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