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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