BILL ANALYSIS �
SENATE HEALTH
COMMITTEE ANALYSIS
Senator Ed Hernandez, O.D., Chair
BILL NO: SB 411
S
AUTHOR: Price
B
AMENDED: April 7, 2011
HEARING DATE: April 13, 2011
4
REFERRAL: Public Safety
1
CONSULTANT:
1
Trueworthy
SUBJECT
Home Care Services Act of 2011
SUMMARY
Creates the "Home Care Services Act of 2011" which will
require the Department of Public Health to license and
regulate home care organizations.
CHANGES TO EXISTING LAW
Existing law:
Provides for the licensing and regulation of various
healthcare facilities by the Department of Public Health
(DPH).
Establishes home health agencies and requires all
organizations that provide skilled nursing services to
patients in the home to obtain a home health agency license
issued by DPH.
Provides for the licensing and regulation of various
community care facilities by the Department of Social
Services (DSS).
Establishes the Community Care Licensing division (CCL)
Continued---
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under DSS which licenses and oversees both day care and
residential facilities for children and adults in
California.
Establishes the In-home supportive services (IHSS) program,
a county-administered program, to provide personal services
and home care for eligible poor, aged, blind and disabled
individuals.
This bill:
Makes various legislative findings and declarations
regarding home care services.
Creates the "Home Care Services Act of 2011" (Act) to
license and regulate home care organizations under the
Department of Public Health (DPH).
Requires DPH 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 this Act.
Establishes various definitions including defining a "home
care organization" or "organization" to mean an individual,
partnership, corporation, limited liability company, joint
venture, association, or other entity that arranges for the
provision of home care services. "Home care organization"
does not include any county providing in-home supportive
services (IHSS), a home health agency, a hospice facility,
or a health facility defined in Health & Safety 1250.
Also defines "home care services" to mean services provided
by a home care aide to a client who cannot perform these
services for himself or herself. Services include bathing,
dressing, feeding, personal hygiene, transferring,
ambulating, positioning, toileting and incontinence care,
assisting with medication that the client normally
self-administers, housekeeping, meal planning and
preparation, laundry, transportation, correspondence,
making telephone calls, shopping for personal care items or
groceries, and companionship. Home care services shall not
include services provided by a licensed home health agency,
licensed hospice, licensed health facility, or IHSS
services.
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Licensure
Requires an individual, partnership, corporation, limited
liability company, joint venture, association, or other
entity to first obtain a license prior to arranging home
care services by a home care aide to a client.
Requires a home care organization with its principal place
of business in another state to have an office in
California and obtain authorization from the Secretary of
State to conduct business in California.
Requires DPH to adopt rules and regulations to implement
this Act, establish procedures for the receipt,
investigation, and resolution of complaints against home
care organizations, and to make available on their website
a list of home care organizations, including, the
organization's name, address, license number, effective
date of its license, and a list of all serious violations.
Prior to DPH issuing a license, requires a home care
organization to submit an application, pay a licensure fee,
submit proof of general and professional liability, submit
proof of a valid workers' compensation policy, pass a
background clearance, and provide DPH with a list of all of
its home care aides.
Requires DPH to conduct an onsite inspection of the
applicant to ensure compliance with this chapter following
receipt of an application for a license or renewal of a
license.
Requires the owners of a home care organization to submit
to a background clearance.
Requires DPH to deny a license if the background clearance
discloses a conviction for a felony or a crime that
evidences an unfitness to operate a home care organization.
Prohibits an organization from representing itself as a
home care organization or from
using the words "home care organization," "homecare,"
"in-home care," or any combination of those terms, within
its name unless they are a licensed as a home care facility
pursuant to this legislation.
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Home care organization: operating requirements
Requires a home care organization to do all of the
following:
Post its license in its place of business in a
location visible to clients and its
home care aides.
Operate the organization in a commercial office
space that complies with local
zoning ordinances.
Have plans, procedures, and policies in place,
including the following:
o Plans and procedures to be followed in
the event of emergencies or
natural disasters that would result
in the interruption of home care
services;
o A documented backup staffing plan in the
event that a home care aide
scheduled to provide home care
services becomes unavailable;
o A written policy regarding advance
directives; and
o A receipt and disbursement policy for
expenditures made on behalf of
a client to ensure that financial
abuse does not occur.
Maintain an employee dishonesty bond, including
third-party coverage, with a
minimum limit of ten thousand dollars ($10,000).
Comply with the regulations adopted by DPH
implementing this chapter.
Requires an organization employing home care aides to do
the following:
Ensure that each of its home care aides meets the
requirements established by
this legislation.
Investigate complaints made by a client, or a
client's family member or
guardian, against home care aides.
Conduct an annual assessment of the performance and
effectiveness of each
home care aide.
Every 62 days, supervise each home care aide
providing home care
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services in the residence of a client.
Require a home care aide, while providing home care
services, to wear a badge
that includes the aide's name, a photograph of
the aide, and other information as
specified.
Require home care aides to demonstrate that they
are free of active tuberculosis.
Requires home care aides to annually complete not
less than eight paid hours of
paid department-approved training on job-related
topics.
Prohibit home care aides from accepting money or
property from a client
without written permission from the home care
organization.
Client rights
Before arranging for the provision of home care services to
a client, requires a home care organization to:
Distribute to the client its advance directive
policy, along with a
written summary of applicable state law;
Advise the client of its policy regarding the
disclosure of client
records;
Inform the client of the types and hours of
available home care
services; and
Inform the client, orally and in writing, of the
home care services that
are or are not covered by Medi-Cal or Medicare, and
the extent to
which payment may be expected from the client,
Medicare or Medi-Cal, and from any other source and
to have a written agreement with the client that
includes the cost of and the hours during which home
care services will be provided to the client.
Requires the client be informed of the availability of
services provided by the Office of State Long-Term Care
Ombudsman.
Establishes that home care clients are entitled to the
following rights and requires a home care organization to
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provide a written notice citing these right:
The right to have the client's property treated
with respect;
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;
The right to be informed of and to participate in
the planning of the client's
home care services; and
The right to confidentiality of the client's
personal information.
Home care aides
Requires DPH to require any person hired as a long-term
care worker for the elderly or persons with disabilities to
be certified as a home care aide within 180 days from the
date of being hired.
Requires a prospective home care aide to complete a minimum
of five hours of entry-level training as follows:
Two hours of orientation training regarding his or
her role as caregiver and the
applicable terms of employment.
Three hours of safety training, including basic
safety precautions, emergency
procedures and infection control.
Other training related to core competencies and
population-specific
competencies.
Provides that only training curriculum approved by DPH may
be used which must meet the following conditions:
The training curriculum has been developed with
input from consumer and
worker representatives.
The training curriculum requires comprehensive
instruction by qualified
instructors on the competencies and training
topics prescribed.
Requires DPH to issue a home care aide certificate to each
individual who meets these training requirements.
Requires DPH to maintain on its web site a list of, and
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contact information for, each holder of a home care aide
certificate in good standing.
Requires DPH to set a fee for certification that shall be
paid for by the employer.
Allows for an individual who wishes to obtain a
certificate to provide home care aide services to pay for
his or her own certification.
Prohibits a home care organization from hiring an
individual as a home care aide unless
that individual complies with specified requirements.
A home care organization that hires an individual shall
ensure that the individual, within the first 18 days of
employment, satisfactorily completes the home care
certification training.
Requires a home care organization to conduct and pay for 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 as a condition of the license
or registration.
Prohibits a home care aide hired on or after January 1,
2012, from providing home care services until he or she
passes the background clearance.
Prohibits the employment of an individual whose background
check discloses specified conviction or incarceration for a
conviction within 10 years.
Enforcement
Requires DPH to investigate complaints filed against home
care organizations.
Requires DPH to verify through annual random, unannounced
inspections that a home care organization meets the
requirements of this chapter and the regulations adopted.
Establishes that an individual or entity will be liable for
a civil penalty not to exceed of $900 per day for each
calendar day of violations.
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Requires DPH to send a written notice of noncompliance to
the individual or entity and to the Attorney General or
appropriate district attorney for further action.
FISCAL IMPACT
This bill has not been analyzed by a fiscal committee.
However, SB 411 is very similar to AB 853 (Jones) of 2007
which the Assembly Appropriations committee analyzed and
identified the following fiscal effects:
Assuming that each agency, on average, employs 10
home care workers, DSS
would be required to license and investigate
complaints for 7,100 new entities. This would
constitute almost a 10 percent increase in the number
of facilities licensed by DSS. Based on that
increase, the on-going cost could be approximately
$12 million, or 10 percent of the current Community
Care Licensing Division (CCLD) budget.
One-time costs of at least $1 million for
regulations, forms, and information
technology related with creating the new
licensing system.
This bill requires DSS to assess fees for providers
to cover the cost of the
licensing activity. Based on the cost assumptions
above, agencies would pay approximately $1,700 per
year in licensing and renewal fees.
BACKGROUND
California's senior population is rapidly increasing. By
2030 it is estimated that the number of residents age 85
and older will be over 1.3 million people. The best place
to care for seniors and persons with disabilities is in the
least restrictive environment. Private home care agencies
are among the options to help assist individuals stay in
their home. According to the author, private agencies that
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place care providers in the homes of our most vulnerable
residents do so without any regulatory oversight from the
state and without any requirement that they meet minimum
standards of employee screening and training. With an
increasing number of caregivers entering peoples' homes
essentially unchecked, the number of incidents of abuse and
neglect by home care aides being reported is alarming the
author argues.
The author believes SB 411 is necessary to protect our most
vulnerable residents. SB 411 will require private home
care agencies to annually assess home care aide performance
and effectiveness, supervise their employees once every 62
days, provide consumers access to a supervisor at all times
services are being provided, document a backup staffing
plan in the event that a particular home care aide is
unavailable, and require a background check of all home
care aides as well as 8 hours of annual training. According
to prosecutors, for every reported incident of abuse or
neglect in the home, four go unreported.
Twenty-eight other states have moved forward with licensing
private home care services, including Florida, Illinois,
New York, Oregon, Pennsylvania, Washington, and Texas.
In-home supportive services (IHSS)
IHSS serves aged, blind, or disabled persons who are unable
to perform activities of daily living and cannot remain
safely in their own homes without help. Through IHSS,
qualified recipients may receive assistance with daily
tasks, such as bathing, dressing, cooking, cleaning, and
feeding. To be eligible for IHSS services, a person must
receive SSI or meet income and resource guidelines. In
addition, the individual must be either 65 years or older,
blind, permanently disabled, or be a disabled child
requiring extraordinary care. IHSS is a county
administered program under the Department of Social
Services.
Related bills
AB 899 (Yamada) is very similar to SB 411. AB 899 also
creates the "Home Care Services Act of 2011 but requires
the Department of Social Services to license and regulate
home care organizations. AB 899 does not require the
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certification of employees as required in SB 411. AB 899 is
sponsored by the California Association for Health Services
at Home. AB 899 is pending before the Assembly Human
Services Committee.
Prior legislation
AB 853 (Jones) of 2007 is identical to AB 899 (Yamada). AB
853 was held in the Assembly Appropriations Committee.
Arguments in support
United Domestic Workers of America write that SB 411 stands
to uphold basic consumer protections and will ensure that
private home care agencies have the proper state oversight
to ensure our most vulnerable population is getting the
care they need and deserve. Supporters state they have
heard many complaints over the years against agencies
including inadequate care, financial abuse, and even
physical abuse. Supporters contend that SB 411 will
protect seniors and disabled individuals and help ensure
they receive long-term care services in the least
restrictive environment.
Arguments in opposition
The California Association for Health Services at Home
(CAHSAH) is opposed to SB 411 unless amended. CAHSA is
opposed to the requirement in SB 411 to require all
long-term care workers in California to be certified by the
state. CAHSAH argues this new mandate will create a
bottleneck in the ability to meet the needs of the state's
growing senior population, thus restricting access to care.
CAHSAH also opposes placing the licensure of home care
organizations under DPH. CAHSAH argues this is an
inappropriate placement since home care aides are
nonmedical.
The Network of Domestic Referral Agencies (NODRA) opposes
the approach of SB 411 and is concerned the bill would have
a negative impact on those who chose to use a referral
agency model. NODRA supports protecting clients by setting
standards and criteria but argues for using the same
structure currently used for Certified Nursing Assistants
(CAN) and Home Health Aid (HHA) licensing.
COMMENTS
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1) Double referral. This bill has been double-referred to
the Senate Committee on Public Safety
2) Regulatory body. SB 411 requires home care agencies to
be licensed and regulated by the Department of Public
Health (DPH). The bill further requires DPH to certify
home care aides. DPH's Licensing and Certification
Division (L&C) currently licenses health facilities in
California as well as oversees the certification of nurse
assistants, home health aides, and hemodialysis
technicians. Typically DPH licenses and certifies medical
care type professions and facilities. Home care agencies
and home care aides do not perform medical duties.
The committee may wish to require the Department of Social
Services (DSS) to perform the licensing and regulatory
activities instead of DPH. DSS currently administers the
IHSS program, which provides services that are similar to
those provided by home care agencies, to low-income aged,
blind and disabled consumers.
3) Certification of employees. SB 411 requires a home care
aide to be certified by DPH within 180 days from the date
of being hired, beginning on January 1, 2012. The bill is
silent on what will occur if DPH is not able to certify a
home care aide within this timeframe, but does provide that
no home care aide can perform their duties until certified.
Staff recommends adding language to allow a home care
agency to certify an employee, using the certification
requirements prescribed in SB 411, until DPH is able to
complete the certification.
This will allow workers to continue to provide services
until DPH can meet the established timeline and also meet
the goal of providing protections to consumers by requiring
employees be trained.
4) Posting of contact information. One Page 12, Lines
30-32, SB 411 requires DPH to maintain contact information
for each holder of a home care aide certification in good
standing. This language appears to be vague and could
infringe on privacy rights of the individual. Staff
recommends clarifying this language to reflect current
practices for other health professionals such as for
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certified nurse assistants (Health & Safety 1337.8). Staff
recommends the following amendment:
The state department shall maintain a registry that
includes the certification status of all home care aides,
including the status of any proposed or completed
disciplinary actions.
POSITIONS
Support: SEIU (sponsor)
Alzheimer's Association
American Federation of State, County and
Municipal Employees
California Alliance for Retired Americans
California Senior Legislature
Congress of California Seniors
Gray Panthers California
Older Women's League of California
Sacramento Capitol Chapter of the Older Women's
League
United Domestic Workers of America/AFSCME
Oppose: California Association for Health Services at
Home
Network of Domestic Referral Agencies
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