BILL ANALYSIS Ó AB 782 Page 1 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. AB 782 Page 2 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; AB 782 Page 3 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; AB 782 Page 4 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. AB 782 Page 5 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 AB 782 Page 6 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 AB 782 Page 7 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 AB 782 Page 8 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; AB 782 Page 9 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 AB 782 Page 10 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 AB 782 Page 11 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 AB 782 Page 12 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: AB 782 Page 13 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 AB 782 Page 14 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. AB 782 Page 15 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. AB 782 Page 16 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 AB 782 Page 17 Opposition California Association for Health Services at Home (CAHSAH) Analysis Prepared by:Daphne Hunt / HUM. S. / (916) 319-2089