BILL ANALYSIS �
AB 1217
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CONCURRENCE IN SENATE AMENDMENTS
AB 1217 (Lowenthal)
As Amended September 6, 2013
Majority vote
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|ASSEMBLY: |52-26|(May 30, 2013) |SENATE: |> |(>) |
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Original Committee Reference: HUM. S.
SUMMARY : Enacts the Home Care Services Consumer Protection Act
(Act). Specifically, this bill :
1)Establishes definitions for implementation of the act, as
specified, including but not limited to the following
definitions:
a) "Home care aide registry" means a California Department
of Social Services (DSS) established and 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.
b) "Home care organization" (HCO) means an individual, 18
years of age or older, firm, partnership, corporation,
limited liability company, joint venture, association, or
other entity that arranges for home care services by an
affiliated home care aide to a client.
c) Establishes separate definitions of a home care aide
(HCA) to include:
i) An "affiliated home care aide" who is employed by a
homecare organization to provide home care services to a
client and is registered on the HCA registry.
ii) An "independent home care aide" who is not employed
by a home care organization but is registered on the HCA
registry.
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d) "Home care services" means nonmedical services and
assistance provided by a registered home care aide to a
client who, because of advanced age or physical or mental
disability cannot perform these services, as specified.
e) "Home care organization" (HCO) means an individual, 18
years of age or older, firm, partnership, corporation,
limited liability company, joint venture, association, or
other entity that arranges for home care services by an
affiliated home care aide to a client, and is licensed
pursuant to this chapter.
2)Requires an affiliated HCA to be listed on the public home
care aide registry, administered by DSS and permits
independent HCAs to voluntarily be on the registry.
3)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 for
independent home care aides.
4)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.
5)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, and registration expiration
date.
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
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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 organization that
an affiliated home care aide is no longer employed by the
home care organization.
6)Establishes 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.
7)Provides exclusions of many providers who provide care to
other persons, as specified.
8)Requires DSS to verify that a HCO is in compliance with
licensure through random unannounced inspections, but remove
the requirement that this happen at least once every five
years.
9)Establishes training requirements for affiliated HCAs, as
specified.
10)Delays implementation of the act until January 1, 2015.
The Senate amendments made in the Senate resulted in a
substantial rewrite of the bill. Many of the provisions remain,
but in a limited manner. The amendments differ from the approved
Assembly version in the following ways:
1)Require HCAs employed by an HCO to be registered with DSS
rather than be certified by DSS.
2)Limit the Act's requirements to only those HCA's who are
employed by an HCO (Affiliated HCA) or an HCA who is not
employed by an HCO (Independent HCA), but has registered
voluntarily with DSS.
3)Reduce DSS oversight responsibilities to licensing
responsibilities over HCOs and establishing and maintaining an
HCA registry, specifically it states that "Other than
maintaining the home care registry, the department shall have
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no oversight responsibility regarding registered home care
aides."
4)Delete the requirement that HCOs report to DSS information
about HCAs who are not in compliance with the Act.
5)Delete provisions providing for clients' rights.
6)Delete provisions providing for a complaints and investigation
process regarding HCAs, but preserves a complaints and
investigation process regarding HCOs.
7)Remove the authority of DSS to levy penalties against an HCO
when it has been found to be in violation of the Act.
8)Make it a misdemeanor to willfully or repeatedly violate the
Act.
9)Remove the requirement of DSS to establish training curricula,
with which HCAs must comply.
AS PASSED BY THE ASSEMBLY , this bill:
1)Established the Home Care Services Consumer Protection Act
(Act) of 2013, which would have required the DSS to license
HCOs, certify HCAs, and adopt specified regulations relating
to complaints, enforcement, and implementation of the Act.
2)Required all non-exempted entities providing home care
services by a HCA to obtain a license and all HCAs to undergo
criminal background checks and meet specified training
requirements in order to be certified as a HCA prior to being
employed or operating as a HCA, as specified.
3)Required DSS to certify any person hired after January 1,
2014, as a HCA within 90 days of the date of hire and that any
person referred by an employment agency who provides
assistance with activities of daily living be certified prior
to any referral.
4)Required DSS to establish a complaints process for the filing
and investigation of complaints, including the authority to
levy civil penalties up to $900 per day per violation, and to
maintain a registry on its Internet Web site of all certified
HCAs, as specified.
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5)Prohibited a public or private organization, except a county
providing In-Home Supportive Services (IHSS) or other entity
exempted from licensing under the Act, from representing
itself to be a home care organization (HCO) or using the terms
"health care organization," "home care," "in-home care," or
any combination of such terms in its name, unless it is
licensed pursuant to the Act.
6)Established requirements on HCOs to protect clients' rights
and training requirements for home care aides, as specified.
7)Established the HCO and HCA Fund within the State Treasury, in
which licensure and certification funds, as well as fines and
penalties, would deposited to fund DSS to administer the HCSA.
FISCAL EFFECT : Unknown
COMMENTS :
Medical and nonmedical home care services : California law
currently provides for two types of in-home care for the
elderly, disabled, and people in need of home-based care;
through IHSS and Home Health Agencies (HHA).
Licensed by the California Department of Public Health (DPH),
HHAs provide an array of medical and non-medical care and
services, including skilled nursing services, based upon a plan
of treatment prescribed by the patient's physician or surgeon.
These services can range in types of care from regular
day-to-day home care services to significant medical care,
including the administration of intravenous medications and
other services that would otherwise be provided in a skilled
nursing facility (SNF). In order to provide "home health aide
services," home health aides must undergo specified training and
be certified by DPH. HHAs help to provide patients with the
opportunity to live as comfortably as possible at home while
receiving necessary medical care as prescribed by their
physician rather than in a medical facility.
IHSS is a county operated service, in coordination with DSS,
which provides in-home care to low-income elderly or disabled
persons. Although similar in the provision of non-medical care,
IHSS differs from HHAs in that it provides support services and
some "paramedical services" but often not substantial, SNF-level
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medical services in the home. The focus of IHSS is to provide
services that make it possible for a patient (or recipient) to
live independently at home while receiving basic personal care
assistance and domestic services from an IHSS provider, in
addition to help with administering medications, assistance with
prosthetic devices, and bowel, bladder and menstrual care.
Current licensing standards for community care providers : DSS
Community Care Licensing Division (CCLD) is responsible for
carrying out the duties established by the California Community
Care Facilities Act and other related licensing acts in the
Health and Safety Code.
Prior to 2003, CCLD was required to visit most licensed
organizations once per year and family child care homes once
every three years. However, due to the state's ongoing budget
deficit, the state eliminated these requirements in the 2003-04
Budget and limited visits to 10% of facilities based upon their
poor performance history.
For those residential facilities not subject to annual
inspections, CCLD is currently required to conduct comprehensive
compliance inspections of a 30% random sample of facilities each
year, with each facility required to be visited as least once
every five years. There are additional inspection requirements
for new facilities or when changes occur to the license, which
includes pre-licensing and post-licensing inspections that help
to ensure that a new licensee starts off correctly.
Regulating the home care market : This measure seeks to regulate
what is considered to currently be the home care industry, which
has existed for many years, but has begun to increase as the
nation's elderly population expands and the demand for in-home
care increases to allow individuals to live comfortably at home
with the assistance of a day-to-day home care provider. Home
care providers provide basic daily non-medical living
assistance, such as cooking, cleaning, dressing, feeding, and
other regular daily needs. However, unlike their IHSS and HHA
counterparts, there are no requirements in current law that
require home care aides to have minimum levels of training,
undergo a criminal background check, or comply with basic
standards of service.
Due to the lack of a regulatory structure and related
enforcement, there is no framework or definition for what is
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considered a home care aide. Although the title "home care
aide" implies a level of expertise and integrity associated with
a minimum level of care, any person may represent him or herself
as a home care aide. In some instances, individuals may solicit
their services through notifications posted online on Web sites
such as Craigslist or in newspaper classified ads. This can
place consumers who are in need of day-to-day living assistance
services in the home in potentially vulnerable situations, as
there are little to no existing legal requirements and
protections established. In some respects, it is not
unreasonable to associate home care aides unaffiliated with
reputable or established organizations or who operate as
independent contractors as part of an underground home care
industry whereby the public rests their faith in the hope that
the elderly and disabled are receiving adequate and beneficial
care in the home.
Regarding established agencies and associations that currently
employ home care aides, there is an expectation and desire to
develop a regulatory framework in anticipation of public demand
for greater standards and accountability.
Analysis Prepared by : Chris Reefe / HUM. S. / (916) 319-2089
FN: 0002829