BILL ANALYSIS Ó
SENATE HUMAN
SERVICES COMMITTEE
Senator Leland Y. Yee, Chair
BILL NO: AB 1217
A
AUTHOR: Lowenthal
B
VERSION: September 6, 2013
HEARING DATE: September 10, 2013
1
FISCAL: Yes
2
1
CONSULTANT: Daphne Hunt
7
SUBJECT
Home Care Services Consumer Protection Act
SUMMARY
This bill establishes the Home Care Services Consumer
Protection Act to provide for the licensure and regulation
of home care organizations and the registration of home
care aides. Recent amendments significantly rewrite this
bill, although maintaining the general focus of the
original language. Changes include significant reductions
in the oversight responsibilities of the Department of
Social Services (DSS) over home care organizations and home
care aides, the removal of a number of requirements for
home care aides that work "independently," and not for a
home care organization, the addition of specified child
care workers to the list of included home care aides, the
creation of new misdemeanors related to the chapter in
question, and the inclusion of Child Abuse Central Index
information in the home care aide registry.
ABSTRACT
Existing Law
Continued---
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1)Requires the state Department of Justice to maintain a
Child Abuse Central Index (CACI) list which includes of
all reports of child abuse and severe neglect
investigated by law enforcement investigators and child
welfare departments statewide. These entities are
required to support all reports that are substantiated or
inconclusive of abuse. The index shall be continually
updated by the department and shall not contain any
reports that are determined to be not substantiated. (PC
11165.9, PC 11165.12, PC 11170)
2)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.)
3)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. (HSC 1250 et seq.)
4)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.)
5)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.)
6)Requires prospective IHSS providers to undergo a criminal
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background check and establishes two tiers of
exclusionary crimes. (WIC 12301.6. 12305.81 and 12305.87)
7)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 (as heard previously in the Senate Human Services
committee)
1)Establishes the Home Care Services Consumer Protection
Act of 2013.
2)Defines "home care aide" and "home care services," and
excludes 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.
3)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. Requires DSS to issue a two-year
license to a home care organization that has satisfied
certain requirements, as stipulated.
4)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
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services in the client residence, subject to client
consent.
5)Requires any person hired as a home health aide to be
certified by DSS prior to being hired, and requires
certification to include completion of certain training
as specified, background clearance as specified, and a
tuberculosis examination.
6)Requires a home care organization, prior to hiring a home
health aide, to ensure the health aide has complied with
specified requirements, including completing an
individual interview, submitting references,
demonstrating possession of sufficient language skills,
and providing proof of certification as a home health
aide.
7)Permits DSS to maintain on the department's Internet Web
site a publically-searchable registry of home care aides,
including the following information: certification
status, the name and geographic location of the home care
aide's employer(s), and any disciplinary action taken
against the home care aide. Permits the department to
request and maintain additional employment information
for a certified home care aide, as necessary, which shall
not be publicly available on the registry.
8)Additionally, requires a home care organization to comply
with a specified set of requirements, including
consulting the department's registry, if available, prior
to placing an aide in direct contact with a client,
investigating client complaints, evaluating home care
aides, requiring an aide to wear a badge as specified, et
al.
9)Permits DSS to establish procedures for the receipt,
investigation and resolution of complaints and to
investigate priority one and priority two complaints for
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home care organizations and aides not employed by a home
health organization.
10)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.
11)Establishes a series of client rights, and placing
related requirements on home care organizations, as
specified.
Recent Amendments
1)Separate the definition of "affiliated home care aides" -
those aides who are employed by a homecare organization
to provide home care services to a client - from
"independent home care aides" - those aides who are not
employed by a home care organization.
2)Remove reference to home care aide "certification" and
replace it with "registration."
3)Require affiliated home care aides to be listed on the
public home care aide registry, administered by DSS;
independent home care aides' registry is voluntary.
4)Remove DSS oversight responsibility over registered
aides, aside from maintaining the home care registry.
While affiliated home care aides will still be required
to be registered, pass a tuberculosis test, and complete
basic training, the amendments remove these requirements
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for independent home care aides.
5)Establish that, when determining whether to approve an
application for registration, DSS shall consider, among
other things, whether a home care aide is "reputable and
responsible" by reviewing information including criminal
offender records and, if services are to be provided to a
child, the Child Abuse Central Index.
6)Define a "Home care aide registry" as a
department-established and department maintained Internet
Web site of registered home care aides and home care aide
applicants, which includes all of the following: the
individual's name, registration number, registration
status, registration expiration date, and, if applicable,
the home care organization to which the affiliated home
care aide or affiliated home care aide applicant is
associated.
7)Require DSS to establish and maintain on the department's
Internet Web site the registry of registered home care
aides and home care aide applicants, including:
a. Enabling consumers to look up the registration
status on the Internet site by providing the
registered home care aide's or home care aide
applicant's name, registration number, registration
status, registration expiration date, and Child
Abuse Central Index status, if applicable.
b. Specifies that the Internet Web site shall not
provide any additional, individually identifiable
information about a registered home care aide or
home care aide applicant.
c. Permits DSS to request and maintain additional
information for registered home care aides or home
care aide applicants, as necessary for the
administration of this chapter, but specifies that
this information shall not be publicly available on
the home care aide registry.
d. Requires DSS to update the home care registry
upon receiving notification from a home care
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organization that an affiliated home care aide is no
longer employed by the home care organization.
8)Delete language that required DSS to maintain a registry
on its Internet Web site of home care organizations and
their licensure status.
9)Remove the section on Client Rights.
10)Establish new misdemeanors for falsely representing or
presenting oneself as a home care aide applicant or
registered home care aide, and for willfully or
repeatedly violating a rule or regulation.
11)Add specified child care providers in the definition of
home care aides. However the amendments exclude many
providers of care to children including those caring for
children from multiple families, foster parents,
relatives and other categories of providers, as
specified.
12)Continue to require DSS to verify that a home care
organization is in compliance with licensure through
random unannounced inspections, but remove the
requirement that this happen at least once every five
years.
13)Continue to establish training requirements for
affiliate home care aides, but remove DSS's
responsibility to oversee curriculum.
14)Remove the section requiring employment agencies that
refer, but do not act as the employer of, home care aides
to maintain general and professional liability insurance.
15)Move the bill's operative date from July 1, 2014 to
January 1, 2015.
FISCAL IMPACT
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The Senate Appropriations committee estimated cost of the
prior version of the bill to include 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 more
than 101,000 home care aides. Ongoing costs - offset by
licensing and certification fees - of approximately $20
million to administer the licensure and certification
programs, assuming a licensure fee of $6,000 per agency and
$80 certification fee per home care aide. Other costs to be
offset by special funds.
BACKGROUND AND DISCUSSION
While a large amount of the content of the original bill is
still contained in this most recent version, many
provisions of the original bill were removed in floor
amendments on Sept. 6th, and the language was significantly
re-written.
Prior to recent floor amendments, this bill required the
"certification" by DSS of all home care aides, regardless
of whether they worked independently or for a home care
organization. Certification included training requirements,
completion of a background clearance, and submission to a
tuberculosis examination. Amendments remove this
requirement for aides who do not work for a home care
organization.
Additionally, the bill permitted DSS to maintain on its
Internet registry specific information about all licensed
home care organizations. This language has been removed.
The bill also included a section on Clients' Rights, which
has been deleted. Prior to these most recent amendments,
DSS was not required, but instead permitted, to maintain a
home care registry.
The 18 pages of amendments make several other significant
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policy changes. Those included:
Removal of Oversight Over Home Care Organizations
A number of the recent amendments remove DSS's
responsibilities related to home care organizations. DSS is
no longer required to maintain information about home care
organization, including its licensure status and any
completed disciplinary action against it, in its registry.
DSS does not need to approve training curriculum, or submit
home care aide applicant fingerprints to DOJ (this
responsibility now lies with the applicant). While DSS
still must conduct unannounced visits of home care
organizations, it is not required to do so every five
years. The department is no longer required to develop a
report of all costs for home care licensure and activities
to be made available to the public and the Legislature.
Amendments also delete the requirements on home care
organizations to report to DSS information about home care
aides who are in not complying with statutory requirements,
to conduct annual assessments of aides, and require that
aides wear badges, as specified.
Reduced DSS Oversight of Home Care Aides
Recent amendments reduce DSS oversight of home care aides.
New language specifies that, "Other than maintaining the
home care registry, the department shall have no oversight
responsibility regarding registered home care aides."
Registration is now only required for affiliated home care
aides who are working for a home care organization, as
specified. Independent aides may volunteer to be included
in the registry.
DSS no longer must provide or renew certification for any
home care aide. Additionally, DSS is no longer required to
investigate "priority one" and "priority two" complaints,
as specified, of sexual abuse allegedly committee by
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independent home care aides.
Identification of an aide's employer
The amendments insert what appear to be conflicting
requirements as to whether or not the home care aide
registry will include publicly-available information on
registered aides' employers (i.e., home care
organizations). In the definition section of the bill under
"home care registry," (HSC 1796.12(i) inclusion of an
aide's employer is listed as a publicly available item on
the Internet website. Yet later language in (HSC
1796.29(a)) defines the information available to be
publicly searched as limited to a registered home care
aide's or applicant's name, registration number,
registration status, registration expiration date, and
Child Abuse Central Index status, if applicable.
New Child Care Provisions
The new language adds child care providers to those
included in the home care aide definition and registry, and
exempts a number of individuals who provide home care
services to children from having to be listed on the home
care aide registry. This includes, among others, providers
in designated health agencies and those providing services
through an organization vendored or contracted through DDS
or a regional center. Additionally, a registered home care
aide may provide home care services to more than one child
for a family, but may not provide these services for
children from more than one family at the same time.
Creation of New Misdemeanors
The new language establishes as a misdemeanor the
following: falsely representing or presenting oneself as a
home care aide applicant or registered home care aide, and
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violating the chapter in question or willfully or
repeatedly violating a rule or regulation under that
chapter.
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.
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. 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.
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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.
COMMENTS
The Child Abuse Central Index list is maintained and
updated by the state Department of Justice with information
submitted by investigators from law enforcement and child
welfare agencies. Its intent is to provide the DSS with
background information about potential foster parents and
others who would be caring for children prior to placement
of children in their care.
Since its establishment in the 1960s, more than 600,000
reports and over 700,000 "suspects" have been entered into
the "CACI". This is not an index of persons who necessarily
have been convicted of any crime; it is an index of persons
against whom reports of child abuse or neglect have been
made, investigated and, according to standards that have
changed over the years, determined by the reporting agency
(local welfare departments and law enforcement) to meet the
requirements for CACI inclusion. Recent legislation has
limited the duration of a person's stay on the CACI to 10
years, if the claim is not substantiated, required the
removal of individuals whose cases have been found to be
false, or unfounded, required the removal of individuals
who were over 100 years of age and on the CACI.
Until this legislation, a person's name and status on the
CACI has been not made public and only was authorized to be
revealed to specific entities for use in background checks.
This bill would require an individuals' status on the CACI
to be searchable in the registry of home care aides if the
aide provided child care services.
The author and sponsors said that this language is
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unintended and have agreed to strike references to the CACI
in this bill. Committee staff recommends the following
amendments:
Article 2. Registry and Exemptions
1796.14. (a) Individuals who are not employed by a home
care organization but who provide home care services to a
client may be listed on the home care aide registry.
(b) An affiliated home care aide shall be listed on the
home care aide registry prior to providing home care
services to a client.
(c) Any registered home care aide providing home care
services to a child shall also obtain a Child Abuse Central
Index check, as set forth in paragraph (2) of subdivision
(a) of Section 1796.19, unless the individual is exempt.
(d) Any registered home care aide who, after being placed
on the home care registry, will provide home care services
to a child, shall obtain a Child Abuse Central Index check,
as set forth in paragraph (2) of subdivision (a) of Section
1796.19, unless the individual is exempt.
Article 3. Home Care Aide Applicants
1796.19. (a) The department shall consider, but is not
limited to, the following when determining whether to
approve a registration application:
(1) Evidence satisfactory to the department of the ability
of the independent home care aide applicant or the
affiliated home care aide applicant to comply with this
chapter and the rules and regulations promulgated under
this chapter by the department.
(2) Evidence satisfactory to the department that the
independent home care aide applicant or the affiliated home
care aide applicant is of reputable and responsible
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character. The evidence shall include, but is not limited
to, a review of the independent home care aide applicant's
or the affiliated home care aide applicant's criminal
offender record information pursuant to Section 1522. If
home care services are to be provided to a child by an
affiliated home care aide, the evidence shall also include
a review of the Child Abuse Central Index pursuant to
Section 1522.1. If home care services are to be provided to
a child by an independent home care aide and the aide
elects to be subject to a Child Abuse Central Index review,
the evidence shall also include a review of the Child Abuse
Central Index pursuant to Section 1522.1.
Article 4. Registration
1796.23.
(c) The Department of Justice shall use the fingerprints to
search the state and Federal Bureau of Investigation
criminal offender record information pursuant to Section
1522 , and if applicable, the Child Abuse Central Index
pursuant to Section 1522.1 .
1796.29. (a) (1) To expedite the ability of a consumer to
search and locate a registered home care aide or home care
aide applicant, the Internet Web site shall enable
consumers to look up the registration status by providing
the registered home care aide's or home care aide
applicant's name, registration number, registration status,
and registration expiration date, and Child Abuse Central
Index status, if applicable .
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Article 9. Revenues
1796.48. (a) The department may charge an application and
renewal fee to become a registered home care aide and to
renew a registered home care aide's registration.
(b) The maximum fee shall not exceed the total actual
costs, which include, but are not limited to, of all of the
following:
(1) The searches for criminal offender records and, if
applicable, Child Abuse Central Index checks performed by
the Department of Justice. The cost to check the criminal
offender records and, if applicable, child abuse
information shall not subsidize the cost to check the
criminal or child abuse history of other persons by the
department who are not charged a fee by the Department of
Justice.
Additionally, language that was removed in the Senate
Appropriations Committee which would have created new
responsibilities within the Secretary of State's Office was
inadvertently reinserted in the newly amended version of
the bill. Committee staff recommends the following
amendment:
1796.37. (a) A home care organization that has its
principal place of business in another state, in addition
to the other requirements of this chapter, before arranging
for home care services provided by an affiliated home care
aide to a client in the state, shall comply with all of the
following:
(1) Have an office in California.
(2) Obtain authorization from the Secretary of State to
conduct business in California.
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PRIOR VOTES
Senate Appropriations 5 - 2
Senate Human Services 4 - 2
Assembly Floor 52 - 26
Assembly Appropriations 12 - 5
Assembly Human Services 4 - 2
POSITIONS
(Prior version)
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
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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