BILL ANALYSIS �
AB 1863
Page 1
Date of Hearing: April 29, 2014
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Mark Stone, Chair
AB 1863 (Jones) - As Amended: April 22 2014
SUBJECT : Home Care Services Referral Agencies
SUMMARY : Amends the Home Care Services Consumer Protection Act
(Act) to include home care domestic referral agencies.
Specifically, this bill :
1)Defines a "home care referral agency" (HCRA) as an employment
agency that arranges for home care services to be provided by
a registered home care aide to a client, as specified.
2)Defines a "home care referral agency applicant" as an
individual who is at least 18 years of age or entity, as
specified, that is requesting to become a home care referral
agency and the Department of Social Services (DSS) has
received and is processing the application, as specified.
3)Defines an "independent home care aide" as an individual who
is at least 18 years of age or older who is listed on the home
care aide registry, is not employed by a home care
organization, but is providing home care services through a
direct agreement with the client.
4)Defines a "home care referral agency application" as the
official form to request an HCRA license, as specified.
5)Defines a "home care referral agency licensee" as an
individual who is at least 18 years of age or entity, as
specified, that has been licensed to operate a licensed home
care referral agency.
6)Requires Agencies to be licensed by the Department of Social
Services (DSS), as specified.
7)Requires licensees to undergo a criminal background check and
receive a background clearance prior to operation of an
agency.
8)Requires DSS to issue a civil penalty of $900 per day to an
entity that is operating as an Agency but is unlicensed, as
AB 1863
Page 2
specified.
9)Requires licensees to post their licenses in a conspicuous
place, comply with existing bond requirements for purposes of
liability, and to act as mandatory reporters of suspected
child abuse or neglect, as specified.
10)Requires the state's general fund to loan moneys to DSS for
implementation of the Act and for the establishment of the
Home Care Referral Agency Fund in the State Treasury for the
receipt of all application fees and civil penalties.
11)Authorizes funds deposited into the Home Care Referral Agency
Fund to be used to repay the general fund for implementation
of the Act, to conduct outreach activities to identify and
notice Agencies of their responsibility to be licensed, and to
fund operational costs incurred by DSS in administration of
the Act.
12)Permits DSS to establish rules and regulations relating to
the receipt of complaints, investigation of complaints and
unannounced inspections, as specified.
13)Permits DSS to issue a civil penalty of $900 per day for each
violation committed by an Agency, as specified.
14)Authorizes DSS to adopt regulations to implement the Act, as
specified.
15)Implements the Act on January 1, 2016 and requires Agencies
to comply with the Act no later than July 1, 2016.
EXISTING LAW
1)Establishes the Home Care Services Consumer Protection Act and
requires DSS to administer and enforce the law. (H&S Codes
1796.10 and 1796.11)
2)Defines an "affiliated home care aide" as an individual, 18
years of age or older, who is employed by a home care
organization to provide home care services to a client and is
listed on the home care aide registry. (H&S Code 1796.12(a))
3)Defines "home care organization" (HCO) as an individual, 18
years of age or older, firm, partnership, corporation, limited
AB 1863
Page 3
liability company, joint venture, association, or other entity
that arranges for home care services by an affiliated home
care aide to a client, and is licensed. (H&S Code 1796.12(j))
4)Defines "home care services" as nonmedical services and
assistance provided by a registered home care aide to a client
who, because of advanced age or physical or mental disability,
cannot perform these services, as specified. (H&S Code
1796.12(m))
5)Defines a "home care aide applicant" as an individual, 18
years of age or older, who is requesting to become a
registered home care aide and DSS has received and is
processing the individual's complete home care aide
application and fees. (H&S Code 1796.12(g))
6)Defines a "home care aide registry" as a
department-established and department-maintained Internet Web
site of registered home care aides and home care aide
applicants, which includes specified information. (H&S Code
1796.12(i))
7)Allows DSS to adopt rules and regulations to implement the
act; 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. (H&S Code
1796.63)
8)Requires home care aides to receive a criminal background
clearance prior to being placed on the home care registry, as
specified. (H&S Code 1796.24)
9)Allows DSS to investigate complaints against an employment
agency if it fails to comply with the HCSA and levy civil
penalties of up to $900 per day per violation. (H&S Code
1796.55)
10)Requires DSS to conduct random, unannounced inspections once
every five years to ensure compliance with the HCSA. (H&S
Code 1796.52)
AB 1863
Page 4
11)Establishes training requirements for home care aide
certification, including requiring home care aides to complete
five hours of training on job-related topics, as specified.
(H&S 1796.44)
12)Requires that DSS set a fee for a two-year certification to
be paid for by the home care aide. (H&S Code 1796.31)
13)Requires DSS to assess licensure and certification fees in
amounts sufficient to cover the costs of administering the
HCSA and prohibits the use of General Fund (GF) moneys for
purposes of funding activities under the HCSA unless
specifically transferred or appropriated by the Legislature.
(H&S Code 1796.47)
14)Establishes the Home Care Fund within the State Treasury and
requires that licensure and certification funds, as well as
fines and penalties, be deposited into the Fund, from which
funds shall, upon appropriation by the Legislature, be made
available to DSS to administer the HCSA. (H&S Code 1796.47)
FISCAL EFFECT : Unknown
COMMENTS :
Regulating the home care market : Last year the Legislature
passed and the state adopted AB 1217 (Lowenthal), Chapter 790,
Statutes of 2013 which sought to regulate the home care
industry, which has existed for many years, but has begun to
increase as the nation's elderly population expands and the
demand for in-home care increases to allow individuals to live
comfortably at home with the assistance of a day-to-day home
care provider. Home care providers provide basic daily
non-medical living assistance, such as cooking, cleaning,
dressing, feeding, and other regular daily needs. However,
unlike their In-Home Supportive Services (IHSS) and Home Health
Agency (HHA) counterparts, there are no requirements in current
law that require home care aides to have minimum levels of
training, undergo a criminal background check, or comply with
basic standards of service.
Due to the lack of a regulatory structure and related
enforcement, until AB 1217 there was no framework or definition
for what is considered a home care aide. Although the title
"home care aide" implies a level of expertise and integrity
AB 1863
Page 5
associated with a minimum level of care, any person may
represent him or herself as a home care aide. In some
instances, individuals may solicit their services through
notifications posted online on websites such as Craigslist or in
newspaper classified ads. This can place consumers who are in
need of day-to-day living assistance services in the home in
potentially vulnerable situations, as there are little to no
existing legal requirements and protections established. In
some respects, it is not unreasonable to associate home care
aides unaffiliated with reputable or established organizations
or who operate as independent contractors as part of an
underground home care industry whereby the public rests their
faith in the hope that the elderly and disabled are receiving
adequate and beneficial care in the home.
AB 1217 provided a structure by which established agencies and
individuals provide home care services are held accountable to
the public demand for greater standards and accountability for
home care aides. As a result, AB 1217 enacted the Home Care
Services Consumer Protection Act to be implemented January 1,
2015, which regulates the home care industry, except home
care/domestic referral agencies, by addressing home care
organizations, the home care aides they employ, and independent
home care aides.
Need for the bill : Stating the need for the bill, the author
writes:
Last year, the Legislature passed and the Governor signed
AB 1217 which enacted a series of consumer protections for
persons seeking home care services from agencies that
employ workers, but not from referral agencies that refer
independent workers to clients that are seeking home care
services. Both agency models, prior to AB 1217, prescreen
workers to verify worker competence, references, work
history, background-checks before sending workers to the
client. This bill will extend similar additional
protections enacted by AB 1217 to the referral home care
agency, consistent with model's statutory, Employment
Development Department and Internal Revenue Service
requirements which govern independent workers. It is
appropriate that consumers enjoy a consumer protection
standard applied to the whole industry, not just part of
the industry to minimize "bad actors."
AB 1863
Page 6
In addition, the entire industry, not just the employer
based model, should have access to the proverbial "good
housekeeping seal of approval" accorded the employer based
model. The referral based model provides legitimate,
cost-effective, and flexibility of choice to the consumer
while providing the assurance that workers have been
pre-screened. Currently, referral agencies are exempted
from [this bill's] mandates that only Health Care
Organizations can provide specific home care services. To
do so, the Home Care Organization must meet certain
requirements in a certain form that runs afoul of Civil
Code 1812.5095 and IRS regulations that govern Domestic
Referral Agencies. This bill will impose similar
requirements, but consistent with the provision of law and
federal regulation that govern Domestic Referral Agencies.
This will ensure a full breadth of industry consumer
protection and a level playing field for both models.
Staff comments : As stated by the author, this bill applies the
Act to home care aide referral agencies. In doing so, the bill
would create a second type of home care organization regulated
under state law, but with different operating requirements.
Specifically, this measure exempts home care workers referred by
a domestic referral agency from having to complete minimum
training requirements. Rather, it requires a referred home care
aide to complete a one-time competency exam to demonstrate his
or her mastery of the minimum qualifications a home care aide is
required to possess. Additionally, unlike a licensed home care
organization under the Act, a domestic referral organization
does not employ its home care aides. It acts solely as a
referring entity whereby the consumer, and not the referring
organization, enters into a contractual or other employer to
employee relationship with the home care aide. This can create
confusion for consumers, as there is not a clear delineation
between an 'affiliated home care aide' and an 'independent home
care aide.'
RECOMMENDED AMENDMENTS:
In order to clarify the difference between an affiliated home
care aide and an independent home care aide who is referred by a
domestic referral agency, the bill should be amended to do the
following:
1)Provide a clearer title of a domestic referral organization.
AB 1863
Page 7
Specifically, throughout the bill, rename 'home care referral
agency' as a 'domestic home care aide referral organization'
to more clearly indicate that the service a referral
organization is providing is purely a referral and that the
referring organization does not employ the home care aide, and
to align existing terminology with what is currently in the
Act.
2)Require domestic home care aide referral organizations to
appropriately inform potential consumers that:
a) They are not the employer of the home care aide;
b) The referral organization is not responsible for
providing workers' compensation for the aide; and
c) That by hiring the aide the consumer is entering into a
contractual relationship with the aide.
3)Clarify that the competency exam a referred independent home
care aide completes is equivalent to the required training an
affiliated home care aide undergoes, and that the referred
independent home care aide completes the exam annually.
4)Clarify that a registered home care aide who holds a current
and valid certified nurse's assistant or certified home health
aide certification is exempt from home care aide training or
exam requirements.
5)Align implementation of the Act with the Governor's signing
message of AB 1217 from 2013, which requested a one-year delay
in implementation of the Act.
REGISTERED SUPPORT / OPPOSITION :
Support
1 Plus 1 Senior Care
A Better Living Home Care Agency
At TLC Attendant Care Inc.
Public Policy Advocates
AB 1863
Page 8
Opposition
None on file.
Analysis Prepared by : Chris Reefe / HUM. S. / (916) 319-2089