check or meet basic training standards.


          The author states that approximately 1,200 privately-funded  
          homecare agencies operate in California with a business  
          license and that an unknown number of independent home care  
          aides provide services without any oversight or regulation.  
          The author states that this bill would require all home  
          care aides to be certified and that this bill ensures that  
          all consumers of home care services have access to quality  
          care from properly screened and trained caregivers, whether  
          they receive services through a public or private entity.


          The Home Care Association of California and Maxim  
          Healthcare Services, Inc. write in opposition to the bill,  
          expressing their support for licensure in concept, but  
          opposition to this bill as drafted. Specifically, both  
          state concerns with the DSS-maintained registry mandated in  
          the bill due to privacy concerns, the availability of  
          personal information on a website and potential costs.  
          Additionally, Maxim Healthcare Services and the California  
          Association for Health Services at Home write that the bill  
          as drafted requires the maintenance of two separate  
          registries - one for certified aides and another for home  
          care agencies - that would make publicly available  
          information related to disciplinary actions taken against  
          the aide, regardless of who accessed the information or  
          whether the disciplinary actions had been substantiated.  
          Maxim additionally writes in opposition to proposed  
          mandatory annual training requirements, which it describes  
          as vague. 


           Elder Abuse and Home Care Providers


           Overall, there is little published research on the  
          prevalence of elder abuse inflicted by non-medical home  
          care aides. A 2011 report published by the California  
          Senate Office of Oversight and Outcomes provides an  
          anecdotal review of elder abuse incidents occurring in the  




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          growing home care industry. It highlights the absence of  
          routine background checks for caregivers unaffiliated with  
          a home care agency (who often advertise through online  
          websites such as Craigslist) and the lack of effective  
          background checks by some home care agencies.


          The report notes that most Californians are unaware of  
          their right to request a background check from the  
          Department of Justice, and to request assistance from their  
          local public authority to assist private purchasers of home  
          care services in obtaining background checks on prospective  
          caregivers. It also notes that public authorities  
          themselves were unaware of their statutory role to assist  
          private purchasers of home care services.


          According to the report, effective criminal record  
          screenings of home care aides would help protect consumers,  
          since "more than a quarter of caregivers accused or  
          convicted of crimes that we identified from news accounts  
          had committed previous offenses." Anecdotally, the report  
          describes numerous cases of caregivers stealing personal  
          property and money, the value of which ranged from tens of  
          thousands to even hundreds of thousands of dollars, from  
          consumers who were unaware of their ability to request and  
          receive a criminal background check on prospective aides.  
          In 13 of the 17 cases, the offender had a prior criminal  
          record. Additionally, the report reviewed the criminal  
          histories of potential caregivers advertising on Craigslist  
          and found multiple caregivers who had committed commercial  
          burglary, narcotics trafficking and prostitution.


          In the case of home care agencies, the report anecdotally  
          describes several court cases involving elder abuse  
          perpetrated by home care aides employed by home care  
          agencies whose background checks and screens were  
          incomplete. While some home care agencies are certified  
          through their private association, the California  
          Association for Health Services at Home, the report states  
          that more than 80 percent of agencies are not certified  
          through the association.  

            Licensing Standards 




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           Current law generally provides for the Department of Public  
          Health (DPH) to license or certify facilities,  
          organizations and individuals that provide clinical medical  
          services, whether in a facility or in a patient's  
          residence. Such services range from minor medical care to  
          intensive skilled nursing services. Home health providers  
          are required to complete a minimum of 75 hours of training  
          and complete a background check. 

          Community care facilities providing non-clinical services  
          to elderly or disabled consumers, are subject to licensure  
          and regulation by DSS, however home care providers serving  
          consumers at home are not subject to licensure, whether  
          they provide care under the IHSS program or through private  
          pay.


          Within DSS, the Community Care Licensing Division is  
          responsible to fulfill licensing and regulatory duties. In  
          response to a significant backlog and the state budget  
          crisis, the state scaled back regulatory oversight of  
          community care facilities and permitted the Department to  
          target high priority facilities using an evidence-based  
          method of outcome indicators intended to identify poor  
          performing facilities.


           In Home Support Services Program

           California's In Home Supportive Services (IHSS) program is  
          the state's primary community-based long-term service,  
          providing in-home domestic and personal care services for  
          448,000 aged, blind or disabled individuals living at or  
          below the poverty level. The purpose of IHSS is to enable  
          seniors and persons with disabilities to remain safely in  
          their homes and avoid institutional care through the  
          provision of a specified number of assistance hours  
          provided by a home care worker under the direction of the  
          consumer. The program is administered locally by counties  
          and county public authorities under the direction and  
          regulation of DSS. There are approximately 386,000  
          providers.





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          Under the program, the state participates in wages up to  
          $11.50 per hour and for some providers, up to $.60 per hour  
          for health benefits. In order to qualify as a provider  
          under the program, a prospective caregiver must submit to a  
          criminal background check. California statute establishes  
          two tiers of crimes for the purposes of determining  
          eligibility as a provider (WIC 12305.81 and 12305.87). The  
          first tier, pursuant to WIC 12305.81, excludes without  
          exception any provider applicant convicted within the last  
          10 years for any of the following:


                     Specified abuse of a child (Penal Code section  
                 273a)
                     Abuse of an elder or dependent adult (PC  
                 section 368)
                     Fraud against a government health care or  
                 supportive services program 


          The second tier, which pursuant to WIC 12305.87 may be  
          waived or exempted include:


                     A violent or serious felony, as specified in PC  
                 section 667.5(c), and PC section 1192.7(c).
                     A felony offense for which a person is required  
                 to register as a sex offender pursuant to PC section  
                 290(c).
                     A felony offense for fraud against a public  
                 social services program, as defined in WIC sections  
                 10980(c)(2) and (g)(2).


          Additionally, IHSS providers must complete an initial  
          orientation, which largely addresses programmatic  
          information and fraud prevention efforts, rather than  
          skills based or safety training related to the care to be  
          provided. Some counties do provide additional training for  
          caregivers, but in general the program protects as a  
          consumer right, the role of the caregiver or a family  
          member in training the caregiver. 






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           Local Ordinances 

           In 2011, Napa County passed a county ordinance requiring  
          home care aides to undergo a background check and to carry  
          a "Caregiver Permit." The ordinance was passed at the  
          county level and then ratified by each of the five cities  
          in the county. Under the ordinance, providing care to an  
          elder or dependent adult without a permit is punishable as  
          a misdemeanor or infraction, and subject to a fine, one  
          year imprisonment in county jail, or both. Similar measures  
          are under consideration in additional counties.


          Fees associated with obtaining the permit in Napa County  
          include a $90 processing fee upon submission of the  
          application and an additional $20 permit fee at the time  
          the permit is issued. The permit is valid for one year.  
          Subsequent renewal fees are $79 the first year and $69 each  
          year following. Disqualifying crimes include felony  
          convictions within the past 10 years, certain misdemeanor  
          convictions, and being currently on parole or probation in  
          any county. 


           Prior Legislative Efforts


           Several prior bills would have provided for the licensure  
          of home care agencies and aides. The most contentious  
          source of conflict between stakeholders has centered on the  
          establishment of registries for home care aides. AB 322  
          (Yamada, 2013) and AB 899 (Yamada, 2011) were substantially  
          similar to this bill, but excluded the establishment of  
          registries. SB 411 (Price) also was substantially similar  
          to this bill; it included the establishment of registries  
          and primarily differed in that regulatory oversight was  
          delegated to the Department of Public Health. SB 411 was  
          vetoed by the Governor citing costs.

                                     COMMENTS


           This bill imposes numerous licensure and certification  
          requirements on private home care agencies that are not  
          paralleled in requirements pertaining to the more than  




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          300,000 uncertified home care providers working within the  
          In Home Supportive Services program despite substantially  
          similar scope of services. For example, although IHSS  
          providers are subject to background checks, they are not  
          subject to the requirements pertaining to wearing an ID  
          badge or to on-going training requirements related to  
          safety. Additionally, they are not required to submit  
          references, to demonstrate language proficiency, nor to be  
          supervised every 90 days in the client residence for the  
          purpose of being approved as a provider. Should the bill  
          move forward, the author may wish to consider amending the  
          bill to ensure that consumer protections are paralleled for  
          all home care providers - either by limiting certification  
          requirements under this bill to only include background  
          checks, or to apply parallel standards to all home care  
          aides.


          Furthermore, existing law clearly preserves the right of an  
          IHSS consumer to hire and train the individual providing  
          services, with the exception of individuals convicted of a  
          Tier 1 crime. As drafted, this bill imposes additional  
          restrictions on the ability of a private consumer to hire a  
          caregiver of his or her choosing through more stringent  
          certification requirements than exist for IHSS providers.


          This bill imposes numerous licensure and certification  
          requirements on private industry providers of home care  
          services that would require action on the part of DSS to be  
          fulfilled. However, the language regarding DSS activities  
          pertaining to maintenance of a registry and investigating  
          complaints is permissive, presumably due to cost concerns.  
          Given the severity of the crimes in both complaint  
          categories, the author may wish to consider requiring,  
          rather than permitting, DSS to investigate such complaints  
          against licensees and to do so regardless of whether the  
          aide is directly employed by the client or by a home care  
          organization.


           Prior Legislation


           AB 322 (Yamada, 2013), would have established the Home Care  




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          Services Act of 2013 to license and regulate home care  
          organizations providing services for the elderly, frail and  
          persons with disabilities. Held in Assembly Appropriations  
          Committee.


          SB 411 (Price, 2011), would have established the Home Care  
          Services Act of 2011, which requires the Department of  
          Public Health (DPH) to license and regulate home care  
          organizations. Vetoed by the Governor


          AB 899 (Yamada, 2011), would have established the Home Care  
          Services Act of 2013 to license and regulate home care  
          organizations providing services for the elderly, frail and  
          persons with disabilities. Held in Assembly Appropriations  
          Committee.


          AB 853 (Jones, 2007), would have established the Home Care  
          Services Act to license and regulate home care services for  
          the elderly, frail and persons with disabilities. Held in  
          Assembly Appropriations Committee.



                                   PRIOR VOTES  


          Assembly Floor:          52 - 26
          Assembly Appropriations  12 - 5
          Assembly Human Services  4 - 2

                                    POSITIONS  

          Support:       AARP
                         AFSCME
                         California Commission on Aging
                         California Senior Legislature
                         Congress of California Seniors
                         Los Angeles County District Attorney's  
          Office
                         Richmond Commission on Aging
                         SEIU California
                         The Arc and United Cerebral Palsy




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                         UDW

          Oppose:   California Association for Health Services at  
          Home
                         Cambrian Homecare
                         Care to Stay Home
                         Caring Solutions
                         Comfort Care Senior Services
                         Home Care Association of America
                         Home Instead Senior Care
                         Matched CareGivers Continuous Care
                         Maxim Healthcare Services, Inc. 
                         People's Care
                         66 Individuals
                         







                                   -- END --