BILL NUMBER: AB 899 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 11, 2011
AMENDED IN ASSEMBLY APRIL 28, 2011
AMENDED IN ASSEMBLY MARCH 31, 2011
INTRODUCED BY Assembly Member Yamada
( Coauthor: Senator Evans
)
FEBRUARY 17, 2011
An act to add Chapter 13 (commencing with Section 1796) to
Division 2 of the Health and Safety Code, relating to home care
services, and making an appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
AB 899, as amended, Yamada. The Home Care
Services Act of 2011.
Existing law provides for the licensing and regulation of various
community care facilities by the State Department of Social Services.
This bill would enact the Home Care Services Act of 2011 and would
provide for the licensure and regulation of home care organizations,
as defined, by the State Department of Social Services. The
bill would establish home care organizations as being recognized in
the health care industry. The bill would impose various
licensure requirements on a home care organization and would also
impose a civil penalty on an individual or entity that operates a
home care organization without a license. The bill would require a
home care organization to provide a client with specified information
before arranging for the provision of home care services, as
defined, to that client, including, but not limited to, the types and
hours of available home care services and the extent to which
payment may be expected from specified sources. In addition, the home
care organization would be required to, among other things,
distribute to the client its advance directive policy and provide a
written notice to the client of certain rights. The bill would also
prohibit a home care organization from hiring an individual as a home
care aide unless that individual meets certain requirements,
including, but not limited to, demonstrating that he or she has
specified language skills. The bill would require a home care
organization to conduct background clearances on home care aides, as
specified, and to require home care aides to demonstrate they are
free of active tuberculosis. The bill would also require a home care
organization to conduct regular evaluations of its home care aides,
as specified, and to ensure that home care aides demonstrate basic
competency in certain areas. The bill would establish the Home Care
Organization Fund, would authorize the department to impose various
fees to be deposited in that fund, and would make a continuous
appropriation from that fund to the department to carry out the
provisions of the bill act . The bill,
in addition, would prescribe enforcement procedures and penalties for
violations of the act.
Vote: 2/3. Appropriation: yes. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature hereby finds and declares all of the
following:
(a) Seniors, individuals with disabilities, and the frail
frequently find themselves in need of part-time to full-time
assistance from a caregiver in order to live at home independently.
(b) The Employment Development Department has identified home care
services as one of the fastest growing fields.
(c) In California, most individuals hiring a home care
organization believe that the home care aide entering their home has
been thoroughly screened and trained. However, a business license is
the only requirement needed to provide nonmedical home care services
in an individual's home.
(d) In view of the increasing number of home care aides entering
private homes, the number of incidents of abuse and neglect by home
care aides currently being reported in the media is alarming and a
matter of concern because, according to prosecutors, for every
reported incident of abuse or neglect, four others go unreported.
(e) Discharge planners commonly keep lists of home care aides and
home care organizations for purposes of patient referral without any
information about the individuals or the organizations, thereby
placing the client and the referring organization at risk.
SEC. 2. Chapter 13 (commencing with Section 1796) is added to
Division 2 of the Health and Safety Code, to read:
CHAPTER 13. HOME CARE SERVICES ACT OF 2011
Article 1. General Provisions
1796. This chapter shall be known and may be cited as the Home
Care Services Act of 2011.
1796.1. The State Department of Social Services shall administer
and enforce this chapter.
1796.2. For purposes of this chapter, the following definitions
shall apply:
(a) "Client" means an individual who receives home care services.
(b) "Department" means the State Department of Social Services.
(c) "Home care aide" means an individual who is paid to provide
home care services to a client in the client's residence, and is
synonymous with "caregiver," "custodial care," "personal care
attendant," "homemaker," and "companion." In addition, "home care
aide" includes an individual who qualifies as a personal attendant,
as defined in Industry Wage Order 15-2001, issued by the Industrial
Welfare Commission, and provides home care services.
(d) "Home care organization" or "organization" means an
individual, partnership, corporation, limited liability company,
joint venture, association, or other entity that arranges for the
provision of home care services by a home care aide to a client in
the client's residence and that is licensed pursuant to this chapter.
Home care organization shall not include any of the following:
(1) A home health agency licensed under Chapter 8 (commencing with
Section 1725).
(2) A hospice licensed under Chapter 8.5 (commencing with Section
1745).
(3) A health facility licensed under Chapter 2 (commencing with
Section 1250).
(4) A county providing in-home supportive services pursuant to
Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of
Division 9 of the Welfare and Institutions Code, without regard to
whether the county provides these services as a public authority or
through a nonprofit consortium established pursuant to Section
12301.6 of the Welfare and Institutions Code.
(e) (1) "Home care services" means services provided by a home
care aide to a client who, because of advanced age or physical or
mental infirmity, cannot care for the client's own needs. These
services include, but are not limited to, bathing, dressing, feeding,
exercising, personal hygiene and grooming, transferring, ambulating,
positioning, toileting and incontinence care, assisting with
medication that the client normally self-administers, housekeeping,
meal planning and preparation, laundry, transportation, making
telephone calls, shopping for personal care items or groceries, and
companionship. Nothing in this subdivision shall be construed to
authorize a home care aide to administer medication.
(2) Home care services shall not include any of the following:
(A) Services authorized to be provided by a licensed home health
agency under Chapter 8 (commencing with Section 1725).
(B) Services authorized to be provided by a licensed hospice
pursuant to Chapter 8.5 (commencing with Section 1745).
(C) Services authorized to be provided by a licensed health
facility pursuant to Chapter 2 (commencing with Section 1250) of
Division 2.
(D) In-home supportive services provided pursuant to Article 7
(commencing with Section 12300) of Chapter 3 of Part 3 of Division 9
of the Welfare and Institutions Code.
(E) Services provided by organizations that provide only
housekeeping services.
(F) Services authorized to be provided by a licensed residential
care facility for the elderly pursuant to Chapter 3.2 (commencing
with Section 1569).
(f) "Residence" means a temporary or permanent location where a
client receives home care services.
1796.3. Nothing in this chapter shall be construed to prohibit an
individual from employing a home care aide without the assistance of
a home care organization.
1796.4. This chapter shall establish home care organizations as
being recognized in the health care industry.
Article 2. Licensure
1796.5. (a) No individual, partnership, corporation, limited
liability company, joint venture, association, or other entity shall
arrange for the provision of home care services by a home care aide
to a client in the state without first obtaining a license pursuant
to this chapter.
(b) Upon discovering that an individual or entity is in violation
of this chapter, the department shall send a written notice of
noncompliance to the individual or entity and to a district attorney
or the Attorney General. Upon receiving this notice, a district
attorney or the Attorney General may do any of the following:
(1) Issue a cease and desist order, which shall remain in effect
until the individual or entity has obtained a license pursuant to
this chapter. Upon receipt of a cease and desist order, the
individual or entity in violation shall be responsible for the safe
and timely transfer of clients to a licensed provider of similar
services. If the department assumes responsibility for the safe and
timely transfer of clients to a licensed provider of similar
services, then the individual or entity in violation is responsible
for all costs incurred by the department in association with the
transfer. The individual or entity in violation shall in no way
benefit, financially or otherwise, through the transfer process. If
the individual or entity fails to comply with the cease and desist
notice, the Attorney General or a district attorney may petition the
court for the issuance of an injunction restraining the individual or
entity from continuing the violation of this chapter.
(2) Impose a civil penalty of four hundred dollars ($400) per day
for each calendar day of violation.
(3) Bring an action against the individual or entity under Chapter
5 (commencing with Section 17200) of Part 2 of Division 7.
1796.7. A home care organization that has its principal place of
business in another state shall, in addition to the other
requirements of this chapter, comply with both of the following
requirements before arranging for the provision of home care services
by a home care aide to a client in California:
(a) Have a physical office with a physical address in California.
(b) Obtain authorization from the Secretary of State to conduct
business in California.
(c) Comply with Section 1796.21.
1796.8. No private or public organization, excluding any county
providing in-home supportive services pursuant to Article 7
(commencing with Section 12300) of Chapter 3 of Part 3 of Division 9
of the Welfare and Institutions Code, shall do any of the following
unless it is licensed under this chapter:
(a) Represent itself to be a home care organization by its name or
advertisement, soliciting, or any other presentments to the public,
or in the context of services within the scope of this chapter imply
that it is licensed to provide those services or to make any
reference to employee bonding in relation to those services.
(b) Use the words "home care organization," "home care,"
"home-care," "homecare," or "in-home care," or any combination of
those terms, within its name.
1796.9. The enactment of this chapter is an exercise of the
general authority of the state for the protection of the public
welfare, prosperity, health, safety, and peace of its people. The
civil penalties provided by this chapter are in addition to any other
penalty provided by law.
1796.11. In order to administer this chapter, the department
shall do all of the following:
(a) Adopt rules and regulations to implement and administer this
chapter.
(b) Establish procedures for the receipt, investigation, and
resolution of complaints against home care organizations.
(c) Make available on the department's Internet Web site a list of
home care organizations, including, for each organization, the
organization's name, address, license number, and the effective date
of its license.
1796.13. (a) The department shall issue a license to a home care
organization that meets all of the following requirements:
(1) Submits an application, on a form prescribed by the
department.
(2) Pays a licensure fee, as prescribed by the department pursuant
to Section 1796.39.
(3) Submits proof of general and professional liability insurance
in the amount of at least one million dollars ($1,000,000) per
occurrence and three million dollars ($3,000,000) in the aggregate.
(4) Submits proof of a valid workers' compensation policy covering
its home care aides. The proof shall consist of the policy number,
the effective and expiration dates of the policy, and the name and
address of the policy carrier.
(5) Passes a background clearance pursuant to Section 1796.33.
(5) The owner of the organization passes a background clearance
pursuant to Section 1796.17.
(6) Complies with the requirements of this chapter.
(b) The term of a license issued under this section is one year.
The license may be renewed upon application to the department and
payment of the renewal fee prescribed by the department pursuant to
Section 1796.39.
1796.15. At least 60 days before the expiration of a license, the
department shall provide the licensee, through electronic mail or
other means, at the latest contact address furnished by the licensee
to the department, a notice stating the amount of the renewal fee and
the date on which it is due, and that failure to pay that fee on or
before the date due shall result in the expiration of the license.
1796.17. (a) In order for a home care organization to
obtain a license, the following individual or individuals shall
consent to the background clearance described in subdivision (b) of
Section 1796.33:
(1) The owner or owners of a home care organization if the owners
are individuals.
(2) If the owner of a home care organization is a corporation,
limited liability company, joint venture, association, or other
entity, an individual having a 5-percent or greater interest in that
entity.
(b) If the background clearance conducted pursuant to subdivision
(a) discloses a conviction for a felony or a crime that
evidences an unfitness to operate a home care organization, the
application for a license shall be denied. This subdivision shall not
apply to deny a license if the individual or individuals, as
applicable, present evidence satisfactory to the department that the
individual or individuals, as applicable, have been rehabilitated and
presently are of good character so as to justify the issuance of a
license. crime that is substantially related to the
qualifications, functions, or duties of operating a home care
organization, the application for a license may be denied, except
that a license shall not be denied pursuant to this subdivision if
the individual has obtained a certificate of rehabilitation pursuant
to Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3
of the Penal Code or if the information or accusation against the
individual has been dismissed pursuant to Section 1203.4 of the Penal
Code.
(c) If the department denies an application for a license because
of a conviction for a crime as described in subdivision (b) or if the
department denies a license renewal based upon a subsequent
conviction for a crime as described in subdivision (b), the
department shall notify the individual convicted of that crime of
this determination by either personal service or registered mail, and
this notice shall include all of the following:
(1) A statement of the department's reasons for the denial. This
statement shall evaluate any evidence of rehabilitation submitted by
the individual.
(2) A copy of the individual's criminal offender record
information search response. The department shall provide this
information in a manner that protects the confidentiality and privacy
of the criminal offender record information search response.
(A) The state criminal history record shall not be modified or
altered from its form or content as provided by the Department of
Justice.
(B) The department shall record the date the response was provided
by the Department of Justice and the date the department provided
the copy of the response to the individual.
(C) The criminal offender record information search response shall
not be made available by the department to any individual other than
an individual convicted of a crime that is the basis for a denial by
the department pursuant to this section.
(d) (1) An individual with a conviction that results in the denial
of a license pursuant to this section may request an administrative
hearing by submitting a written request to the department within 15
business days of receipt of the written notice pursuant to
subdivision (c).
(2) The department shall hold an administrative hearing upon
receipt of the written request from the individual pursuant to
paragraph (1). The administrative hearing shall be consistent with
the procedures specified in Section 100171 of the Health and Safety
Code, except where those procedures are inconsistent with this
section. The administrative hearing shall be conducted by a hearing
officer or administrative law judge designated by the director.
(3) The hearing officer or administrative law judge shall make a
written decision that shall be sent by certified mail to the
individual who requested the hearing.
Article 3. Complaints, Inspections, and Investigations
1796.19. (a) The department shall review and, if it determines
necessary, investigate complaints filed against a home care
organization.
(b) An investigation or inspection by the department pursuant to
this chapter may include both of the following:
(1) Inspection of the books, records, and premises of a home care
organization. An organization's refusal to make those records, books,
or premises available shall constitute cause for the revocation of
the organization's license.
(2) Direct observation of the provision of home care services to a
client in the client's residence, if the client's consent is
obtained.
Article 4. Organization Operating Requirements
1796.21. A home care organization shall do all of the following:
(a) Post its license in its place of business in a conspicuous
location, visible both to clients and to its home care aides.
(b) Maintain a physical address.
(c) Have both of the following policies in place:
(1) A written policy regarding advance directives.
(2) A receipt and disbursement policy for expenditures made on
behalf of a client to ensure that financial abuse does not occur.
(d) Maintain a valid workers' compensation policy covering its
home care aides.
(e) Maintain an employee honesty bond, including third-party
coverage, with a minimum limit of ten thousand dollars ($10,000).
(f) Comply with the regulations adopted by the department pursuant
to this chapter.
1796.23. With respect to home care aides employed by a home care
organization, the organization shall do all of the following:
(a) Investigate complaints made by a client, or a client's family
member or guardian, against home care aides regarding a service that
is or fails to be furnished. The organization shall document both the
existence and the resolution of those complaints.
(b) Evaluate home care aides by conducting an annual assessment of
the performance and effectiveness of each home care aide. The
evaluation shall include, if client consent is obtained, at least one
observation of the aide providing home care services in the
residence of a client.
(c) Ensure that a home care aide, when providing services to a
client, has access at all times to a representative of the
organization who is in a supervisory capacity.
(d) Require a home care aide, while providing home care services,
to carry an organization approved identification card. Alternatively,
the organization may require the home care aide, while providing
services to a client, to wear a badge that includes all of the
following information in 14-point type or larger:
(1) The aide's name.
(2) A photograph of the aide.
(3) The name and phone number of the home care organization.
(e) Require home care aides to demonstrate that they are free of
active tuberculosis pursuant to Section 1796.35.
(f) Require home care aides to annually complete not less than two
hours of training on job-related topics.
(g) Prohibit home care aides from accepting money or property from
a client without written permission from the home care organization.
(h) Oversee the care of the client, including supervisory visits
and updates to the plan of care as necessary.
Article 5. Client Rights
1796.25. With respect to clients, a home care organization shall
do all the following:
(a) Advise a client of any change in the client's plan for home
care services.
(b) Before arranging for the provision of home care services to a
client, do all of the following:
(1) Advise the client of its policy regarding the disclosure of
client records.
(2) Inform the client of the types and hours of available home
care services.
(3) Inform the client, orally and in writing, of the home care
services that are or are not covered by Medi-Cal or Medicare, as
applicable, and the extent to which payment may be expected from the
client, from Medicare or Medi-Cal, and from any other source.
(c) Have a written agreement with the client that includes, but is
not limited to, the cost of and the hours during which home care
services will be provided to the client and reference to the personal
attendant requirements, if applicable, as referenced in Wage Order
15-2001, issued by the Industrial Welfare Commission.
1796.27. (a) Home care clients are entitled to the following
rights:
(1) The right to have the client's property treated with respect.
(2) The right to voice grievances free from reprisal regarding a
home care service that is or fails to be provided or regarding the
violation of any of the rights listed in this section.
(3) The right to be informed of and to participate in the planning
of the client's home care services.
(4) The right to confidentiality of the client's personal
information.
(b) Before arranging for the provision of home care services to a
client, a home care organization shall provide a written notice to
the client stating that the client has all of the rights enumerated
in subdivision (a).
(c) A home care organization shall maintain written documentation
showing that it has complied with subdivision (a).
(d) If a client lacks the capacity to understand the rights listed
in this section, as determined by a court of competent jurisdiction
or by the client's physician, unless the physician's opinion is
controverted by the client or the client's legal representative, the
client's legal representative shall have those rights.
(e) A home care organization shall protect, and promote the
exercise of, the rights listed in this section.
Article 6. Home Care Aides
1796.29. (a) On and after January 1, 2012, a home care
organization shall not hire an individual as a home care aide unless
the individual complies with all of the following requirements:
(1) Completes, to the satisfaction of the organization, an
individual interview.
(2) Provides not less than two work or school related references
or, for an individual with no previous work experience, not less than
two character references from nonrelatives. The organization shall
verify the references before hiring the individual.
(3) Demonstrates that he or she has language skills that are
sufficient to read and understand instructions, prepare and maintain
written reports and records, and communicate with a client.
(b) A home care organization that hires an individual pursuant to
subdivision (a) shall ensure that the individual, within the first 30
days of employment, demonstrates basic competency in all of the
following areas:
(1) Universal health precautions, including, but not limited to,
infection control.
(2) Client rights.
(3) Client safety.
(4) The home care organization's emergency procedures.
(5) How to observe, report, and document changes in a client's
daily living skills.
(6) How to report, prevent, and detect abuse and neglect.
(7) How to assist a client with personal hygiene and other home
care services.
(8) If the home care organization provides transportation
services, how to safely transport a client.
1796.31. A home organization shall, by January 1, 2013, ensure
that home care aides who were hired before January 1, 2012, meet both
of the following requirements:
(a) Demonstrate the language skills specified in paragraph (3) of
subdivision (a) of Section 1796.29.
(b) Demonstrate basic competency in the areas specified in
subdivision (b) of Section 1796.29.
1796.33. (a) A home care organization shall conduct a background
clearance on an individual hired as a home care aide, unless the
individual holds a valid, unexpired license or registration in a
health-related field that requires a background check
requires, as a condition of the license or
registration , a background check or a criminal history record
check as specified in subdivision (b) .
(b) The background clearance shall consist of either of
the following:
(1) A criminal history record check conducted by the California
Department of Justice and the Federal Bureau of Investigation and
administered by the Community Care Licensing Division within the
State Department of Social Services, so that a home care aide may
also be allowed to provide services within a residential care
facility for the elderly.
(2) A background check conducted by an investigative consumer
reporting agency, as defined in Section 1786.2 of the Civil Code.
This background check shall include, but shall not be limited to, all
of the following:
(A) A social security number trace that provides the individual's
residential history and prior names.
(B) A criminal history search in all counties and federal
districts in which, as disclosed by the individual and according to
the results of the trace specified in subparagraph (A), the
individual has resided, worked, or attended school within the past
seven years.
(C) A search of a commercial criminal record database using both
the current and any previous names of the individual, as disclosed by
the individual and according to the results of the trace specified
in subparagraph (A).
(c) If the background clearance conducted pursuant to subdivision
(b) discloses a conviction for a violation of any of the following
provisions of the Penal Code, the organization shall deny or
terminate, as applicable, the employment of that individual:
(1) Section 187, 203, 205, 206, 207, 209, 210, 210.5, 211, 220,
222, 243.4, 245, 261, 262, 264.1, 265, 266, 267, 273.5, 285, 288,
288.5, 289, 289.5, 368, 451, 459, 470, 475, 484, 484b, 484d, 484e,
484f, 484g, 484h, 484i, 484j, 487, 488, 496, 503, 518, or 666.
(2) Subdivision (a) of Section 192.
(3) Subdivision (a) or (d) of Section 273.
(4) Subdivision (c), (d), (f), or (g) of Section 286.
(5) Subdivision
(c), (d), (f), or (g) of Section 288a. a criminal
history record check conducted by the Department of Justice and
administered by the State Department of Social Services.
(c) The organization shall deny or terminate, as applicable, the
employment of an individual if the background check required by
subdivision (b) discloses that it has been less than 10 years since
the date of a conviction for, or the date of incarceration following
a conviction for, any of the following:
(1) Fraud against a government health care or supportive services
program, including, but not limited to, Medicare, Medicaid, or
services provided under Title V, Title XX, or Title XXI of the
federal Social Security Act, or a violation of subdivision (a) of
Section 273a of the Penal Code, Section 368 of the Penal Code, or
similar violations in another jurisdiction.
(2) A violent or serious felony, as specified in subdivision (c)
of Section 667.5 of the Penal Code or subdivision (c) of Section
1192.7 of the Penal Code.
(3) A felony offense for which a person is required to register
pursuant to subdivision (c) of Section 290 of the Penal Code. For
purposes of this paragraph,
the 10-year time period specified in this section shall commence with
the date of conviction for, or the date of incarceration following a
conviction for, the underlying offense and not the date of
registration.
(d) Notwithstanding subdivision (c), the organization shall not
deny or terminate the employment of any individual pursuant to this
section if the individual has obtained a certificate of
rehabilitation pursuant to Chapter 3.5 (commencing with Section
4852.01) of Title 6 of Part 3 of the Penal Code or the information or
accusation against the individual has been dismissed pursuant to
Section 1203.4 of the Penal Code.
(e) Notwithstanding subdivision (c), an individual who has been
convicted of an offense identified in subdivision (c) may seek from
the department a general exception to the exclusion provided for in
this section. In determining whether to grant a general exception,
the department shall consider as evidence of good character and
rehabilitation the following factors:
(1) The nature and seriousness of the conviction under
consideration and its relationship to the individual's employment
duties and responsibilities.
(2) Activities since conviction that would indicate changed
behavior, including, but not limited to, employment, participation in
therapy, or education.
(3) The time that has elapsed since the commission of the crime
and the number of offenses.
(4) The extent to which the individual has complied with any terms
of parole, probation, restitution, or any other sanction lawfully
imposed against the individual.
(5) Any rehabilitation evidence submitted by the individual,
including, but not limited to, character references.
(6) Employment history and current employer recommendations.
(7) Circumstances surrounding the commission of the crime that
would demonstrate the unlikelihood of repetition.
(f) Upon determination to deny a request for exception, the
department shall notify the individual of this determination by
either personal service or registered mail, and this notice shall
include all of the following:
(1) A statement of the department's reasons for the denial. This
statement shall evaluate any evidence of rehabilitation submitted by
the individual, and specifically address any evidence submitted
relating to the factors considered in subdivision (e).
(2) A copy of the individual's criminal offender record
information search response. The department shall provide this
information in a manner that protects the confidentiality and privacy
of the criminal offender record information search response.
(A) The state criminal history record shall not be modified or
altered from its form or content as provided by the Department of
Justice.
(B) The department shall record the date the response was provided
by the Department of Justice and the date the department provided
the copy of the response to the individual.
(C) The criminal offender record information search response shall
not be made available by the department to any individual other than
the applicant.
(g) (1) An individual whose request for an exception has been
denied may request an administrative hearing by submitting a written
request to the department within 15 business days of receipt of the
written notice pursuant to subdivision (f).
(2) The department shall hold an administrative hearing upon
receipt of the written request from the individual pursuant to
paragraph (1). The administrative hearing shall be consistent with
the procedures specified in Section 100171 of the Health and Safety
Code, except where those procedures are inconsistent with this
section. The administrative hearing shall be conducted by a hearing
officer or administrative law judge designated by the director.
(3) The hearing officer or administrative law judge shall make a
written decision that shall be sent by certified mail to the
individual who requested the hearing.
(d)
(h) The organization shall complete the background
clearance specified in subdivision (b) on home care aides whose
employment began before January 1, 2012, within 180 days of the
effective date of this section.
(e)
(i) A home care aide hired on or after January 1, 2012,
shall not be permitted to provide home care services until he or she
passes the background clearance or has been granted a general
exception by the department pursuant to this section.
1796.35. (a) An individual hired as a home care aide on or after
January 1, 2012, shall be terminated from employment unless the
individual submitted to an examination within six months prior to
employment or submits to an examination within 14 days after
employment to determine that the individual is free of active
tuberculosis. For purposes of this section, "examination" consists of
a tuberculin skin test and, if that test is positive, an X-ray of
the lungs.
(b) A home care aide whose employment with a home care
organization began before January 1, 2012, shall, within 60 days of
the effective date of this section, submit to the examination
described in subdivision (a).
(c) After submitting to an examination, a home care aide who is
skin test negative shall be required to undergo an examination at
least once every two years. Once a home care aide has a documented
positive skin test that has been followed by an X-ray, the
examination is no longer required.
(d) After the examination, a home care aide shall submit, and the
organization shall keep on file, a certificate from the examining
practitioner showing that the home care aide was examined and found
free from active tuberculosis.
(e) The examination shall be a condition of initial and continuing
employment with the home care organization. The home care aide shall
pay the cost of the examination.
(f) A home care aide who transfers employment from one
organization to another shall be deemed to meet the requirements of
subdivision (a) or (b) if that individual can produce a certificate
showing that he or she submitted to the examination within the past
two years and was found to be free of communicable tuberculosis, or
if it is verified by the organization previously employing him or her
that it has a certificate on file which contains that showing.
(g) Notwithstanding the results of an examination, a home care
aide shall annually complete a tuberculosis survey that includes, but
is not limited to, all of the following information:
(1) The individual's name, address, and telephone number.
(2) The date and result of all previous tuberculin skin tests and,
where applicable, all X-ray examinations.
(3) Answers to questions concerning whether the individual has
recently experienced any of the following symptoms:
(A) A chronic cough for a period exceeding two weeks.
(B) Chronic fatigue or listlessness for a period exceeding two
weeks.
(C) Fever for a period exceeding one week.
(D) Night sweats.
(E) Unexplained weight loss.
Article 7. Revenues
1796.37. There is in the State Treasury the Home Care
Organization Fund. Notwithstanding Section 13340 of the Government
Code, all money in the fund is continuously appropriated to the
department for the purpose of carrying out and enforcing this
chapter.
1796.39. The department shall assess fees for each location of a
home care organization in amounts sufficient to cover the costs of
administering this chapter. The department may periodically adjust
these fees for inflation. The fees collected pursuant to this chapter
shall be deposited in the Home Care Organization Fund. The
department shall work consult with the state home
care industry association in developing the fee methodology.
Article 8. Enforcement and Penalties
1796.40. (a) A home care organization operating in violation of
this chapter or any rule adopted hereunder may be subject to the
penalties or fines levied or licensure action taken by the department
as specified in this section.
(b) When the department determines that a home care organization
is in violation of this chapter or any regulations adopted hereunder,
a notice of violation shall be served upon the licensee. Each notice
of violation shall be prepared in writing and shall specify the
nature of the violation and the statutory provision or regulation
alleged to have been violated. The notice shall inform the licensee
of any action the department may take under this chapter, including
the requirement of an agency plan of correction, assessment of a
penalty, or action to suspend, revoke, or deny renewal of the
license. The director or his or her designee shall also inform the
licensee of rights to a hearing under this chapter.
(c) The department may impose an administrative fine of up to four
hundred dollars ($400) per day commencing on the date the violation
was identified and ending on the date the violation is corrected, or
action is taken to suspend, revoke, or deny renewal of the license,
whichever comes first.
(d) In determining the penalty or licensure action, the director
shall consider all of the following factors:
(1) The gravity of the violation, including the probability that
death or serious physical or mental harm to a client will result or
has resulted, the severity of the actual or potential harm, and the
extent to which the provisions of the applicable statutes or
regulations were violated.
(2) The reasonable diligence exercised by the licensee and efforts
to correct violations.
(3) Any previous violations committed by the licensee.
(4) The financial benefit to the home care organization of
committing or continuing the violation.
(e) The department shall adopt regulations establishing procedures
for notices, correction plans, appeals, and hearings. In developing
the procedures, the department shall convene and consult with a
working group of affected stakeholders.