BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 411|
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UNFINISHED BUSINESS
Bill No: SB 411
Author: Price (D), et al.
Amended: 8/13/12
Vote: 21
SENATE HEALTH COMMITTEE : 5-2, 4/13/11
AYES: Hernandez, Alquist, De Le�n, DeSaulnier, Rubio
NOES: Strickland, Anderson
NO VOTE RECORDED: Blakeslee, Wolk
SENATE APPROPRIATIONS COMMITTEE : 6-2, 5/26/11
AYES: Kehoe, Alquist, Lieu, Pavley, Price, Steinberg
NOES: Walters, Runner
NO VOTE RECORDED: Emmerson
SENATE FLOOR : 25-13, 6/2/11
AYES: Alquist, Calderon, Corbett, Correa, De Le�n,
DeSaulnier, Evans, Hancock, Hernandez, Kehoe, Leno, Lieu,
Liu, Lowenthal, Negrete McLeod, Padilla, Pavley, Price,
Rubio, Simitian, Steinberg, Vargas, Wolk, Wright, Yee
NOES: Anderson, Berryhill, Blakeslee, Cannella, Dutton,
Emmerson, Fuller, Gaines, Harman, Huff, La Malfa,
Strickland, Walters
NO VOTE RECORDED: Runner, Wyland
ASSEMBLY FLOOR : 48-25, 8/16/12 - See last page for vote
SUBJECT : Home Care Services Act of 2012
SOURCE : Service Employees International Union
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DIGEST : This bill establishes the Home Care Services Act
of 2012 (HCSA) requiring the Department of Social Services
(DSS) to license private agencies that provide non-medical
home care services, and to certify home care aides.
Assembly Amendments provide that the bill would take effect
July 1, 2013, require certain employment agencies to
maintain liability insurance, as specified, ensure that any
person it refers to provide home care services has been
certified prior to the referral, and address concerns
regarding fiscal issues raised by stakeholders.
ANALYSIS :
Existing law:
1. Provides for the licensing and regulation of healthcare
facilities and home health agencies by the Department of
Public Health (DPH) and provides for the licensing and
regulation of nonmedical residential and nonresidential
community care facilities by DSS.
2. Establishes the In-Home Supportive Services (IHSS)
program, administered at the state level by DSS, to
provide personal services and home care for eligible
poor aged, blind and disabled individuals.
Specifics of SB 411
General Provisions
1. Establishes the Home Care Services Act of 2012, and
requires DSS to administer and enforce the law.
2. 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 either a family member,
as defined, or 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
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Lanterman Developmental Disabilities Services Act
(Lanterman Act) or the California Early Intervention
Services Act (Early Intervention Act) when funding is
provided through DDS and more than 50% of the recipients
of the organization are people with developmental
disabilities.
3. 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 residential care facility for
the elderly; a vendor or contractor of a regional center
or DDS providing services to people with developmental
disabilities, as described in #2 above; an employment
agency as defined in Civil Code Section 1812.5095 that
is not the employer of home care aides or other workers
who provide assistance with activities of daily living;
or, a county providing in-home supportive services
pursuant to the IHSS program.
4. 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.
5. Defines "Employment Agency" as an agency that procures,
offers, refers, provides, or attempts to provide, but is
not the employer of, a home care aide who provides home
care services to clients and consumers in accordance
with Civil Code Section 1812.5095, as long as the agency
does not employ a home care aide or a person who assists
with activities of daily living to the consumer.
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6. Defines a "Priority One Complaint" as a complaint of
sexual abuse that involves penetration, a complaint of
physical abuse that results in bodily injury, or one
that results in the death of a client due to suspicious
circumstances.
7. Defines a "Priority Two Complaint" as a complaint of
sexual abuse that involves sexual behavior that does not
involve penetration, physical abuse that results in
minor injury, and a complaint of felony offenses.
Licensure
8. Prohibits, on or after July 1, 2013, non-exempted
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.
9. Allows DSS to adopt rules and regulations to implement
the act; to investigate Priority One and Two Complaints
against home care aides not employed by a HCO; establish
procedures for the receipt, investigation and resolution
of complaints; maintain a registry on its Internet Web
site of all certified home care aides, containing
limited information that includes their employers, their
certification status, and the status of disciplinary
actions against them; and, maintain a registry on its
Internet Web site of all licensed HCOs containing
specified information.
10.Requires DSS to issue an HCO license to an entity
meeting requirements, including, proof of liability
insurance; proof of workers' compensation coverage; and,
background clearances of the organization's owners.
11.Requires Department of Justice (DOJ) background
clearances of the owners of HCOs, as described, and
requires DSS to request subsequent arrest notification
service from DOJ. Requires DOJ to charge a fee to cover
costs related to this bill.
12.Authorizes DSS to deny a license if the background
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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.
13.Requires DSS, in determining whether or not to deny a
license based on a prior conviction, to consider
specified factors related to the nature and seriousness
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 commission of the offense demonstrating
the unlikelihood of repetition.
14.Requires DSS 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.
15.Prohibits a public or private organization, except a
county providing IHSS services or other entity exempted
from licensing under the HCSA, 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.
16.Requires DSS to issue a notice of violation if it
determines that a home care aide is in violation of the
HCSA and its related regulations, as specified.
17.Allows DSS to investigate complaints against an
employment agency if it fails to comply with the HCSA
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and levy civil penalties of up to $900 per day per
violation.
Complaints, Inspections, and Investigations
18.Allows DSS to investigate complaints filed against HCOs.
19.Requires DSS to conduct random, unannounced inspections
once every five years to ensure compliance with the
HCSA.
HCO Operating Requirements
20.Requires HCOs to comply with regulations promulgated by
DSS and adhere to other specified operating
requirements.
21.Requires HCOs, with respect to home care aides employed
by the organization, to consult the DSS 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.
22.Requires HCOs to investigate complaints against a home
care aide made by a client or the client's family, and
if the HCO determines that the home care aide violated
the HCSA, it shall immediately notify DSS to take the
appropriate action to address the violation.
23.Requires HCOs to ensure that each of its home care aides
employed prior to January 1, 2014, are certified
pursuant to the HCSA by July 1, 2014.
24.Requires HCOs to immediately notify DSS when they no
longer employ a home health care aide to allow DSS to
update its Internet Web site.
25.Requires home care aides to demonstrate that they are
free of active tuberculosis, as specified, and to
annually complete not less than eight paid DSS-approved
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job-related training, and prohibits home care aides from
accepting money or property from a client without
written permission of the HCO.
Employment Agency Insurance
26.Requires employment agencies that are exempt from
licensure as an HCO to maintain general and professional
liability insurance of $1,000,000 per occurrence and
$3,000,000 in the aggregate.
Client Rights
27.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; and,
B. Prior to arranging for the provision of home care
services to a client:
(1) Distributing to the client its advance
directive policy and a summary of applicable state
law;
(2) Advising the client of its policy on
disclosure of client records;
(3) Informing the client of the types and hours
of available home care services;
(4) Advising and updating the client, orally and
in writing, concerning applicable payment sources,
including Medi-Cal or Medicare; and
(5) 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.
28.Delineates home care client rights, including the rights
to have the client's property treated with respect,
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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
29.Requires, beginning January 1, 2013, that DSS require
any person hired as a home care aide to be certified
within 90 days of the date of hire and that any person
referred by an employment agency who provides assistance
with activities of daily living be certified prior to
any referral.
30.Establishes training requirements for home care aide
certification, including requiring home care aides to
complete five paid hours of DSS approved training on
job-related topics, training curricula that are
developed with input from consumer and worker
representatives, require instruction by qualified
instructors, and are approved by DSS.
31.Requires that DSS set a fee for a two-year certification
to be paid for by the home care aide.
32.Requires applicants for certification to submit to an
examination to determine if he or she is free of active
tuberculosis.
33.Prohibits, beginning January 1, 2014, 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 individual to provide
proof of certification.
34.Authorizes DSS to issue a temporary home care aide
certificate if it determines that required training is
not available in an applicant's county, and provides
that required entry-level and annual training may be
completed through an on-line training program.
35.Requires an applicant for employment as a home care aide
to consent to a background clearance, and prohibits a
home care aide employed on or after January 1, 2014,
from providing home care services until he or she passes
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the required background clearance.
36.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.
37.Requires that DSS deny certification to an individual
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.
38.Requires DSS 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.
39.Provides that an applicant for certification convicted
of a disqualifying offense my seek from DSS a general
exception to the exclusion, and that DSS shall consider
the same factors applicable to the determination of
whether to deny a license 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.
40.Requires an employment agency to ensure that any person
it refers to provide home care services or assistance
with activities of daily living has been certified prior
to referral.
Revenues
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41.Requires DSS to assess licensure and certification fees
in amounts sufficient to cover the costs of
administering the HCSA.
42.Prohibits the use of General Fund (GF) moneys for
purposes of funding activities under the HCSA unless
specifically transferred or appropriated by the
Legislature.
43.Establishes the Home Care Organization and Home Care
Aide Fund within the State Treasury and requires that
licensure and certification funds, as well as fines and
penalties, be deposited into the Fund, which funds
shall, upon appropriation by the Legislature, be made
available to DSS to administer the HCSA.
44.Establishes a certification fee of $20 for the first
year and requirements for publishing fees for subsequent
years.
45.Requires DSS to report on all costs for home care
licensure and home care aide certification activities,
as specified, and to submit the report to the
Legislature and make it available to the public on its
Internet Web site.
Enforcement and Penalties
46.Establishes requirements for notifying HCOs and
employment agencies of violations of the HCSA or rules
promulgated under the act, and authorizes DSS to impose
a fine of up to $900 per violation per day based on
consideration of specified factors.
47.Requires DSS, 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.
48.Requires DSS to issue a notice of violation to a home
care aide found to be in violation of the HCSA, which
shall specify the nature of the violation, any action
DSS may take as a result of the violation, and include
information about their right to a hearing.
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49.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 DSS
for purposes of enforcing the HCSA.
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's office, private
agencies that 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's office believes this bill is necessary to
protect our most vulnerable residents. This bill 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 eight
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.
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FISCAL EFFECT : Appropriation: Yes Fiscal Com.: Yes
Local: No
According to the Assembly Appropriations Committee:
1. One-time costs to DSS for initial program development,
including adoption of regulations, policies, procedures,
and forms; approval of training curricula; development
of publicly accessible web registries; and, other
one-time expenses in the range of $1 million. At least
$500,000 of this amount would be needed for start-up
workload prior to the collection of fees, and would be
funded through a General Fund (GF) loan.
2. Costs to DOJ of approximately $350,000 for the first
year, and $200,000 ongoing (special fund), associated
with processing an increased number of background
checks.
3. Ongoing costs in the range of $8 million (special fund)
to DSS for licensure of home care organizations,
certification of home care aides, and maintenance of
online registries.
4. By requiring accreditation and licensure of home care
organizations and certification of home care aides, home
care organizations will face increases in the cost of
doing business. These costs will have a larger impact
on smaller home care organizations, since licensure and
accreditation fees are fixed costs regardless of size.
To the extent that these costs are passed on to clients,
this bill will likely cause some individuals to seek
care in the underground market. To the extent more
caregivers choose to provide care through the
underground market and fail to report income for tax
purposes, there could be some indirect negative impact
on payroll tax revenues compared to the status quo.
Because regulatory costs are small compared to total
industry revenues, any impact is expected to be minor.
Conversely, it is also possible that by increasing state
oversight and professional legitimacy of the industry
through licensure, this bill will increase the number of
individuals who would choose to seek care through
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licensed home care organizations instead of the
underground market. This could have an indirect
positive impact on payroll tax revenues compared to the
status quo. The likelihood and magnitude of these
potential economic impacts is unknown.
5. Individuals seeking certification who are not employed
by an organization will face costs estimated of $50 to
$200 for training, background checks, tuberculosis
screening, and certification fees. Aides employed by an
organization will bear the cost of the tuberculosis test
and certification fee, which could exceed $50 total.
SUPPORT : (Verified 5/31/11) (per Senate Health Committee
analysis - unable to reverify at time of writing)
Service Employees International Union (source)
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
OPPOSITION : (Verified 5/31/11) ) (per Senate Health
Committee analysis - unable to reverify at time of writing)
California Association for Health Services at Home
Network of Domestic Referral Agencies
ARGUMENTS IN SUPPORT : United Domestic Workers of America
writes that this bill 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 this bill will protect seniors and disabled
individuals and help ensure they receive long-term care
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services in the least restrictive environment.
ARGUMENTS IN OPPOSITION : The California Association for
Health Services at Home (CAHSAH) is opposed to this bill,
unless amended. CAHSAH is opposed to the bill's
requirement requiring 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 this bill 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
and Home Health Aid licensing.
ASSEMBLY FLOOR : 48-25, 08/16/12
AYES: Alejo, Allen, Ammiano, Atkins, Beall, Block,
Blumenfield, Bonilla, Bradford, Brownley, Buchanan,
Butler, Charles Calderon, Campos, Carter, Chesbro,
Dickinson, Eng, Feuer, Fong, Fuentes, Furutani, Galgiani,
Gatto, Gordon, Hall, Hayashi, Roger Hern�ndez, Hill,
Huber, Hueso, Huffman, Bonnie Lowenthal, Ma, Mendoza,
Mitchell, Monning, Pan, Perea, V. Manuel P�rez,
Portantino, Skinner, Solorio, Swanson, Torres,
Wieckowski, Williams, John A. P�rez
NOES: Achadjian, Bill Berryhill, Conway, Donnelly, Beth
Gaines, Garrick, Gorell, Grove, Hagman, Halderman,
Harkey, Jeffries, Jones, Knight, Logue, Mansoor, Miller,
Morrell, Nielsen, Olsen, Silva, Smyth, Valadao, Wagner,
Yamada
NO VOTE RECORDED: Cedillo, Cook, Davis, Fletcher, Lara,
Nestande, Norby
CTW:m 8/17/12 Senate Floor Analyses
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SUPPORT/OPPOSITION: SEE ABOVE
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