BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  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 


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