BILL ANALYSIS �
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
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FISCAL: Yes
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CONSULTANT: Sara Rogers
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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
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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
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