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--- STAFF ANALYSIS OF ASSEMBLY BILL 1217 (Lowenthal) Page 2 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 STAFF ANALYSIS OF ASSEMBLY BILL 1217 (Lowenthal) Page 3 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 STAFF ANALYSIS OF ASSEMBLY BILL 1217 (Lowenthal) Page 4 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: STAFF ANALYSIS OF ASSEMBLY BILL 1217 (Lowenthal) Page 5 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: STAFF ANALYSIS OF ASSEMBLY BILL 1217 (Lowenthal) Page 6 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 STAFF ANALYSIS OF ASSEMBLY BILL 1217 (Lowenthal) Page 7 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 STAFF ANALYSIS OF ASSEMBLY BILL 1217 (Lowenthal) Page 8 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 STAFF ANALYSIS OF ASSEMBLY BILL 1217 (Lowenthal) Page 9 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 STAFF ANALYSIS OF ASSEMBLY BILL 1217 (Lowenthal) Page 10 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. STAFF ANALYSIS OF ASSEMBLY BILL 1217 (Lowenthal) Page 11 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. STAFF ANALYSIS OF ASSEMBLY BILL 1217 (Lowenthal) Page 12 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 STAFF ANALYSIS OF ASSEMBLY BILL 1217 (Lowenthal) Page 13 300,000 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 STAFF ANALYSIS OF ASSEMBLY BILL 1217 (Lowenthal) Page 14 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 STAFF ANALYSIS OF ASSEMBLY BILL 1217 (Lowenthal) Page 15 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 --