BILL ANALYSIS �
AB 899
Page 1
Date of Hearing: May 3, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 899 (Yamada) - As Amended: April 28, 2011
As Proposed to Be Amended
SUBJECT : THE HOME CARE SERVICES ACT OF 2011
KEY ISSUES :
1)SHOULD ORGANIZATIONS SEEKING TO PROVIDE HOME CARE SERVICES TO
TYPICALLY ELDERLY AND DISABLED CLIENTS BE LICENSED AND
REGULATED BY THE DEPARTMENT OF SOCIAL SERVICES, AS PROVIDED?
2)IN ORDER TO PROTECT THE VULNERABLE CLIENT POPULATION FOR THESE
SERVICES, SHOULD PERSONS SEEKING EMPLOYMENT BY A LICENSED HOME
CARE ORGANIZATION BE SUBJECT TO BACKGROUND CLEARANCE
REQUIREMENTS AND DUE PROCESS PROTECTIONS THAT SIMILARLY APPLY
TO IN-HOME SUPPORTIVE SERVICE (IHSS) PROVIDERS?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill would create a regulatory and licensing framework, to
be administrated and enforced by the Department of Social
Services (DSS), for private organizations who employ home care
aides to visit clients in their homes to provide non-medical
services such as bathing, dressing, and food preparation. The
author and the sponsor of the bill, the California Association
of Health Services at Home (CAHSAH), prudently seek to
strengthen consumer protections for the vulnerable population of
Californians-typically, the frail, elderly, or disabled-who are
most in need of the services currently provided by home care
organizations operating in a largely unregulated marketplace.
Among other things, this bill would establish requirements for
licensure of home care organizations, require background checks
for the organization's owners and the home care aides they
employ, establish skills and training requirements for home care
aides, and establish a client bill of rights. Responding to
concerns about inadequate due process protections and possible
non-compliance with EEOC guidelines on Title VII of the Civil
Rights Act, the author proposes to amend the bill to incorporate
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due process provisions that DSS already observes with respect to
its regulation of IHSS providers and that appear to bring the
bill in compliance with civil rights law and other state law.
This bill is supported by AFSCME, the Alzheimer's Association
and the California Hospital Association, and as proposed to be
amended, has no known opposition, although SEIU, sponsors of a
competing Senate Bill on the same subject, have expressed
"concerns" with the bill. This bill was previously approved by
the Assembly Human Services Committee by a 4-2 vote.
SUMMARY : Establishes the Home Care Services Act of 2011 to
license and regulate home care organizations and their employees
that provide certain home care services to typically elderly,
frail, or disabled clients. Specifically, this bill :
1)Defines "home care services" to mean 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, including but 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.
2)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.
3)Requires the Department of Social Services (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.
4)Requires a home care organization to obtain a license from
DSS, to be renewed every year, by meeting prescribed
requirements, including payment of a licensure fee, proof of
liability insurance and a valid workers' compensation policy,
and satisfaction of background clearance requirements for each
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owner of the organization having at least a 5-percent or
greater interest in the organization.
5)Allows DSS to deny the application for a license if the
background clearance of the license applicant discloses a
conviction for a crime that is substantially related to the
qualifications, functions, or duties of operating a home care
organization, except if the applicant has obtained a
certificate of rehabilitation, as provided.
6)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.
7)Establishes operating requirements for home care
organizations, including but not limited to the investigation
of client complaints and annual performance assessments of
home care aides.
8)Establishes requirements for the protection of clients'
rights, including but not limited to the right to be advised
of any change in the client's plan for home care services and
to receive a written agreement that includes the costs of and
hours during which services will be provided.
9)Establishes requirements and procedures for the employment of
home care aides, including:
a) 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;
b) Submission to an examination to determine that the
individual is free of active tuberculosis within 14 days
after employment, and subsequent examination at least once
every two years, costs of which shall be paid by the home
care aide.
c) Satisfaction of a background clearance, unless the
applicant for employment holds a valid, unexpired license
or registration in a health-related field that requires a
background check as a condition of licensure or
registration.
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i) Requires denial or termination of employment if the
background clearance discloses a conviction for violation
of specified Penal Code offenses within the last 10
years.
ii) Upon denial, permits the applicant to seek a general
exception from the department and to request an
administrative hearing if a request for exception has
been denied.
10)Provides for penalties, fines or licensure action by DSS for
violation of the HCSA, as specified, and among other things:
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, and the right to a hearing.
b) Authorizes DSS to impose an administrative fine of up to
$400 per day until the violation is corrected or action is
taken to suspend, revoke, or deny renewal of the license.
c) 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;
iv) The financial benefit to the home care organization
of committing or continuing the violation.
EXISTING LAW :
1)Establishes the In-Home Supportive Services program in each
county, administered at the state level by the Department of
Social Services, to provide personal services and domestic
services (home care), as defined, for eligible poor aged,
blind and disabled individuals. (Article 7 of Chapter 3 of
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Part 3 of Division 9 of the Welfare & Institutions Code,
commencing with Section 12300.)
2)Requires the county to investigate the background of any
person who seeks to become a supportive services provider,
including a criminal background check conducted by the
Department of Justice, and provides that a person shall not be
eligible to provide or receive payment for providing
supportive services for 10 years following a conviction of
specified offenses under the Penal Code. (Welfare &
Institutions Code Section 12305.86, 12305.87.)
3)Provides for the licensing and regulation of various
nonmedical residential and nonresidential community care
facilities by DSS, including community care facilities (Health
& Safety Code Section 1559.110), residential care facilities
for the elderly (Health & Safety Code Section 1569.11), and
adult day health care centers (Health & Safety Code Section
1575.1).
4)Provides for the licensing and regulation of healthcare
facilities by the Department of Public Health. (Article 1 of
Chapter 2 of Division 2 of the Health & Safety Code,
commencing with Section 1250.)
COMMENTS : This bill would create a regulatory and licensing
framework, to be administrated and enforced by the Department of
Social Services (DSS), for private organizations who employ home
care aides to visit clients in their homes to provide
non-medical services such as bathing, dressing, and food
preparation. The author and the sponsor of the bill, the
California Association of Health Services at Home (CAHSAH),
prudently seek to strengthen consumer protections for the
vulnerable population of Californians-typically, the frail,
elderly, or disabled-who are most in need of the services
currently provided by home care organizations operating in a
largely unregulated marketplace. Among other things, this bill
would establish requirements for licensure of home care
organizations, require background checks for the organization's
owners and the home care aides they employ, require training and
skills requirements for home care aides, and establish a client
bill of rights.
Need to protect vulnerable consumers of home care services that
are increasingly in demand. According to the California
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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. ("California Health Care Almanac: Long Term Care
Facts and Figures," Nov. 2009, p. 3.) CHCF also 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. (Id.
at p. 5.)
The increasing demand for home and personal care services in
California is largely occurring in a largely unregulated arena
where home care organizations and individual contractors compete
with each other, advertising their services through the internet
or in newspapers. According to a newly issued report by the
Senate Office of Oversight and Outcomes (SOOO), California is
one of the few states that does not regulate private in-home
care organizations. ("Caregiver Roulette: California Fails to
Screen Those Who Care for the Elderly at Home," April 2011, p.
31.) 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."
This bill represents the author's effort to reduce those risks
to consumers and have California join the majority of states who
regulate providers of home-care services. As the author
explains:
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.
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Comparison of home care services. California law already
regulates providers of in-home care services for seniors and
disabled persons in two other contexts specifically outside the
scope of this bill. Under Division 2 of the Health and Safety
Code, home health agencies are licensed by the Department of
Public Health (DPH) to provide both skilled nursing and
non-medical personal assistance services to their clients. Home
health aides employed by these agencies assist clients with
personal services according to a plan of treatment prescribed by
a physician. Some of these services overlap with those provided
by home care aides sought to be regulated by this bill, but by
contrast, home care aides are prohibited from performing or
assisting with any medical services, such as changing
non-sterile dressings or taking vital signs of the client.
Instead, home care aides are more similar to in-home support
service (IHSS) providers who are similarly regulated by DSS, not
DPH. The IHSS program is a publicly-funded program administered
by counties and DSS that facilitates placement and payment of
persons who provide in-home care to blind, elderly, and disabled
persons who meet certain low-income and eligibility
requirements. A comparison of Section 1796.2(e) of this bill
and the corresponding part of the IHSS statute (WIC Section
12300 (b),(c)) confirms the close similarities between the care
services to be provided under both regulatory schemes. The key
distinction is that the IHSS program is publicly funded to
ensure essential services are provided to the most financially
needy clients, and regulates only those persons who provide
services and receive payment under the program. This bill, on
the other hand, seeks to establish regulation of private home
care agencies and home care aides who provide an almost
identical range of services to elderly and disabled clientele,
but do not participate in or receive payments under the IHSS
program.
Criminal background checks protect consumers of home care
services, but civil rights law and due process considerations
limit the extent to which evidence of a conviction can bar
employment. A key feature of the much needed regulation
established by this bill is the requirement that owners of a
home care organization, as well as the home care aides they
employ, must pass background checks under criteria specified in
the bill, or face denial of a license or employment,
respectively. As highlighted in the Senate Office of Oversight
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and Outcomes report and in press accounts, many consumers of
home care services have unfortunately fallen prey to individuals
who have not disclosed their criminal backgrounds, or whose
services were procured through a home care organization that
failed to conduct a background check sufficient to reveal
evidence of criminal history. Online search resources and some
checks offered by consumer credit report agencies do not
necessarily always produce accurate or complete information
about the subject of the check. However, this can present due
process problems for persons applying to a position if a law
bars employment based on the results of a background check, and
offers no opportunity for the applicant to seek review or
contest such a determination.
Furthermore, if the bar on employment constitutes a lifetime
ban, then the policy appears to violate federal civil rights law
as well. Although there is no federal law that prohibits
discrimination against people with criminal records, the Equal
Employment Opportunity Commission (EEOC) has set guidelines on
how employers can use criminal background records for employment
purposes. Because African-American and Hispanics have higher
rates of criminal convictions, EEOC has stated that a blanket
policy to screen out any applicant with a criminal history will
discriminate against these minorities, and therefore is unlawful
under Title VII of the Civil Rights Act of 1964. (See
http://www.eeoc.gov/policy/docs/convict1.html )
As proposed to be amended, this bill incorporates due process
protections in the current IHSS statute and seeks to ensure
compliance with EEOC guidelines on Title VII. To address dual
concerns that the bill as currently in print appears to contain
a blanket refusal to consider job applicants with a criminal
history and lacks adequate due process protections, the author
has proposed a number of amendments to be adopted in this
Committee. Because of the close similarity between IHSS
providers and home care aides serving essentially the same
client population, the author sensibly proposes to amend the
bill to incorporate due process provisions that DSS already
observes with respect to its regulation of IHSS providers,
pursuant to WIC Sections 12305.86 and 12305.87.
These proposed amendments would: (1) require denial or
termination of employment for specified convictions within the
past 10 years, as disclosed by the DOJ background check (known
as "LiveScan"); (2) allow an exception from denial or
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termination for those who have obtained a certificate of
rehabilitation (long recognized under Penal Code Section 1203.4)
or who can provide evidence of rehabilitation satisfactory to
DSS, as specified; (3) require DSS to provide a specified notice
of denial if a request for exception is denied, including a copy
of the criminal background record attached; (4) permit the
applicant to request an administrative hearing to appeal the
denial of exception, as provided.
In addition, as proposed to be amended, this bill would
harmonize the extensive set of criminal offenses that are
grounds for denial or termination with those offenses that
currently apply to IHSS providers.
As proposed to be amended, this bill seeks to comply with state
law limiting the denial of a license on the basis of a
conviction not "substantially related" to the licensed position.
Under the version of the bill now in print, the application for
a license to operate a home care organization shall be denied by
DSS if the background clearance discloses a conviction for a
crime that "evidences an unfitness" to operate a home care
organization. However, California's professional licensing laws
allow a regulatory board to deny a license because the applicant
was convicted of a crime "only if the crime or act is
substantially related to the qualifications, functions, or
duties of the business or profession" for which the application
is made. (Business & Professions Code Section 480(a)(3)(B).)
Although licensing of home care aides in this bill is not
pursuant to the Business & Professions Code, the author has
proposed to adopt the "substantially related" criteria, and the
due process procedures for contesting denial of a license, that
have applied to dozens of other professions licensed under the
BPC and upheld by California courts since the 1970's. As
proposed to be amended, the bill requires owners and any
individual having a five percent or greater share to consent to
a background clearance in order to obtain a license, and
provides that if the background clearance discloses a conviction
for a crime that is substantially related to the qualifications,
functions, or duties of operating a home care organization, DSS
may deny the application for a license.
Removed Opposition and Letters of Concern. This bill was
"opposed unless amended" by the East Bay Community Law Center,
the ACLU, and the National Employment Law Project (NELP), who
cited near-identical concerns about inadequate due process
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protections and possible non-compliance with EEOC guidelines on
Title VII of the Civil Rights Act of 1964. As proposed to be
amended, all three organizations have officially removed their
opposition on the bill and are now neutral.
The Service Employees International Union (SEIU) writes that it
shares the author's commitment to improve the quality of home
care services for California's aging population, but without
stating official opposition, SEIU expresses "concerns" with the
bill and is "currently unable to support the legislation until
those concerns are addressed." SEIU believes that the bill
should be amended to ensure that home care workers should
receive training that was 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 should 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)-a bill it
sponsors that is also titled "The Home Care Services Act of
2011."
Previous Legislation : AB 853 (Jones) of 2007 is the predecessor
to this bill, and would have similarly provided for the
licensing and regulation of home care organizations and home
care aides, including requirements for background checks. AB
853 was held on the Assembly Appropriations Committee Suspense
File.
Pending Legislation: SB 411 (Price), like this bill, seeks to
regulate and license home care organizations and home care
aides, but with key differences as described above. SB 411
currently is in the Senate Public Safety Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association for Health Services at Home (sponsor)
AFSCME
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Alzheimer's Association
California Hospital Association
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334