BILL ANALYSIS Ó AB 1217 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 1217 (Lowenthal) As Amended September 6, 2013 Majority vote ----------------------------------------------------------------- |ASSEMBLY: |52-26|(May 30, 2013) |SENATE: |> |(>) | | | | | | | | ----------------------------------------------------------------- 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. AB 1217 Page 2 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 AB 1217 Page 3 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 AB 1217 Page 4 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. AB 1217 Page 5 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 AB 1217 Page 6 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 AB 1217 Page 7 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