BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1217| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 1217 Author: Lowenthal (D), et al. Amended: 9/5/13 in Senate Vote: 21 SENATE HUMAN SERVICES COMMITTEE : 4-2, 6/25/13 AYES: Yee, Evans, Liu, Wright NOES: Berryhill, Emmerson SENATE APPROPRIATIONS COMMITTEE : 5-2, 8/30/13 AYES: De León, Hill, Lara, Padilla, Steinberg NOES: Walters, Gaines ASSEMBLY FLOOR : 52-26, 5/30/13 - See last page for vote SUBJECT : Home care organizations: licensure SOURCE : Author DIGEST : This bill 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. Senate Floor Amendments of 9/5/13 clarify that information shared by the Department of Social Services (DSS) pursuant to this bill is subject to existing law (Penal Code Section 11142), which states that the sharing of criminal records or information from criminal records with persons not authorized by law to receive such information is a misdemeanor. CONTINUED AB 1217 Page 2 ANALYSIS : 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). 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 more than one person is admitted for a 24-hour stay or longer. 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. 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. 5.Requires prospective IHSS providers to undergo a criminal background check and establishes two tiers of exclusionary crimes. 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. 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. CONTINUED AB 1217 Page 3 3.Defines "home care services" to include bathing, dressing, feeding, exercising, personal hygiene and 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 IHSS program, services authorized to be provided by a licensed residential care facility for the elderly 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 be issued for two years and that a violation 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: A. Submitted proof of general and professional liability insurance of one million dollars per occurrence and three million dollars in the aggregate. B. Submitted proof, as specified, of a valid workers compensation policy covering home health aides. C. Provided DSS with a complete list of home health aides and proof that each meets conditions of DSS certification. D. 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 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 CONTINUED AB 1217 Page 4 certification to include the following: A. 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. B. Completion of a background clearance, as specified. C. Submission to an examination to determine if he/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: A. Completed an individual interview. B. 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. C. Demonstrated that he/she possesses sufficient language skills to read and understand instructions, prepare and maintain written reports and records and communicate with a client. D. Provided proof of certification as a home health aide. 1.Additionally, requires a home care organization to do all of the following: A. Consult the DSS registry, if available, prior to placing an aide in direct contact with a client. B. 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 DSS if a home care aide is found to be in violation of conditions of certification. C. Evaluate home care aides as follows: CONTINUED AB 1217 Page 5 (1) 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. (2) 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 (3) Ensure that at all times an aide has access to a supervisor. A. 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. B. Require home care aides to demonstrate they are free of active tuberculosis. C. Require aides to complete the five-hour training requirement annually. D. Prohibit aides from accepting money or property from a client without written permission from the home care organization. E. Immediately notify the department when the home care organization no longer employs the aide. F. Post its license conspicuously in its place of business. G. Operate in a commercial space that complies with local zoning ordinances. H. Have plans and procedures in place for the following: (1) In the event of emergencies or natural disasters. (2) In the event that a home care aide scheduled to provide services becomes unavailable. CONTINUED AB 1217 Page 6 (3) A policy regarding advance directives. (4) Receipt and disbursement polices for expenditures made on behalf of a client to ensure that financial abuse does not occur. A. Maintain a valid workers' compensation policy covering aides. B. 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.Requires DSS to share information it obtains, including information reported by home care organizations, home care aides, and the Department of Justice (DOJ), with specified governmental entities, upon request and to the fullest extent permitted by law, and subject to prohibitions in Penal Code Section 11142 and contracted restrictions applicable to information reported by DOJ. 3.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. 4.Establishes a series of client rights, which require a home care organization to do all of the following: A. Advise a client of any change in the client's plan for home care services. B. Prior to arranging for services: (1) Distribute a copy of the client's advance health CONTINUED AB 1217 Page 7 care directive to the client along with a written summary of state law. (2) Advise the client about the organization's policy regarding disclosure of client records. (3) Inform the client of the types and hours of available home care services. (4) Inform the client both orally and in writing of the home care services that are or are not covered by Medi-Cal or Medicare. (5) Inform the client of any change to that information within 30 days. (6) 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. 1.Specifies that this bill's provisions do not supersede local laws regulating home care organizations and home care services, including licensing, reporting, registration, and providing for civil penalties. Background Licensing standards . Existing law generally provides for the Department of Public Health 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. IHSS program . California's 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 CONTINUED AB 1217 Page 8 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. Prior Legislation AB 322 (Yamada, 2013) 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. The bill was held in Assembly Appropriations Committee. SB 411 (Price, 2011) would have established the Home Care Services Act of 2011, which required DPH to license and regulate home care organizations. The bill was vetoed by Governor Brown. 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. The bill was 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. The bill was held in Assembly Appropriations Committee. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: No According to the Senate Appropriations Committee: One-time costs of approximately $22.5 million (General Fund) to promulgate regulations, forms, automation changes to create the new licensing system and development of registries, inspections and licensing for 2,000 agencies, and certification of over 101,000 home care aides. Ongoing costs to be covered by licensure and certification fees from the newly created Home Care Organization and Home Care Aide CONTINUED AB 1217 Page 9 (HCOHCA) Fund. Estimated ongoing costs of approximately $20 million (HCOHCA Fund) to administer the licensure and certification programs, to be fully offset by licensure and certification fees. Assuming 60% of ongoing costs would be attributable to licensure would result in a licensure fee of $6,000 per agency and $80 certification fee per home care aide. Fingerprint Fees Account costs to the Department of Justice of $280,000 in FY 2013-14, $400,000 in FY 2014-15, and $130,000 in FY 2015-16 and annually thereafter for workload associated with additional background checks required of all home care aides and home care organization licensees. Minor ongoing administrative costs to the Secretary of State to the extent additional organizations register to conduct business in California. SUPPORT : (Verified 9/6/13) 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 United Domestic Workers OPPOSITION : (Verified 9/6/13) California Association for Health Services at Home Cambrian Homecare Care to Stay Home Caring Solutions Comfort Care Senior Services Home Care Association of California Home Instead Senior Care Matched CareGivers Continuous Care Maxim Healthcare Services, Inc. People's Care CONTINUED AB 1217 Page 10 ARGUMENTS IN SUPPORT : According to the author's office, the number of California residents aged 85 and older will double to more than 1.3 million by 2030. The author's office 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's office notes that individuals and organizations providing skilled nursing services at a person's residence 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's office 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's office states that this bill requires 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. ARGUMENTS IN OPPOSITION : The Home Care Association of California and Maxim Healthcare Services, Inc. write, 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 this 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. ASSEMBLY FLOOR : 52-26, 5/30/13 AYES: Alejo, Ammiano, Atkins, Bloom, Blumenfield, Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian Calderon, Campos, Chau, Chesbro, Cooley, Daly, Dickinson, Eggman, Fong, CONTINUED AB 1217 Page 11 Fox, Frazier, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gray, Hall, Roger Hernández, Jones-Sawyer, Levine, Lowenthal, Medina, Mitchell, Mullin, Muratsuchi, Nazarian, Pan, Perea, V. Manuel Pérez, Quirk, Quirk-Silva, Rendon, Salas, Skinner, Stone, Ting, Weber, Wieckowski, Williams, John A. Pérez NOES: Achadjian, Allen, Bigelow, Chávez, Conway, Dahle, Donnelly, Beth Gaines, Gorell, Grove, Hagman, Harkey, Jones, Linder, Logue, Maienschein, Mansoor, Melendez, Morrell, Nestande, Olsen, Patterson, Wagner, Waldron, Wilk, Yamada NO VOTE RECORDED: Holden, Vacancy JL:ej 9/6/13 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED