BILL ANALYSIS �
SB 411
Page 1
Date of Hearing: June 28, 2011
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall Jr., Chair
SB 411 (Price) - As Amended: June 21, 2011
SENATE VOTE : 25-13
SUBJECT : Home Care Services Act of 2011
SUMMARY : Establishes the Home Care Services Act of 2011 (HCSA)
requiring the Department of Public Health (DPH) to license
private agencies that provide non-medical home care services,
and to certify home care aides. Specifically, as proposed to be
amended, this bill :
1)Makes legislative findings and declarations, including the
following:
a) Seniors, individuals with disabilities, and the frail
elderly 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 of
employment;
c) Most people hiring home care organizations (HCOs)
incorrectly believe that the home care aide has been
thoroughly screened and trained; however the only
requirement needed to provide nonmedical home care services
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;
e) Discharge planners maintaining referral lists of home
care aids and home care organizations lack information
about the individuals or organizations, placing individuals
and referring organizations at risk; and,
f) There is no centralized list of home care organizations
in California for family members, seniors, or disabled
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individuals to consult when in need of home care services
for their loved ones or themselves.
General Provisions
2)Establishes the Home Care Services Act of 2011, and requires
DPH to administer and enforce the law.
3)Defines "home care aide" as an individual who provides home
care services to a client in the client's residence, and
includes a person who qualifies as a personal attendant as
defined by the Industrial Welfare Commission, but does not
include a person employed by a vendor or contractor of a
regional center or the Department of Developmental Services
(DDS) providing services to people with developmental
disabilities pursuant to the Lanterman Developmental
Disabilities Services Act (Lanterman Act) or the California
Early Intervention Services Act (Early Intervention Act) when
funding is provided through DDS.
4)Defines "home care organization" (HCO) as 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, but does not include a home
health agency; a licensed hospice; a health facility, a
licensed home medical device retail facility; a vendor or
contractor of a regional center or DDS providing services to
people with developmental disabilities pursuant to the
Lanterman Act or Early Intervention Act when funding is
provided through DDS; or a county providing in-home supportive
services pursuant to the In-Home Supportive Services (IHSS)
program.
5)Defines "home care services" as services provided by a home
care aid to a client who, because of advanced age or physical
or mental infirmity, cannot perform these services for himself
or herself, but does not include services provided by a
licensed home health agency; a licensed hospice; a licensed
health facility; a licensed residential care facility for the
elderly; the adherents of and in connection with the practice
of the religious tenets of any well recognized church or
denomination, so long as they do not otherwise engage in the
practice of nursing; or services provided pursuant to the IHSS
program.
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Licensure
6)Prohibits entities from providing home care services by a home
care aide without first obtaining a license pursuant to the
HCSA, and establishes civil penalties for violations of this
requirement.
7)Requires DPH to adopt rules and regulations to implement the
act, establishes procedures for the receipt, investigation and
resolution of complaints, and maintain a registry on its
Internet Web site of all certified home care aides and HCOs,
and the status of disciplinary actions against home care
aides.
8)Requires DPH to issue an HCO license to an entity meeting
requirements, including accreditation by a nationally
recognized accrediting organization, proof of liability
insurance; proof of workers' compensation coverage; and
background clearances of the organization's owners.
9)Authorizes DPH to require a survey of an accredited HCO to
investigate complaints;
10)Requires Department of Justice (DOJ) background clearances of
the owners of HCOs, as described, and requires DPH to request
subsequent arrest notification service from DOJ. Requires DOJ
to charge a fee to cover costs related to this bill;
11)Authorizes DPH to deny a license if the background clearance
discloses a conviction for a felony or crime that is
substantially related to the qualifications, functions, or
duties of operating an HCO; but, provides that the license
shall not be denied if, pursuant to applicable Penal Code
provisions, the applicant has obtained a certificate of
rehabilitation or the information or accusation against the
applicant has been dismissed.
12)Requires DPH, in determining whether or not to deny a license
based on a prior conviction, to consider specified factors
related to the nature and serious of the crime, its
relationship to the person's employment duties and
responsibilities, the person's post-conviction activities, the
time elapsed, the individual's compliance with conditions of
parole, probation, restitution or other sanctions, other
evidence of rehabilitation, employment history and employer
recommendations, and the circumstances surrounding the
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commission of the offense demonstrating the unlikelihood of
repetition.
13)Requires DPH to provide notice, as specified, to the
applicant by personal service or registered mail if a license
application is denied based on a prior criminal conviction,
and specifies procedures for requesting and conducting an
administrative hearing.
14)Prohibits a public or private organization, except a county
providing IHSS services, from representing itself to be an
HCO, implying that it has a license to provide home care
services, referring to employee bonding in relation to such
services, or using the terms "health care organization," "home
care," "in-home care," or any combination of such terms in its
name, unless it is licensed pursuant to the HCSA.
15)Provides that if one accrediting agency denies, revokes, or
suspends accreditation of an HCO, it would apply to all other
accrediting agencies. A home care agency would be permitted
to reapply for accreditation. Requires an accreditation
agency that denies, revokes, or suspends accreditation to
report specified information to DPH.
Complaints, Inspections, and Investigations
16)Requires DPH to investigate complaints filed against HCOs and
conduct annual random, unannounced inspections to ensure
compliance with the HCSA.
HCO Operating Requirements
17)Requires HCOs to comply with regulations promulgated by DPH
and adhere to other specified operating requirements.
18)Requires HCOs, with respect to home care aides employed by
the organization, to consult the DPH registry before hiring
the individual, ensure that he or she meets the requirements
for home care aides specified in the act, evaluate home care
aides, as provided, and ensure that, when providing services,
home care aides have access to a supervisor at all times and
wear an identification badge.
19)Requires home care aides to demonstrate that they are free of
active tuberculosis, as specified, and to annually complete
not less than 8 paid DPH-approved job-related training, and
prohibits home care aides from accepting money or property
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from a client without written permission of the HCO.
Client Rights
20)Establishes requirements on HCOs to protect clients' rights,
including the following:
a) Advising clients of changes in the client's plan for
home care services;
b) Prior to arranging for the provision of home care
services to a client:
i) Distributing to the client its advance directive
policy and a summary of applicable state law;
ii) Advising the client of its policy on disclosure of
client records;
iii) Informing the client of the types and hours of
available home care services;
iv) Advising and updating the client, orally and in
writing, concerning applicable payment sources, including
Medi-Cal or Medicare;
v) Having a written agreement with the client that
includes the cost of and hours during which home care
services will be provided, and reference to personal
attendant requirements, if applicable.
21)Delineates home care client rights, including the rights to
have the client's property treated with respect, voice
grievances free of reprisal, be informed and participate in
the planning of home care services, and confidentiality of the
client's personal information.
Home Care Aides
22)Beginning January 1, 2013, requires that DPH require any
person hired as a home care aide to be certified within 30
days of the date of hire.
23)Establishes training requirements for home care aide
certification, including training curricula that are developed
with input from consumer and worker representatives, require
instruction by qualified instructors, and are approved by DPH.
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24)Requires that DPH set a fee for certification to be paid for
by the employer, but authorizes an individual the option of
obtaining and paying for his or her own certification
independent of an employer-employee relationship.
25)Beginning January 1, 2012, prohibits an HCO from hiring an
individual as a home care aide unless the individual completes
an interview and meets specified job requirements, and
requires the HCO to ensure the individual completes required
certification training within 30 days.
26)Requires an applicant for employment as a home care aide to
consent to a background clearance, and prohibits a home care
aide hired on or after January 1, 2012 from providing home
care services until he or she passes the required background
clearance.
27)Requires a background clearance through DOJ, as described, on
individuals hired as home care aides, unless the individual
holds a valid, unexpired license or registration in a
health-related field that requires background checks; requires
DSS to request subsequent arrest notification service from
DOJ; and requires DOJ to charge a fee to cover the actual
costs related to these activities.
28)Prohibits an HCO from hiring or retaining an employee
convicted or incarcerated for conviction, within 10 years, for
child abuse, senior or dependent adult abuse, a violent or
serious felony as defined in the Penal Code, or a felony
offense for which the person is required to register as a sex
offender, unless the individual has obtained a certificate of
rehabilitation, or the information or accusation has been
dismissed, pursuant to specified provisions of the Penal Code.
29)Requires DPH to provide notice, as specified, to the
applicant for certification by personal service or registered
mail if a license application is denied based on a prior
criminal conviction, and specifies procedures for requesting
and conducting an administrative hearing.
30)Provides that an applicant for certification convicted of a
disqualifying offense my seek from DPH a general exception to
the exclusion, and that DPH shall consider the same factors
applicable to the determination of whether to deny a license
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to a prospective licensee based on a prior conviction.
Specifies notice requirements and administrative hearing
procedures in the event a request for a general exception is
denied.
Revenues
31)Requires DPH to assess licensure, renewal, background check
and other fees on each HCO in amounts sufficient to cover the
costs of administering the HCSA, including the cost of
certifying home care aides, and requires that all fees be
deposited in the existing DPH Licensing and Certification
Program Fund.
32)Establishes an initial licensure fee equivalent to the fee
for home health agencies for the 2011-12 fiscal year.
Enforcement and Penalties
33)Establishes requirements for notifying HCOs of violations of
the HCSA or rules promulgated under the act, and authorizes
DPH to impose a fine of up to $900 per violation per day based
on consideration of specified factors.
34)Requires DPH, in consultation with a working group of
affected stakeholders, to adopt regulations establishing
procedures for notices, correction plans, appeals, and
hearings related to enforcement of HCSA requirements.
35)Requires collected penalties to be deposited into the Home
Care Organization and Home Care Aide Penalties Subaccount,
which is created within the existing State Health Facilities
Citation Penalties Account, and provides that, upon
appropriation by the Legislature, funds in the subaccount
shall be made available to DPH for purposes of enforcing the
HCSA.
36)Authorizes DPH to implement and administer the HCSA through
all-facility letters or similar instructions until regulations
are adopted, and requires DPH to adopt emergency regulations
no later than January 1, 2013, which may be readopted once,
pending adoption of final regulations within 180 days.
EXISTING LAW
1)Provides for the licensing and regulation of healthcare
facilities and home health agencies by DPH and provides for
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the licensing and regulation of nonmedical residential and
nonresidential community care facilities by the Department of
Social Services (DSS).
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 : 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. 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 occurring in a largely unregulated arena, where
HCOs and individual contractors compete with each other,
advertising their services through the Internet or in
newspapers. The Senate Office of Oversight and Outcomes
released a report on April 21, 2011, entitled Caregiver
Roulette: California Fails to Screen those who Care for the
Elderly at Home. According to the report, California is one of
the few states that does not regulate private in-home care
organizations. (Id. at 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." The report also 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).
In addressing the need for this bill, the author states:
Some of our most vulnerable citizens are being cared
for by people whose background and training they know
nothing about. Many of the elderly and sick have been
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abused and even killed by people sent into their homes
to care for them. This bill will provide oversight
and regulations of the more than 100,000 home care
aides working in the homes of our disabled and senior
citizens by requiring all private, unlicensed home
care agencies in California to be licensed by the
Department of Public Health. These home care agencies
need to know who they are sending into the homes of
the elderly and disabled by performing screening,
background checks and fingerprinting. They also will
be required to provide home care aides with annual
training and regular on-site performance reviews.
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 the Department of Social
Services (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.
The services are more akin to those provided through the
IHSS program for low income individuals. 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" (HCOs), which are
responsible for following rules governing their operations, and
which are responsible for assuring that home care aides meet
defined standards. Among other things, this bill requires
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background checks for HCO owners. This bill also establishes a
certification requirement for all home care aides. Home care
aides would be subjected to a criminal background clearance, be
screened for tuberculosis, have access to a home care consultant
during their hours of service, and be required to complete
training on such subjects as basic safety precautions, emergency
procedures, infection, and other core and population-specific
competencies.
State implementation and enforcement responsibility is assigned
to DPH, which is given authority to adopt rules and regulations
to implement the act, establish procedures to investigate and
resolve complaints, and maintain a registry on its Internet Web
site with pertinent information on all certified home care
aides.
Arguments in support : The author notes that, under existing
law, all public community care agencies that provide skilled
nursing services to a person within that person's residence are
required to be licensed. "However, private entities that
provide non-medical, in-home personal care services are only
required to possess a business license." This bill's sponsor,
SEIU California, notes that "�t]here is no California system of
long-term care-in either public programs or in the private
market place. In the absence of a system vulnerable consumers
get lost and fall through the cracks and important consumer
protections-like the regulation of this important service are
neglected, forgotten or ignored." This bill, SEIU says, "allows
California to take small steps to begin to build a cohesive
system of care and oversight and follows on the heels of 28
other states who have led the way in licensing this important
industry to provide increased consumer protection for seniors
and persons with disabilities."
In support of this bill, Addus HealthCare, a provider of both
home health services and home care services in California and
nationally, notes that "�u]nfortunately, as is often the case,
the growth in need for in-home care services has meant the
proliferation of individuals establishing 'agencies' which do
not follow any prescribed quality policies or appropriately
screen the individuals they place in the home of unsuspecting
clients." This bill, Addus says, "will provide a means to
register and track any unscrupulous and predatory providers as
well as require home care agencies to annually assess home care
aide performance and effectiveness, provide consumers access to
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a supervisor at all times services are being provided, and
require a background check of all home care aides.? Most states
have already passed similar legislation and �this bill] will
assure that there is adequate regulation and monitoring of
agencies in California."
Arguments in opposition : The California Association for Health
Services at Home (CAHSAH) and a number of HCOs oppose this bill
unless it is amended to address their common concerns. These
organizations ask that this bill be amended to: eliminate the
certification requirement for home care aides (and, instead,
require that HCOs ensure skills competency), place oversight
with DSS (as opposed to DPH), and eliminate the accreditation
requirement for HCOs (and make it optional).
The certification requirement, it is argued, would create a
major bottleneck in the ability of HCOs to meet the needs of a
rapidly growing senior population. In response, the author and
sponsor of this bill argue that certification
requirements-including DOJ background checks, tuberculosis
clearance, and training-can be accomplished quickly. They note
that there are already entities around the state that offer
in-person or on-line training. This bill would not require that
home care aides be certified until January 2013, giving
sufficient time for current employees to meet certification
requirements. Opponents also argue that HCOs should not have to
pay the costs of initial certification of home care aides. They
note that this responsibility is not required in other contexts
and that, since certification is portable, they could be paying
the costs for individuals who leave their employment immediately
after becoming certified.
The issue of which department should license and regulate HCOs
and certify home care aides is not easily resolved. Those
providers opposing this bill argue that home care services are,
by definition, non-medical and are more akin to services
provided through the IHSS program, which is administered at the
state level by DSS. Therefore, they assert, DSS is the more
appropriate oversight entity. Proponents and the author of this
bill note, on the other hand, that DPH oversees home health
agencies, many of which also provide home care services as an
HCO. According to SEIU, approximately 50% of agencies that
provide home care services also provide home health services.
Housing HCO licensing within DPH, SEIU says, reduces redundancy
and the regulatory burden on the regulated industry.
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Integrating licensing within one department will avoid further
fragmentation and compartmentalization of the state's long-term
care system. SEIU points out that this is consistent with the
federal Centers for Medicare and Medicaid Services (CMS) policy
of transitioning health care delivery to a more integrated
model.
Requiring accreditation through a nationally recognized
accrediting body, opponents argue, is unduly expensive and
should be an option rather than a requirement. The author and
sponsor respond that accreditation reduces the costs to DPH of
licensing, which expenses would otherwise be passed on to HCOs
in the form of higher licensing fees and, ultimately, to
consumers. Moreover, many HCOs also provide home health
services, for which accreditation in addition to licensing is
required.
Referral agencies: The Network of Domestic Referral Agencies
(NODRA) opposes this bill unless it is amended to exempt from
the bill's licensing requirements agencies that refer but do not
employ home care workers to individuals in need of home care
services. While such agencies arrange for home care aides to
provide services, they do not employ them. Referral agencies
are governed by Section 687.2 of the Unemployment Insurance Code
and Section 1812.5095 of the Civil Code. NODRA does not suggest
that referral agencies should be exempted from a requirement
that the workers they refer must be certified pursuant to the
provisions of this bill. NODRA also opposes the provision of
this bill prohibiting non-licensed organizations from using
business names that include terms such as "home care" or
"in-home care," which, NODRA says, is common among referral
agencies. The author and sponsor agree in concept with NODRA's
position and have committed to continue working on specific
language for amendments to address these issues, which will be
taken in the Health Committee should this bill be passed by this
Committee .
As most recently amended, this bill exempts providers of
services to people with developmental disabilities under the
Lanterman Act or the Early Intervention Act. These include
services that would likely meet the definition of home care
services under this bill, including supported living services,
independent living services, and in-home respite services.
These services are provided pursuant to individual program plans
or individual family service plans that are developed,
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implemented and monitored by regional centers, which, in turn,
are overseen by DDS. Developmental disabilities services
providers and workers are already subject to oversight, quality
assurance, and training requirements that, for the most part,
far exceed the requirements of this bill.
Additional questions :
Is the time frame in this bill for home care aide certification
realistic? This bill requires that, beginning January 1, 2013,
any person hired as a home care aide be certified within 30 days
of hire. This bill also requires, for purposes of meeting
training requirements for certification, that curricula be
developed with input from consumer and worker representatives
and be approved by DPH. A period of one year from the
effective date of this bill may not be sufficient time to
develop training curricula, complete trainings, and conduct
background checks to certify sufficient numbers of home care
aides to meet the demand for home care services, thereby
creating the "bottleneck" that opponents predict. It is
recommended that this bill be amended to extend the deadline for
home care worker certification, at least as it applies to
current employees .
Do the savings to the State in licensing costs resulting from
the requirement for accreditation by a nationally recognized
accrediting organization justify the added costs to HCOs?
According to the author, accreditation simplifies the licensing
process and, thus, reduces the cost to DPH for licensing. This
bill establishes an initial licensure fee equivalent to the fee
for home health agencies for the 2011-12 fiscal year, which is
$4,129.63. The costs of accreditation, according to opponents
of this bill, are in the range of $7,500 to $10,000. Thus,
while accreditation may result in a saving of resources for DPH,
which might be passed on to HCOs in the form of lower fees,
accreditation would still likely result in a substantial net
cost to HCOs. These added costs would then likely be passed on
to HCO clients in the form of higher fees. The cost issue
should be examined more closely to determine the extent of
savings to DPH and whether accreditation will result in a net
savings or minimal costs to HCOs. A determination as to whether
to delete the accreditation requirement can then be made in the
Appropriations Committee.
Related bill
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AB 899 (Yamada 2011), also introduced this year, is very similar
to this bill. AB 899 also creates the "Home Care Services Act
of 2011 but requires DSS, rather than DPH, to license and
regulate home care organizations. AB 899 does not require the
certification of employees or accreditation of HCOs, as required
in this bill. AB 899, which is sponsored by CAHSAH, was held on
the Assembly Appropriations Committee Suspense File in May.
Prior Legislation
AB 853 (Jones 2007) was the predecessor to AB 899 and would
similarly have provided for the licensing and regulation of home
care organizations. AB 853 was held on the Assembly
Appropriations Committee Suspense File.
DOUBLE REFERRAL . This bill has been double-referred. Should
this bill pass out of this committee, it will be referred to the
Assembly Health Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Addus HealthCare
Alzheimer's Association
California Alliance for Retired Americans
California Senior Legislature
Coalition for Humane Immigrant Rights of Los Angeles
Congress of California Seniors
Older Women's League of California (OWL)
PowerPac
Sacramento Capitol Chapter of the Older Women's League (OWL)
Sacramento Gray Panthers
SEIU California (sponsor)
The California Long Term Care Ombudsman Association
United Domestic Providers of American/AFSCME
2 Individuals
Opposition
At Home Care Solutions (unless amended)
Accredited Nursing Care (unless amended)
Arcadia Home Care & Staffing (unless amended)
Around The Clock (unless amended)
California Association for Health Services at Home (CAHSAH)
(unless amended)
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Cambrian Homecare, Long Beach (unless amended)
Comfort Keepers (unless amended)
Help Unlimited (unless amended)
Hired Hands Homecare (unless amended)
Home & Health Care Management (unless amended)
Home Instead Senior Care (unless amended)
Kaweah Delta Home Care Services (unless amended)
Koved Care (unless amended)
Love 2 Live Care Services (unless amended)
Matched CareGivers (unless amended)
Nations Private Duty Association, Northern and Southern Calif.
Chapters
Network of Domestic Referral Agencies (NODRA) (unless amended)
Pioneer Home Health Care (unless amended)
Right at Home (unless amended)
SBC Senior Care Inc. (unless amended)
SENCARE Inc. (unless amended)
Senior Helpers, Rancho Mirage, CA (unless amended)
Senior Helpers, Wildomar, CA (unless amended)
Visiting Angels Senior Homecare (unless amended)
Vitality Inc. (unless amended)
Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089