BILL ANALYSIS �
AB 899
Page 1
Date of Hearing: April 26, 2011
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall Jr., Chair
AB 899 (Yamada) - As Amended: March 31, 2011
SUBJECT : The Home Care Services Act of 2011
SUMMARY : Establishes the Home Care Services Act of 2011 (HCSA)
to license and regulate home care organizations providing
services for the elderly, frail and persons with disabilities.
Specifically, this bill :
1)Makes Legislative findings and declarations, as follows:
a) Seniors, individuals with disabilities, and the frail
frequently need part-time to full-time assistance from a
caregiver in order to live independently;
b) The Employment Development Department has identified
home care services as one of the fastest growing fields;
c) Most people hiring home care organizations incorrectly
believe that home care aides are thoroughly screened and
trained; however, the only requirement to provide
nonmedical home care services in an individual's home is a
business license;
d) The incidence of abuse and neglect by home care aides is
alarming, in part because for every incident receiving
public exposure, four others go unreported; and,
e) Discharge planners maintaining referral lists of home
care aides and home care organizations lack information
about the individuals or organizations, placing the
individuals and referring organizations at risk.
2)Establishes the Home Care Services Act of 2011, and requires
the State Department of Social Services (DSS) to administer
and enforce the law.
3)Defines "home care aide" to mean an individual providing home
care services to a client in the client's residence, and
includes a person who is an individual who qualifies as a
personal attendant as defined by the Industrial Welfare
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Commission.
4)Defines "home care organization" to mean an individual,
partnership, corporation, joint venture 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, but does not
include home care services provided by a licensed home health
agency, a licensed hospice, a licensed health facility, an
organization providing only housekeeping, and a county
providing in-home supportive services pursuant to the In-Home
Supportive Services (IHSS) program.
5)Prohibits any individual, partnership, corporation,
association or other entity from arranging for the provision
of home care services by a home care aide to a client without
first obtaining a license pursuant to the act, violation of
which subjects the individual or entity to a civil penalty of
up to $400 per day.
6)Requires DSS to send written notice of noncompliance to the
Attorney General or district attorney, who may as a result
issue a cease and desist order, impose the civil penalty or
bring an action under the Unfair Business Practices Act,
Business and Profession Code �17200.
7)Prohibits any private or public organization not licensed
under the HCSA, with the exception of a county providing
services under the IHSS program, from representing itself to
be a home care organization or using any variant of the words
"home care" within its name.
8)Requires DSS to adopt rules and regulations to implement the
act, establish procedures for the receipt, investigation and
resolution of complaints, and make available on the
department's Web site identifying information about each home
care organization.
9)Requires DSS to issue a license for a period of one year,
subject to renewal, to a home care organization meeting
prescribed requirements:
a) Submits an application, pays a licensure fee, submits
proof of liability insurance in specified amounts, and
submits proof of a valid workers' compensation policy
covering its home care aides; and
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b) Passes a background clearance and complies with other
requirements of the act.
10)Requires denial of a license if the background check of the
owner of a home care organization "discloses a conviction for
a felony or a crime that evidences an unfitness to operate a
home care organization."
11)Requires DSS to investigate complaints filed against home
care organizations, and establishes procedures for DSS
verification through periodic inspections scheduled in advance
that a home care organization meets the requirements if the
HCSA.
12)Establishes operating requirements for home care
organizations, including:
a) Posting of its license in a conspicuous location, and
adoption of policies regarding advance directives and
receipt and disbursement of clients' funds; and
b) Maintaining valid workers' compensation coverage and an
employee dishonesty bond, and complying with regulations
adopted by DSS to implement the HCSA.
13)Establishes requirements for home care organizations with
respect to home care aides, as follows:
a) Investigating complaints by clients or family members
against home care aides;
b) Evaluating home care aides through annual assessments,
including, if client consent is obtained, at least one
observation of the aide providing home care services in the
client's residence;
c) Ensuring that home care aides, while providing services
to a client, have access at all times to a supervisor with
the home care organization;
d) Requiring that home care aids carry an approved
identification card or badge;
e) Demonstrating that home care aides are free of
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tuberculosis;
f) Requiring that home care aides annually complete not
less than 2 hours of job-related training; and,
g) Overseeing client care, including supervisory visits and
updates to the plan of care as necessary.
14)Establishes requirements on home care organizations to
protect clients' rights, as follows:
a) Advising clients of any change in the client's plan for
home care services;
b) Informing clients of the types and hours of available
home care services;
c) Informing the client on services covered by Medi-Cal or
Medicare, and the extent to which payment may be expected
from the client or other sources; and,
d) Having a written agreement with the client that includes
the costs of and hours during which services will be
provided and reference.
15)States home care clients' entitlement to, and requires that
the home care organization provide a written notice to the
client of, the following enumerated rights:
i) To have client's property treated with respect;
ii) To voice grievances free from reprisal regarding a
home care service or violation of rights;
iii) To be informed of and participate in the planning of
the client's services; and
iv) To confidentiality of the client's personal
information.
16)Confers the client's rights upon the client's legal
representative if the client lacks the capacity to understand
the rights, as determined by a court of competent jurisdiction
or the client's physician, unless the physician's opinion is
controverted by the client or client's legal representative.
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17)Requires home care organizations to protect and promote the
exercise of the foregoing clients' rights.
18)Establishes requirements and procedures regarding the
employment of home care aides by home care organizations,
including:
a) An individual interview, not less than two work or
school references and two character references,
demonstration of language skills sufficient to read and
understand instructions and prepare written reports and
records;
b) Demonstration of competency in several specified areas,
including client rights and safety, universal health
precautions, emergency procedures, living skills, abuse and
neglect, personal hygiene and safe transport of a client;
c) Background clearances of home care aides, unless the
individual holds a valid, unexpired license or registration
in a health-related field that requires a background check
as a condition of licensure or registration:
i) Completion of the background check on aides employed
before January 1, 2012, within 180 days of the effective
date of the act; and
ii) A prohibition on the provision of home care services
by a home care aide hired after January 1, 2012, until he
or she passes the background clearance.
d) Prohibition on hiring or retaining a home care aide if
the background clearance discloses a conviction for a
violation of any of a specified list of Penal Code
provisions.
e) Submission to an examination to determine that the
individual is free of active tuberculosis within 14 days
after employment, and subsequent submission to an
examination at least once every two years, costs of which
shall be paid by the home care aide.
19)Establishes in the State Treasury the Home Care Organization
Fund, in which all money in the fund is continuously
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appropriated to DSS for the purpose of carrying out the act.
20)Requires DSS to assess licensure, renewal, background check
and other fees for each location of a home care organization
in amounts sufficient to cover the costs of administering the
act, which fees may be periodically adjusted for inflation, to
be deposited in the Home Care Organization Fund.
21)Provides for penalties, fines or licensure action by DSS for
violation of the HCSA, as follows:
a) Requires that, when DSS determines that a violation has
occurred, a written notice of violation be served on the
licensee specifying the nature of the violation and the
statutory or regulatory provision alleged to have been
violated, informing the licensee of DSS' proposed action,
which may include a plan of correction, assessment of a
penalty, or action to suspend, revoke or deny renewal of
the license;
b) Requires that DSS inform the licensee of the right to a
hearing;
c) Authorizes DSS to impose an administrative fine of up to
$400 per day; and,
d) Provides that, in determining the penalty or licensing
action, DSS shall consider:
i) The gravity of the violation, the severity of the
actual or potential harm, and the extent to which the
applicable statutes or regulations were violated;
ii) The reasonable diligence exercised by the licensee
and efforts to correct the violation;
iii) Any prior violations committed by the licensee; and,
iv) The financial benefit to the home care organization
of committing or continuing the violation.
e) Requires DSS, in consultation with a working group of
affected stakeholders, to adopt regulations governing the
notice, correction plan, appeal, and hearing processes
under the HCSA.
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EXISTING LAW
1)Provides for the licensing and regulation of various
nonmedical residential and nonresidential community care
facilities by DSS and provides for the licensing and
regulation of healthcare facilities by the Department of
Public Health (DPH).
2)Establishes the IHSS program, administered at the state level
by DSS, to provide personal services and home care for
eligible poor aged, blind and disabled individuals.
FISCAL EFFECT : Unknown
COMMENTS : This bill creates a regulatory and licensing
framework for home care services provided to persons in their
private residences. As stated by the sponsor, the California
Association for Health Services at Home (CAHSAH):
In order to avoid institutionalization, individuals
who require support with daily living skills have
turned to private home care organizations that provide
services through home care aides. ? In California
there is no regulation of private sector home care
services, despite being regulated in over half of all
states. As a result, there is great opportunity for
unethical practices, abuse, and misconduct impacting
consumers and the employees. With the rapid and
persistent growth of the aging population, a
burgeoning underground economy, and an unwary and
vulnerable consumer base, the protections and
stabilization offered by �this bill] are necessary
now, more than ever.
According to the California Healthcare Foundation (CHCF), the
number of Californians age 65 and older-those most likely to
need extended care at home or in nursing homes-is likely to more
than triple between 2000 and 2050, with the group age 85 and
older experiencing the largest increase. CHCF reports that the
use of personal care services in California increased 33.6
percent from 2003 to 2007, surpassing nursing home admissions to
become the most used long-term care service in the state.
The Senate Office of Oversight and Outcomes released a report on
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April 21, 2011, entitled Caregiver Roulette: California Fails to
Screen those who Care for the Elderly at Home. The report
concludes that "the current landscape is creating risk for
consumers that could be alleviated by legislation, ranging from
full-scale licensing to narrower measures to help clients obtain
and understand criminal background checks and other records."
The report notes, for example, that very few people who hire
caregivers from on-line services understand or take advantage of
their legal right to order a statewide criminal background check
through the Department of Justice (DOJ).
Background on home care services
There are three essential means of providing care to seniors and
persons with disabilities in their own homes.
IHSS program . This is a publicly-funded program
administered by counties and DSS providing in-home care to
low-income elderly and disabled persons.
Home health agencies . These are organizations licensed
by DPH to provide both skilled nursing and non-medical
personal assistance services. Home health aides assist
clients with personal services according to a plan of
treatment prescribed by a physician.
Home care agencies . These organizations employ workers
to provide many of the same services provided by home
health aides, but do not perform any medical services such
as changing non-sterile dressings, taking vital signs, etc.
No state or local agency regulates and licenses these
providers. It is this category of care that is the subject
of this bill.
The regulatory scheme
This bill creates a licensing and regulatory system directly
applicable to "home care organizations," which are responsible
for following rules governing their operations, and which are
responsible for assuring that home care aides meet defined
standards. Under this bill, aides must be subjected to a
criminal background clearance and are ineligible to work if they
have been convicted of any of a specified list of crimes. They
must also be screened for tuberculosis, have access to a home
care consultant during their hours of service, must demonstrate
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competency in specified areas, including health precautions,
clients rights and safety, and language skills sufficient to be
able to read and understand instructions and prepare written
reports and records.
Additionally, this bill requires that home care organizations
protect and recognize clients' rights by providing written
notices of policies such as costs and hours of service, advance
directives, health care coverage, treatment of property and
confidentiality.
State responsibility for enforcing the licensing and regulations
is assigned to DSS, which is given authority to adopt rules and
regulations to implement the act, establish procedures to
investigate and resolve complaints, and make available
information about home care organizations on its Web site .
The Community Care Licensing Division of DSS licenses and
regulates community care facilities under the Community Care
Facilities Act and Community Care Facilities for the Elderly
Act. This function relates to the operation of care
"facilities"; it does not license individual providers in
private homes. DSS does, however, administer the IHSS program,
which provides for supportive care in the private homes of
low-income aged, blind and disabled consumers.
Concerns and opposition
The Service Employees International Union (SEIU) suggests that
the training workers receive should be developed with input from
consumer and worker representatives and that certification of
workers should include annual continuing education on
information and practices related to their work to ensure
caregivers remain current with their job skills. SEIU also
proposes that licensure and regulation of home care
organizations be done by DPH, which currently regulates home
health agencies, rather than DSS. In addition, SEIU proposes
that the licensing agency should include on its Web site a list
of home care aides who have a certificate to perform services
after completing required training and a DOJ background check.
SEIU's proposals reflect differences between this bill and SB
411 (Price), an SEIU-sponsored bill similar to this bill. (See
below.)
East Bay Community Law Center (EBCLC) opposes this bill unless
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amended based on concerns that the prohibition on employment of
individuals as home care workers with criminal convictions is
overbroad, and that the prohibition on licensing if the
background check of the owner reveals conviction for any crime
that "evidences an unfitness to operate a home care
organization," is both overbroad and vague. Both prohibitions
constitute lifetime bans. EBCLC urges amending this bill by
limiting the prohibition on licensees to convictions that are
"substantially job related." EBCLC also says that this bill
should be amended to allow an exemption process for those who
can provide evidence of their rehabilitation, and that
rehabilitation should be presumed if the applicant has obtained
a certification of rehabilitation or expungement pursuant to
Section 1203.4 of the Penal Code. Without these amendments,
EBCLC says, the background check provisions of this bill would
violate due process rights as recognized by federal courts and
the California Supreme Court.
Is the author willing to consider amendments addressing EBCLC's
concerns? The author and sponsor of this bill may want to refer
to the July 6, 2009 amended version of SB 774 (Ashburn 2009) for
an example of how similar issues to those raised by EBCLC here
were addressed in a different context-employment of county child
welfare social workers.
Prior legislation
This bill is similar to a 2007 bill, AB 853 (Jones), which
likewise would have provided for the licensing and regulation of
home care organizations. AB 853 was passed by this Committee
(on a 6-0 vote) but was held on the Assembly Appropriations
Committee Suspense File. This bill differs in a number of
details from AB 853, including, most significantly, the
following:
This bill explicitly prohibits organizations from
representing themselves as a home care agency unless they
are licensed.
The civil penalties under AB 853 were $100 per day; the
civil penalties under this bill are $400 per day.
AB 853 required DSS to investigate complaints; this bill
requires DSS to review and, if it determines it necessary,
investigate complaints.
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Other pending bills :
SB 411 (Price) : Enacts the Home Care Services Act of 2011,
which would provide for the licensure and regulation of home
care organizations by DPH, excluding entities that provide
services under the IHSS program. SB 411 is also similar to AB
853 (Jones 2007) but would also require the certification of all
long-term care workers.
AB 889 (Ammiano & V. M. P�rez) : Regulates the wages, hours, and
working conditions of domestic work employees, as defined.
PROPOSED AMENDMENTS
The California Hospital Association (CHA) and the California
Assisted Living Association (CALA) suggest amendments to clarify
the definitions of "home care organization" and "home care
services," respectively. The author is reportedly agreeable to
these clarifications as author's amendments, as set forth below.
Amend Section 1796.2(d), page 3, line 32 - page 4, line 3, as
follows:
(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 does not include any of the
following:
(1) A licensed home health agency under Chapter 8
(commencing with Section 1725).
(2) A licensed hospice pursuant to Chapter 8.5 (commencing
with Section 1745).
(3) A licensed health facility pursuant to Chapter 2
(commencing with Section 1250).
(4) 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, without regard to whether the county
provides these services as a public authority or through a
nonprofit consortium established pursuant to Section
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12301.6 of the Welfare and Institutions Code.
Amend Section 1796.2(e)(2), page 4, lines 4-15, as follows:
(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) Organizations that provide only housekeeping.
(F) Services authorized to be provided by a licensed
Residential Care Facility for the Elderly pursuant to
Chapter 3.2 (commencing with Section 1569) of Division 2.
DOUBLE REFERRAL . This bill has been double-referred. Should
this bill pass out of this committee, it will be referred to the
Assembly Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association for Health Services at Home (CAHSAH)
(sponsor)
Accredited Nursing Care
Alzheimer's Association, California Council
Ambassadors Providing Amazing Care, Inc.
American Federation of State, County and Municipal Employees
(AFSCME)
CARE PLUS Nursing Services, Inc.
CareAssist Services
Competent Care Home Health Nursing
Home Care Professionals, Inc.
Hospice Foundation of the East Bay
Independence at Home, Inc.
Maxim Healthcare Services
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Right at Home
Synergy Home Care
Visiting Angels Living Assistance Services
147 individuals
Opposition
East Bay Community Law Center (EBCLC) (unless amended)
Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089