BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 782


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          Date of Hearing:   April 28, 2015


                        ASSEMBLY COMMITTEE ON HUMAN SERVICES


                                  Kansen Chu, Chair


          AB 782  
          (Dababneh) - As Introduced February 25, 2015


          SUBJECT:  Home Care Services Consumer Protection Act


          SUMMARY:  Includes home care aide domestic referral agencies in  
          the Home Care Services Consumer Protection Act. 





          Specifically, this bill:  


          1)Defines "home care aide domestic referral agency" as an  
            employment agency that arranges or attempts to arrange work  
            for an independent home care aide, as specified.


          2)Defines "home care aide domestic referral agency applicant" as  
            an individual at least 18 years old or an entity, as  
            specified, that is seeking to become a home care aide domestic  
            referral agency licensee and from whom the Department of  
            Social Services (DSS) has received and is processing a  
            completed application and application fee.










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          3)Defines "home care aide application" as the official form  
            designated by DSS used to request licensure as a home care  
            aide domestic referral agency.


          4)Defines "home care aide domestic referral agency licensee" as  
            an individual at least 18 years old or an entity, as  
            specified, that possesses the authority and responsibility for  
            operating a licensed home care aide domestic referral agency.


          5)Expands the definition of "home care aide registry" to  
            include, if applicable, the home care aide domestic referral  
            agency or organizations with which an independent home care  
            aide is associated.


          6)Expands the Home Care Services Consumer Protection Act to  
            cover home care aide domestic referral agencies, thereby  
            applying many of the same requirements to these agencies that  
            the law currently applies to home care organizations (as of  
            implementation on January 1, 2016), including but not limited  
            to the following: 


             a)   Requiring independent home care aides to be listed on  
               the home care aide registry administered by DSS prior to  
               being referred by a home care aide domestic referral agency  
               and requiring referral agencies to ensure that a home care  
               aide is cleared on the home care aide registry (which  
               requires background clearance and a determination that the  
               aide is free of active tuberculosis) prior to placing that  
               aide in direct contact with a client;


             b)   Requiring, where applicable, the home care aide registry  
               to list the home care aide domestic referral agency or  
               organizations with which a registered home care aide or  
               home care aide applicant is associated; 








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             c)   Specifying requirements to be met by a home care aide  
               domestic referral agency in order to obtain licensure, and  
               the grounds on which DSS may deny, suspend, or revoke a  
               home care aide domestic referral agency license.  Further  
               specifying for DSS timeframes during which to temporarily  
               cease further review of license applications due to  
               negative items in licensure history;



             d)   Requiring each home care aide domestic referral agency  
               to be separately licensed, and clarifying that nothing in  
               the chapter at hand should prevent a home care aide  
               domestic referral licensee from obtaining more than one  
               license, or obtaining a license in addition to other  
               licenses issued by DSS; 



             e)   Requiring a home care aide domestic referral agency  
               licensee to report any suspected or known dependent adult  
               or elder abuse, and maintain related records, as specified;



             f)   Prohibiting a person or private or public organization,  
               unless licensed or exempted as specified, from representing  
               himself, herself or itself as a home care aide domestic  
               referral agency or including in its name the term "home  
               care aide domestic referral agency" and other related  
               terms, as specified; 











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             g)   Prescribing fees and penalties and related processes;  
               and



             h)   Implementing the act on January 1, 2016, and requiring  
               home care aide domestic referral agencies to be in  
               compliance by July 1, 2016.



          1)Clarifies that a home care organization or a home care aide  
            domestic referral agency shall not include an employment  
            agency, as specified, except for a home care aide domestic  
            referral agency as defined.
          2)Allows an individual with an Alien Registration Receipt Card  
            or a valid Permanent Resident Card to, after submission of an  
            application, initiate a background examination to be a  
            registered home care aide, licensed home care organization, or  
            licensed home care aide domestic referral agency. 


          3)Requires the home care aide registry to distinguish between an  
            affiliated and an independent home care aide.


          4)Allows a home care aide to be simultaneously registered as an  
            affiliated and an independent home care aide, and to be  
            affiliated with more than one home care organization or home  
            care aide domestic referral agency simultaneously, or with  
            both types of entities simultaneously.


          5)Permits an individual possessing a criminal record clearance  
            or exemption, as specified, to transfer that clearance or  
            exemption for purposes of licensure as a home care aide  
            organization or a home care aide domestic referral agency, and  
            outlines the process by which to do so.









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          6)Requires DSS to issue a home care organization license or a  
            home care aide domestic referral agency license to applicants  
            if all respective requirements are satisfied, as specified.


          7)Requires a home care aide domestic referral agency licensee to  
            orally communicate to a person seeking home care aide services  
            certain disclosure information regarding the nature of the  
            employment relationship and possible responsibilities  
            involved, as specified.





          8)Requires a home care aide domestic referral agency, within  
            three business days after referring a home care aide, to mail  
            to the person seeking services certain information regarding  
            the nature of the employment relationship, possible  
            responsibilities, and the ability to obtain records of  
            payments made to the home care aide, as specified.



          9)Requires a home care aide domestic referral agency licensee to  
            specify that it is a referral agency on paid advertising  
            brochures and the agency's Internet Web site, as specified.



          10)Requires a home care aide domestic referral agency licensee  
            to provide to a client, upon written request, a statement of  
            payments made to the registered home care aide on behalf of  
            that client, as specified.



          11)Requires independent home care aides referred by home care  








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            aide domestic referral agencies to complete an annual  
            proficiency exam on specified topics and to provide  
            references, as specified, unless the aide is exempted from  
            this requirement because he or she has a current and valid  
            certification from the State Department of Public Health as a  
            Certified Nurse Assistant or Certified Home Health Aide.   
            Further, requires a home care aide domestic referral agency to  
            ensure that the aides it refers have passed the annual  
            proficiency exam.
          EXISTING LAW:  


          1)Adopts 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, as  
            defined.  (HSC 1796.10 et seq.)


          2)Requires DSS to establish and regularly update an online home  
            care aide registry to include specified information on home  
            care aide applicants and registered home care aides, as  
            defined.  (HSC 1796.29)


          3)Defines "home care services" as nonmedical services and  
            assistance provided by a registered home care aide to a client  
            who, due to advanced age or physical or mental disability  
            cannot perform these services and uses such services to remain  
            in his or her residence.  (HSC 1796.12)


          4)Defines "home care organization" to mean an adult individual  
            or entity that arranges for home care services by an  
            affiliated home care aide to a client and is licensed.  (HSC  
            1796.12)


          5)Defines "affiliate home care aide" to mean an adult individual  
            who is employed by a home care organization to provide home  








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            care services to a client and is listed on the home care  
            registry.  (HSC 1796.12)


          6)Defines "independent home care aide" to mean an adult  
            individual who is not employed by a home care organization but  
            who is listed on the home care aide registry and is providing  
            home care services through a direct agreement with a client.   
            (HSC 1796.12)


          7)Defines "registered home care aide" to mean an affiliated home  
            care aide or independent home care aide who is listed on the  
            home care aide registry.  (HSC 1796.12)


          8)Requires background clearances for home care aides applying to  
            be on the home care aide registry, as specified.  (HSC  
            1796.23-1796.28)


          9)Requires affiliated home care aides hired on or after January  
            1, 2016, to demonstrate that they are free of active  
            tuberculosis.  (HSC 1796.45)


          10)Creates the Home Care Fund and requires certain fees, as  
            specified, to be imposed by DSS on home care organizations and  
            deposited into this fund.  (HSC 1796.47-1796.49)


          11)Prescribes enforcement procedures, fines and penalties for  
            violations of the Home Care Services Protection Act by a home  
            care organization or a home care aide.  (HSC 1796.51-1796.59) 


          12)States that the Home Care Services Consumer Protection Act  
            shall be implemented on January 1, 2016, and that home care  
            organization applicants and home care aide applicants who  








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            submit applications prior to that date have until July 1,  
            2016, to meet all necessary requirements.  (HSC 1796.61)


          FISCAL EFFECT:  Unknown


          COMMENTS:  


          Home care services:  As California's, and the nation's, senior  
          population grows, there is increasing need for in-home care to  
          facilitate individuals' ability to continue to live comfortably  
          in their own residences.  Home care aides play an important role  
          in meeting this need by providing a breadth of nonmedical  
          services to elderly individuals and individuals with physical  
          and mental disabilities.  These services can include assistance  
          with cooking, cleaning, dressing, feeding, bathing, and other  
          typical daily needs. 


          Home care aides not employed in the In-Home Supportive Services  
          (IHSS) program were not regulated by state law until very  
          recently.  AB 1217 (Lowenthal), Chapter 790, Statutes of 2013,  
          adopted a number of measures aimed at regulating the home care  
          services industry.  These requirements, which will be  
          implemented in 2016, include, but are not limited to, the  
          following:





          a)Requiring DSS to establish an online registry where home care  
            aides employed by home care organizations must be listed, and  
            where other independent home care aides may volunteer to  
            register. Registry requires passing a background clearance;










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          b)Requiring home care organizations to ensure that their  
            employees are on the registry, have passed a tuberculosis  
            test, and have completed specified training; and


          c)Allowing for the licensure and regulation of home care  
            organizations, including the development of related complaint  
            and other processes, and the collections of fees and  
            penalties.


          Need for this bill:  According to the author, the home care aide  
          domestic referral agency exemption to the licensing and  
          regulation of home care services is confusing to consumers, and  
          leaves consumers vulnerable to unscrupulous operators.   
          Additionally, the author contends that consumers may be misled  
          by the absence of home care aide domestic referral agencies on  
          the state's home care aide registry, and conclude that such  
          options, which may better fit their schedules or budgets, are  
          not available.  The author states that this bill will extend  
          consumer protections required for home care organizations to  
          home care referral agencies, but also tailor these to the home  
          care referral agency model. 


          According to the author:


            "Both the employer based home care organization that employs  
            workers and the home care referral agency models that refer  
            independent workers are legitimate resources for clients  
            seeking home care services.  Consumers deserve to know that  
            both models are licensed and are required to provide  
            comparable consumer protections.  It is appropriate that  
            consumers enjoy a consumer protection standard applied to the  
            whole industry, not just part of the industry, to minimize  
            'bad actors.'  In addition, the entire industry, not just the  
            employer based model, should have access to the proverbial  
            'good housekeeping seal of approval' accorded the employer  








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            based model.  The referral based model provides legitimate,  
            cost effective and flexibility of choice to the consumer,  
            while providing assurance that workers have been pre-screened  
            and meet standards. ?This [bill] will ensure full breadth of  
            industry consumer protection and competitive equity for both  
            models."


          Supporters claim that the enactment of the Home Care Services  
          Consumer Protection Act established a consumer protection  
          framework for home care agencies that directly employ workers,  
          but it did not include the "other half" of the industry:   
          referral agencies.  According to the Network of Domestic  
          Referral Agencies (NODRA), "Because AB 1217 regulated only part  
          of the in-home care industry, in the interest of sound public  
          policy relative to protecting frail, dependent and elderly  
          adults who use in-home care as an alternative to a facility, it  
          makes sense to ensure that the spectrum of the in-home care  
          industry should have to adhere to industry wide  
          standards?Licensure should be conferred to provide incentives  
          for both agency models to offer consumer protection, peace of  
          mind and services at competitive prices-increasing choice, while  
          tailoring consumer services to consumer circumstance and need."

          Opposition:  In opposition to this bill, California Association  
          for Health Services at Home (CAHSAH), states the following  
          regarding the inclusion of home care aide domestic referral  
          agencies in the Home Care Services Consumer Protection Act:

          "These Employment Agencies, known as Domestic Referral Agencies  
          (DRAs), only refer workers to consumers and inform them that  
          they 'may' be the employer of that worker.  When a home care  
          worker is referred to a consumer by a DRA, and the worker earns  
          more than $750 per quarter or $1,900 per year, the consumer  
          usually has household employer obligations to the worker.   
          Because the DRA acts as a fiscal intermediary, collecting  
          payments for services from the consumer and then paying the  
          worker, consumers are often unaware that an employment  
          relationship exists between them and the worker. Without a clear  








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          understanding of their responsibilities, unknowing and  
          unprepared consumers cannot make an informed decision regarding  
          the services that they are to receive, and are faced with legal  
          and financial liabilities if they do not fulfill their  
          obligations as household employers."


          Opponents argue for the following: requiring written disclosures  
          to include information for clients on complying with all  
          relevant labor laws, and the distribution of these disclosures  
          prior to the start of care; requiring that a statement of  
          payments made to home care aides be regularly provided to the  
          consumer so they may fulfill their household employer tax  
          obligations; and requiring home care aide domestic referral  
          agencies to maintain a dishonesty bond to protect consumers from  
          theft.
          
          

          Staff comments: The Home Care Services Consumer Protection Act  
          adopted a number of provisions to protect clients who purchase  
          and utilize home care aide services.  Any expansion of this act  
          should continue to ensure that the best interests of consumers  
          are considered and heeded. Home care organizations, currently  
          covered by the Act, are the direct employer of home care aides  
          and therefore are responsible for related costs and liabilities.  
          It is unclear where the responsibility for such liabilities  
          falls in the case of home care aide domestic referral agencies  
          referenced in this bill; some question remains as to whether or  
          not consumers hiring home care aides via a referral agency  
          become "household employers" responsible for associated  
          obligations (such as the payment of payroll taxes) once earnings  
          thresholds are reached. Should this bill move forward, the  
          author may wish to provide clarity regarding the  
          employer-employee relationship and how to uphold consumer  
          protections.


          Additionally, further detail related to the required annual  








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          proficiency exam for independent home care aides could be  
          helpful.  Specifically, it is unclear where the responsibility  
          lies for the determination of specific content to be tested, the  
          development and administration of the exam, and the reporting of  
          results. As currently written, this bill appears to leave open  
          the possibility that multiple private entities could administer  
          this exam for profit, possibly charging costs that may create  
          barriers for some to taking the exam, and thus to being employed  
          as independent home care aides.  Should this bill move forward,  
          the author may wish to provide further specificity and clarity  
          regarding the development and administration of the annual  
          proficiency exam for independent home care aides.


          Recommended amendments: 
          
          1)This bill states that the provision of a home care  
            organization license or home care aide domestic referral  
            agency license by DSS is required, provided an applicant meets  
            all requirements, as specified.  In order to maintain  
            consistency, DSS should also be required, versus permitted, to  
            renew licenses under the same conditions.  Therefore,  
            committee staff recommends the following amendments be made:
            


            On page 16, line 31, strike out "may" and insert:





            shall





            On page 19, line 13, strike out "may" and insert:








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            shall



          2)Committee staff also recommends the following technical  
            amendments:



            On page 4, line 7, strike out "that" and insert:





            with which





            On page 4, strike out lines 10 through 12, inclusive, and  
            insert:





             (2)  The home care aide domestic referral agency or agencies  
               with which an independent home care aide or independent  
               home care aide applicant is associated.
           
             On page 12, line 3, after "care" insert:
            aide








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            On page 25, line 21, after "care" insert:
            aide
          
          PRIOR LEGISLATION:

          AB 1863 (Jones), 2014, was substantially similar to this bill.   
          It died in the Senate Appropriations Committee.

          SB 855 (Committee on Budget and Fiscal Review), Chapter 29,  
          Statutes of 2014, revised and recast provisions of the Home Care  
          Services Consumer Protection Act and delayed implementation one  
          year until January 1, 2016.

          AB 1217 (Lowenthal), Chapter 790, Statutes of 2013, established  
          the Home Care Services Consumer Protection Act.

          REGISTERED SUPPORT / OPPOSITION:




          Support


          1 + 1 Senior Care 


          A Better Living Home Care Agency 


          A Better Way in Home Care


          A Hand at Home


          Ambassadors Providing Amazing Care, Inc. 









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          At TLC Attendant Care, Inc.


          Better Living Home Care Agency 3.24


          Caring Hands of the Desert Employment Agency, Inc.


          Dana's Housekeeping 


          Elder Caring Referral Agency


          HomeHero 


          Howard's House Cleaning


          Jacqueline's Maids, Inc.


          Maid with Joy


          MaidAmerica a Referral Agency


          Maximum Healthcare Services 4.10


          Network of Domestic Referral Agencies (NODRA)


          New Century Home Care Services, Inc.









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          Panda's Referral Agency


          Senior Homecare Referral Agency


          Senior Homecare Referral Agency


          Southern CA Maid Service


          Tender Heat Home Care Agency


          The Clean Sweep Housekeeping Agency


          34 Individuals



























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          Opposition


          California Association for Health Services at Home (CAHSAH)
                                           



          Analysis Prepared by:Daphne Hunt / HUM. S. / (916) 319-2089