BILL ANALYSIS Ó
AB 1667
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Date of Hearing: March 29, 2016
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Susan Bonilla, Chair
AB 1667
(Dodd) - As Introduced January 15, 2016
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 requesting 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.
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.
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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,
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, for
registered home care aides entering into an agreement with
a home care aide domestic referral agency after January 1,
2017, that the aide is free of active tuberculosis, as
specified) 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
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home care aide applicant is associated;
c) Specifying requirements to be met by a home care aide
domestic referral agency in order to obtain and maintain
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 the renewal of a home care aide domestic
referral agency license every two years, and further
specifying the process entailed, and requirements to be
satisfied, in order for DSS to permit license renewal;
f) Requiring DSS to conduct random, unannounced
inspections, as specified, of home care aide domestic
referral agencies, and further permitting DSS to establish
procedures for the receipt, investigation, and resolution
of complaints against home care aide domestic referral
agencies;
g) 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;
h) 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
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care aide domestic referral agency" and other related
terms, as specified;
i) Prescribing fees and penalties and related processes;
and
j) Requiring a home care aide domestic referral agency
applicant that submits an application prior to January 1,
2017, to be in compliance with all requirements of the
chapter in question by July 1, 2017, in order to continue
providing home care services.
1)Clarifies that a home care organization or a home care aide
domestic referral agency does 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 a home care aide domestic referral agency applicant or
licensee to request the transfer of a home care aide's current
criminal record clearance or exemption, as specified, and
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outlines the process by which to do so.
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 to
immediately notify DSS when the home care aide domestic
referral agency removes an independent home care aide from its
referral list.
8)Requires a home care aide domestic referral agency licensee to
comply with specified bond requirements.
9)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.
10)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. Further
requires a subsequent, similar notice to be mailed to a client
who has not terminated referral services within 14 business
days following the mailing of the original disclosure.
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11)Requires a home care aide domestic referral agency licensee
to state that it is a referral agency on paid advertising
brochures and the agency's Internet Web site, as specified.
12)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.
13)Requires independent home care aides referred by home care
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.
14)Makes technical changes.
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
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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 "affiliated home care aide" to mean an adult
individual who is employed by a home care organization to
provide home 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)
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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
submit applications prior to that date have until July 1,
2016, to meet all necessary requirements in order to continue
to provide home care services. (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
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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 were implemented
beginning January 1, 2016, include, but are not limited to, the
following:
a) Requiring DSS to establish an online registry where home
care aides directly employed by home care organizations
must be listed, and where other independent home care aides
may volunteer to register;
b) Requiring home care aides to pass a background clearance
in order to be listed on the registry;
c) Requiring home care organizations to ensure that their
employees are on the registry, have passed a tuberculosis
test, and have completed specified training; and
d) 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.
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The online Home Care Aide Registry became operational in January
of this year. Currently, there are close to 48,000 searchable
home care aides on the registry, which includes both affiliated
and independent home care aides who have either been cleared or
whose clearance is pending. It is anticipated that close to
82,000 home care aides may ultimately register, based on
estimates provided by home care organizations. Over 1,300 home
care organizations have submitted a full application or an
intent to apply for licensure.
Need for this bill: According to the author, "In 2013,
California passed the Home Care Services Consumer Protection Act
(AB 1217, Lowenthal), which provided for the licensure and
regulation of 'home care organizations' that directly employ
aides and established the registration of home care aides who
are directly employed by these organizations. The Act did not
provide for the licensure of home care aide domestic referral
organizations which are a form of employment agency that refers
home care aides to prospective clients, but does not directly
employ the aides and is not permitted to train, supervise or
monitor the care provided, nor provide any tools, equipment or
supplies to the aides. Closing this loophole is needed so
consumers 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 it."
The Napa County Board of Supervisors, in unanimous support of
this bill, states that the bill could "extend protections to
seniors against violence, theft, and neglect perpetrated by
poorly screened home health caregivers."
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:
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"As currently written, [this bill] would significantly blur the
line between a home care organization and a [domestic referral
agency]. This could easily result in an individual believing
they are working with a home care organization only to find out
after facing a worker's compensation lawsuit that they were in
fact working with a [domestic referral agency]. The realization
of the need for home care services can often be difficult;
California must do everything it can to ensure that the public
is educated on the choices available."
Staff comments: At the heart of the Home Care Services Consumer
Protection Act is the protection of consumers who purchase and
utilize home care aide services. If the reach of this Act is to
be extended, it is important to maintain consumer protections.
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
domestic referral agencies, as it varies case-by-case; that
responsibility may indeed fall on the shoulders of consumers who
become "household employers" responsible for obligations such as
the payment of unemployment insurance and state disability
insurance taxes once certain earnings thresholds are reached.
While the bill includes disclosure notices stating that
consumers "may" have employer responsibilities related to home
care aides hired through domestic referral agencies, more could
be done to both make these potential employer responsibilities
clearer to consumers and to provide information regarding the
triggering of household employer status.
Recommended amendments: In order to strengthen consumer
protection by better informing and educating consumers about the
potential employer responsibilities involved in hiring home care
aides through domestic referral agencies, committee staff
recommends that information from the Employment Development
Department on the designation and responsibilities of household
employers be distributed to consumers of home care aide services
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obtained through domestic referral agencies. Additionally,
committee staff recommends that such agencies include more
information regarding household employment on their Web sites
and in paid advertisements. Therefore, committee staff
recommends the following amendments to Section 1796.42:
1)Starting on line 30 of page 26 of the bill:
27
(3)Within three business days after the home care aide
domestic
28
referral agency refers a registered home care aide to the person
29
seeking home care aide services, mail to the person seeking
30
Services both of the following :
(i) Employment Development Department Information Sheet DE
231L on Household Employment
(ii) A statement printed in not less than 10-point
31
type and in bold or italic:
1) Starting on line 22 of page 27 of the bill:
19
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(4)A home care aide domestic referral agency shall mail to a
20
client who has not terminated referral services within 14
business
21
days following mailing of the client disclosure pursuant to
22
paragraph (3) both of the following :
(i) Employment Development Department Information Sheet DE
231L on "Household Employment"
(ii) A statement printed in not less than
23
10-point type and in bold or italic:
1) Starting on line 12 of page 28:
12
(5)In any paid advertising brochure or the home care aide
13
domestic referral agencys Internet Web site promoting the home
14
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care aide domestic referral agencys services, insert the
following
15
statement, in no less than 10-point type and in a color that
16
contrasts with the background so it is easily legible:
18
"(Name of the home care aide domestic referral agency) is a
19
referral agency. Depending on the employment arrangement, an
individual hiring a home care aide through a referral agency may
take on employer responsibilities. For additional information,
contact your local Employment Development Department office and
the federal Internal Revenue Service. "
(6) On the home care aide domestic referral agency's Internet
Web site promoting the home care aide domestic referral agency's
services, insert the following statement, in no less than
10-point type and in a color that contrasts with the background
so it is easily legible:
"(Name of the home care aide domestic referral agency) is a
referral agency. Depending on the employment arrangement, an
individual hiring a home care aide through a referral agency may
take on employer responsibilities. For additional information,
contact your local Employment Development Department office and
the federal Internal Revenue Service. You may contact the
Employment Development Department at 800-300-5616 or
www.edd.ca.gov. You may contact the federal Internal Revenue
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Service at 1-800-829-3676 or www.irs.gov."
PRIOR LEGISLATION:
AB 782 (Dababneh), 2015, was substantially similar to this bill.
It died in the Assembly Appropriations Committee.
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 Plus 1 Senior Care, Inc.
A Better Living Home Care
Anita's Housekeeping Referral Agency
California Alliance for Retired Americans
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California Coalition of Domestic Referral Agencies (CCDRA)
California State Retirees (CSR)
Cleanology Housekeeping Personnel Service
Dana's Housekeeping
Jacqueline's Maids
Network of Domestic Referral Agencies (NODRA)
New Century Home Care Services, Inc.
Spruce Up
Tender Heart Home Care
The Board of Supervisors, Napa County
The Clean Sweep Housekeeping Agency
9 individuals
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Opposition
California Association for Health Services at Home (CAHSAH)
Analysis Prepared by:Daphne Hunt / HUM. S. / (916) 319-2089