Bill Text: CA SB411 | 2011-2012 | Regular Session | Enrolled
Bill Title: Home Care Services Act of 2012.
Spectrum: Partisan Bill (Democrat 9-0)
Status: (Vetoed) 2012-09-30 - In Senate. Consideration of Governor's veto pending. [SB411 Detail]
Download: California-2011-SB411-Enrolled.html
BILL NUMBER: SB 411 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 23, 2012
PASSED THE ASSEMBLY AUGUST 16, 2012
AMENDED IN ASSEMBLY AUGUST 13, 2012
AMENDED IN ASSEMBLY AUGUST 30, 2011
AMENDED IN ASSEMBLY AUGUST 15, 2011
AMENDED IN ASSEMBLY JULY 12, 2011
AMENDED IN ASSEMBLY JUNE 21, 2011
AMENDED IN ASSEMBLY JUNE 15, 2011
AMENDED IN SENATE MAY 31, 2011
AMENDED IN SENATE APRIL 28, 2011
AMENDED IN SENATE APRIL 26, 2011
AMENDED IN SENATE APRIL 7, 2011
INTRODUCED BY Senator Price
(Coauthors: Senators Alquist, DeSaulnier, Lieu, Padilla, and
Vargas)
(Coauthors: Assembly Members Beall, Lara, and Bonnie Lowenthal)
FEBRUARY 16, 2011
An act to add Chapter 13 (commencing with Section 1796.10) to
Division 2 of the Health and Safety Code, relating to public health.
LEGISLATIVE COUNSEL'S DIGEST
SB 411, Price. Home Care Services Act of 2012.
Existing law provides for the In-Home Supportive Services (IHSS)
program, a county-administered program under which qualified aged,
blind, and disabled persons receive services enabling them to remain
in their own homes. The IHSS program includes various eligibility
requirements for individuals who provide services to recipients under
the program. Under existing law, a private provider of in-home care
services is not subject to the requirements of the IHSS program.
Existing law provides for the licensing and regulation of various
community care facilities by the State Department of Social Services.
This bill would enact the Home Care Services Act of 2012, which
would provide, on and after July 1, 2013, for the licensure and
regulation of home care organizations, as defined, by the State
Department of Social Services, and the certification of home care
aides. The bill would exclude specified entities from the definition
of a home care organization. The bill would impose various licensure
requirements on a home care organization. The bill would also impose
a civil penalty on an individual or entity that operates a home care
organization without a license, except as specified. The bill would
require a home care organization to provide a client with specified
information before arranging for the provision of home care services,
as defined, to that client, including, but not limited to, the types
and hours of available home care services, and the extent to which
payment may be expected from specified sources. In addition, this
bill would require a home care organization, among other things, to
distribute to the client its advance directive policy and provide a
written notice to the client of certain rights. The bill would also
prohibit a home care organization from hiring an individual as a home
care aide unless that individual meets certain requirements,
including, but not limited to, demonstrating that he or she has
specified language skills and providing proof of certification as a
home care aide as specified.
The bill would require certain employment agencies to maintain
liability insurance, as specified, and ensure that any person it
refers to provide home care services has been certified prior to the
referral.
This bill would require background clearances for home care aides,
as prescribed, and would set forth specific duties of the home care
organization, the department, and the Department of Justice in this
regard. The bill would require home care aides to demonstrate they
are free of active tuberculosis. The bill would also require a home
care organization to conduct regular evaluations of its home care
aides, as specified. The bill would require the department to impose
various fees to be deposited in the Home Care Organization and Home
Care Aide Fund to be created by this bill. This bill, in addition,
would prescribe enforcement procedures, fines, and penalties for
violations of the act by a home care organization or a home care aide
and violations of specified requirements by an employment agency, as
defined.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature hereby finds and declares all of the
following:
(a) Seniors, individuals with disabilities, and the frail elderly
frequently find themselves in need of part-time to full-time
assistance from a caregiver in order to live at home independently.
(b) Out of the 701,000 estimated home care aides working in the
country, more than 70,000 work in California.
(c) The Employment Development Department has identified home care
services as one of the fastest growing fields of employment.
(d) In California, most individuals hiring a home care
organization believe that the home care aide entering their home has
been thoroughly screened and trained. However, a business license is
the only requirement needed to provide nonmedical home care services
in an individual's home.
(e) In view of the increasing number of home care aides entering
private homes, the number of incidents of abuse and neglect by home
care aides currently being reported in the media is alarming and
concerning because, according to prosecutors, for every reported
incident of abuse or neglect, four others go unreported.
(f) Twenty-three states, including Texas, Illinois, Florida, and
New York, have standards requiring home care organizations to
register or obtain a license.
(g) Discharge planners commonly maintain lists of home care aides
and home care organizations for purposes of patient referral without
any information about the individuals or the organizations, thereby
placing both the patient and the referring organization at risk.
(h) Typically, family members looking for home care services are
in a crisis and will not ask all of the "right" questions when
choosing a home care organization or an individual provider. In
addition, there is currently no centralized list of home care
organizations or individual providers in California for family
members, seniors, or disabled individuals to consult when in need of
home care services for their loved ones or themselves.
SEC. 2. Chapter 13 (commencing with Section 1796.10) is added to
Division 2 of the Health and Safety Code, to read:
CHAPTER 13. HOME CARE SERVICES
Article 1. General Provisions
1796.10. This chapter shall be known and may be cited as the Home
Care Services Act of 2012.
1796.11. The State Department of Social Services shall administer
and enforce this chapter.
1796.12. For purposes of this chapter, the following definitions
shall apply:
(a) "Client" means an individual who receives home care services.
(b) "Department" means the State Department of Social Services.
(c) "Employment agency" means an employment 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 Section 1812.5095 of the
Civil Code, as long as the agency is not the employer of a home care
aide or other worker who provides assistance with activities of daily
living to the consumer.
(d) "Family member" means any person who is related to the person
who receives home care services. This relationship shall be by blood,
adoption, marriage, domestic partnership, or affinity within the
fifth degree of kinship, including stepparents, stepsiblings, and all
relatives whose status is preceded by the words "great,"
"great-great," or "grand" or the spouse of any of these persons, even
if the marriage was terminated by death or dissolution.
(e) (1) "Home care aide" means an individual who provides home
care services to a client in the client's residence, and is
synonymous, for purposes of this chapter, with "caregiver,"
"custodial care," "personal care attendant," "homemaker," and
"companion." In addition, "home care aide" includes an individual who
qualifies as a personal attendant, as defined in Industry Wage Order
15-2001, issued by the Industrial Welfare Commission, who provides
home care services.
(2) "Home care aide" does not include either of the following:
(A) A family member of the person who receives home care services.
(B) A person who is employed by, or contracts with, an
organization vendored or contracted through a regional center or the
State Department of Developmental Services pursuant to the Lanterman
Developmental Disabilities Services Act (Division 4.5 (commencing
with Section 4500) of the Welfare and Institutions Code) and the
California Early Intervention Services Act (Title 14 (commencing with
Section 95000) of the Government Code) to provide services and
support for persons with developmental disabilities, as defined in
Section 4512 of the Welfare and Institutions Code, when funding for
those services is provided through the State Department of
Developmental Services and more than 50 percent of the recipients of
the home care services provided by the organization are persons with
developmental disabilities.
(f) (1) "Home care organization" or "organization" means 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 and that is licensed pursuant to this chapter.
(2) "Home care organization" does not include any of the
following:
(A) A home health agency licensed under Chapter 8 (commencing with
Section 1725).
(B) A hospice licensed under Chapter 8.5 (commencing with Section
1745).
(C) A health facility licensed under Chapter 2 (commencing with
Section 1250).
(D) A county providing in-home supportive services pursuant to
Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of
Division 9 of the Welfare and Institutions Code, without regard to
whether the county provides these services as a public authority or
through a nonprofit consortium established pursuant to Section
12301.6 of the Welfare and Institutions Code.
(E) A home medical device retail facility licensed under Section
111656.
(F) An organization vendored or contracted through a regional
center or the State Department of Developmental Services pursuant to
the Lanterman Developmental Disabilities Services Act (Division 4.5
(commencing with Section 4500) of the Welfare and Institutions Code)
and the California Early Intervention Services Act (Title 14
(commencing with Section 95000) of the Government Code) to provide
services and support for persons with developmental disabilities, as
defined in Section 4512 of the Welfare and Institutions Code, when
funding for those services is provided through the State Department
of Developmental Services and more than 50 percent of the recipients
of the home care services provided by the organization are persons
with developmental disabilities.
(G) An employment agency, as defined in Section 1812.5095 of the
Civil Code, that procures, offers, refers, provides, or attempts to
provide a home care aide or other worker who provides home care
services or domestic services to clients and consumers pursuant to
that section, as long as the agency is not the employer of the home
care aide or other worker who provides to the clients or consumers
assistance with activities of daily living, including, but not
limited to, bathing, dressing, feeding, toileting, ambulation, and
transferring.
(H) A residential care facility for the elderly licensed under
Chapter 3.2 (commencing with Section 1569).
(g) "Priority one complaint" means a complaint of sexual abuse
that involves penetration, a complaint of physical abuse that
involves an act that results in great bodily injury, such as a broken
bone, severe cut, head injury, or burn, or a complaint of suspicious
circumstances regarding the death of a client.
(h) "Priority two complaint" means a complaint of sexual abuse
that involves sexual behavior that does not include penetration, a
complaint of physical abuse that involves an act that results in a
minor injury or bruise, or a complaint of felony offenses, including,
but not limited to, robbery, arson, grand theft, and chemical
restraint.
(i) "Residence" means a temporary or permanent location where a
client receives home care services.
(j) "Transportation" means transportation in a motor vehicle in
good working order provided by a home care aide who is a licensed and
insured driver.
1796.13. (a) For purposes of this chapter, "home care services"
means services provided by a home care aide to a client who, because
of advanced age or physical or mental infirmity, cannot perform these
services for himself or herself. These services include, but are 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, correspondence, making telephone calls,
shopping for personal care items or groceries, and companionship.
This subdivision shall not be construed to authorize a home care aide
to administer medication that would otherwise require administration
or oversight by a licensed healthcare professional.
(b) Home care services shall not include any of the following:
(1) Services authorized to be provided by a licensed home health
agency under Chapter 8 (commencing with Section 1725).
(2) Services authorized to be provided by a licensed hospice
pursuant to Chapter 8.5 (commencing with Section 1745).
(3) Services authorized to be provided by a licensed health
facility pursuant to Chapter 2 (commencing with Section 1250).
(4) In-home supportive services provided pursuant to Article 7
(commencing with Section 12300) of Chapter 3 of Part 3 of Division 9
of the Welfare and Institutions Code.
(5) Services authorized to be provided by a licensed residential
care facility for the elderly pursuant to Chapter 3.2 (commencing
with Section 1569).
(6) Services authorized to be provided pursuant to Section 2731 of
the Business and Professions Code.
(c) This chapter shall not be construed to prohibit an individual
from employing a home care aide without the assistance of a home care
organization.
Article 2. Licensure
1796.20. (a) On and after July 1, 2013, subject to the exceptions
set forth in paragraph (2) of subdivision (f) of Section 1796.12, an
individual, partnership, corporation, limited liability company,
joint venture, association, or other entity shall not arrange for the
provision of home care services by a home care aide to a client in
this state before obtaining a license pursuant to this chapter.
(b) An individual or entity that violates subdivision (a) shall be
liable for a civil penalty not to exceed nine hundred dollars ($900)
per day for each calendar day of each violation.
(c) Upon discovering that an individual or entity is in violation
of subdivision (a), the department shall send a written notice of
noncompliance to the individual or entity and to the Attorney General
or appropriate district attorney. Upon receiving this notice, the
Attorney General or district attorney shall do any or all of the
following:
(1) Issue a cease and desist order, which shall remain in effect
until the individual or entity has obtained a license pursuant to
this chapter. If the individual or entity fails to comply with the
cease and desist order within 20 calendar days, the Attorney General
or a district attorney shall apply for an injunction.
(2) Impose the civil penalty described in subdivision (b).
(3) Bring an action against the individual or entity under Chapter
5 (commencing with Section 17200) of Part 2 of Division 7 of the
Business and Professions Code.
(d) The requirements of this section shall not apply to an
employment agency, as defined in Section 1812.5095 of the Civil Code,
that procures, offers, refers, provides, or attempts to provide a
home care aide or other worker who provides home care services or
domestic services to clients and consumers pursuant to that section,
as long as the agency is not the employer of the home care aide or
other worker who provides assistance with activities of daily living
to the consumer.
1796.21. A home care organization that has its principal place of
business in another state, in addition to the other requirements of
this chapter, shall comply with both of the following requirements
before arranging for the provision of home care services by a home
care aide to a client in California:
(a) Have an office in California.
(b) Obtain authorization from the Secretary of State to conduct
business in California.
1796.22. The enactment of this chapter is an exercise of the
police power of the state for the protection of the public welfare,
prosperity, health, safety, and peace of its people. The civil
penalties provided by this chapter are in addition to any other
penalty provided by law.
1796.23. In order to carry out the provisions of this chapter,
the department may do any of the following:
(a) Adopt rules and regulations to implement this chapter.
(b) Establish procedures for the receipt, investigation, and
resolution of complaints against home care organizations.
(c) Investigate priority one and priority two complaints by
certified home care aides not employed by a home care organization.
The department may take disciplinary action in accordance with
subdivision (d) of Section 1796.30.
(d) (1) Maintain on the department's Internet Web site a registry
of, with the capability to look up the certification status of, any
certified home care aide, the name and location of the home care aide'
s employer, if there is one, or name and location of all employers if
there are more than one, and any disciplinary action taken against
the home care aide. In the case of a home care aide who is an
independent contractor and not employed by an organization, the
Internet Web site shall indicate that status. To expedite the ability
of a consumer to search and locate an appropriate home care aide,
the Internet Web site shall enable consumers to look up the
certification status, including any disciplinary action taken against
the home care aide, by providing the home care aide's name,
certificate number, and geographic location. The Internet Web site
shall not provide any additional, individually identifiable
information about a home care aide. The department also may request
and maintain additional employment information for a certified home
care aide, as necessary, which shall not be publicly available on the
registry.
(2) The department shall update the Internet Web site upon
receiving notification from a certified home care aide that he or she
has left a home care organization or has changed home care
organizations.
(e) Maintain a registry on the department's Internet Web site on
the licensure status of all licensed home care organizations, along
with the name, address, and telephone number of the home care
organization, and the status of any proposed or completed
disciplinary action against the licensed home care organization. The
department also may request and maintain additional information for a
licensed home care organization, as necessary, which shall not be
publicly available on the registry.
1796.24. Notwithstanding any other provision of this chapter, the
department shall issue a home care organization license to an entity
that satisfies all of the following requirements:
(a) Files an application, including the fees required pursuant to
Section 1796.70.
(b) Submits proof of general and professional liability insurance
in the amount of at least one million dollars ($1,000,000) per
occurrence and three million dollars ($3,000,000) in the aggregate.
(c) Submits proof of a valid workers' compensation policy covering
its home care aides. The proof shall consist of the policy number,
the effective and expiration dates of the policy, and the name and
address of the policy carrier.
(d) Provides the department with a complete list of its home care
aides, and proof that each satisfies the requirements of Section
1796.60.
(e) The owner or owners of the organization pass a background
clearance, as required pursuant to Section 1796.26.
1796.25. (a) The term of a license issued pursuant to this
chapter shall be two years.
(b) A license may be renewed upon application to the department
and the payment of a renewal fee prescribed by the department.
(c) At least 90 days before the expiration of a license, the
department shall mail to the licensee, at the latest address
furnished by the licensee to the department, a notice stating the
amount of the renewal fee and the date on which it is due, and that
failure to pay that fee on or before the date due will result in the
expiration of the license.
1796.26. (a) In order to obtain a license, the following
individual or individuals shall consent to the background clearance
described in Section 1796.62:
(1) The owner or owners of a home care organization if the owners
are individuals.
(2) If the owner of a home care organization is a corporation,
limited liability company, joint venture, association, or other
entity, an individual having a 10-percent or greater interest in that
entity.
(b) (1) If the background clearance conducted pursuant to
subdivision (a) discloses a conviction for a crime that is
substantially related to the qualifications, functions, or duties of
operating a home care organization, the application for a license may
be denied.
(2) Notwithstanding paragraph (1), a license shall not be denied
under this section if the applicant has obtained a certificate of
rehabilitation under Chapter 3.5 (commencing with Section 4852.01) of
Title 6 of Part 3 of the Penal Code or the information or accusation
against him or her has been dismissed pursuant to Section 1203.4 of
the Penal Code.
(c) In determining whether or not to deny the application for
licensure or renewal pursuant to subdivision (b), the department
shall take into consideration the following factors as evidence of
good character and rehabilitation:
(1) The nature and seriousness of the conduct or crime under
consideration and its relationship to the person's employment duties
and responsibilities.
(2) Activities since conviction, including employment or
participation in therapy or education, that would indicate changed
behavior.
(3) The time that has elapsed since the commission of the conduct
or offense referred to in paragraph (1) or (2) and the number of
offenses.
(4) The extent to which the person has complied with any terms of
parole, probation, restitution, or any other sanction lawfully
imposed against the person.
(5) Any rehabilitation evidence, including character references,
submitted by the person.
(6) Employment history and current employer recommendations.
(7) Circumstances surrounding the commission of the offense that
would demonstrate the unlikelihood of repetition.
(d) If the department makes a determination to deny an
application, the department shall notify the applicant of this
determination by either personal service or registered mail. The
notice shall include the following information:
(1) A statement of the department's reasons for the denial that
evaluates evidence of rehabilitation submitted by the applicant, if
any, and that specifically addresses any evidence submitted relating
to the factors considered in subdivision (c).
(2) A copy of the applicant's criminal offender record information
search response. The department shall provide this information in a
manner that protects the confidentiality and privacy of the criminal
offender record information search response.
(A) The state criminal history record shall not be modified or
altered from its form or content as provided by the Department of
Justice.
(B) The department shall record the date the copy of the response
was provided to the individual.
(C) The criminal offender record information search response shall
not be made available by the department to any individual other than
the applicant.
(3) An opportunity to correct inaccurate information on the record
by submitting certified court minute orders to the department.
(e) (1) Upon written notification that the department has
determined that a license shall be denied, the applicant may request
an administrative hearing by submitting a written request to the
department within 15 business days of receipt of the written
notification. Upon receipt of a written request, the department shall
hold an administrative hearing consistent with the procedures
specified in Section 100171, except where those procedures are
inconsistent with this section.
(2) A hearing under this subdivision shall be conducted by a
hearing officer or administrative law judge designated by the
director. A written decision shall be sent by certified mail to the
applicant.
1796.27. A private or public organization, with the exception of
a county providing in-home supportive services pursuant to Article 7
(commencing with Section 12300) of Chapter 3 of Part 3 of Division 9
of the Welfare and Institutions Code, and the exceptions provided for
in subdivision (c), shall not do any of the following, unless it is
licensed under this chapter:
(a) Represent itself to be a home care organization by its name or
advertising, soliciting, or any other presentments to the public, or
in the context of services within the scope of this chapter, imply
that it is licensed to provide those services or to make any
reference to employee bonding in relation to those services.
(b) Use the terms "home care organization," "home care," "in-home
care," or any combination of those terms, within its name.
(c) This section does not apply to either of the following:
(1) A county providing in-home supportive services pursuant to
Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of
Division 9 of the Welfare and Institutions Code.
(2) An employment agency, as defined in Section 1812.5095 of the
Civil Code, that procures, offers, refers, provides, or attempts to
provide a home care aide or other worker who provides home care
services or domestic services to clients and consumers pursuant to
that section, as long as the agency is not the employer of a home
care aide or other worker who provides domestic services.
Article 3. Complaints, Inspections, and Investigations
1796.30. (a) The department may review and, if it determines
necessary, investigate complaints filed against home care
organizations or home care aides not employed by a home care
organization that meet the specified definition of a priority one or
priority two complaint.
(b) The department shall verify through random, unannounced
inspections at least once every five years that a home care
organization meets the requirements of this chapter and the
regulations adopted pursuant thereto.
(c) An investigation or inspection conducted by the department
pursuant to this chapter may include, but is not limited to, the
following:
(1) Inspection of the books, records, and premises of a home care
organization. An organization's refusal to make those records, books,
or premises available shall constitute cause for the revocation of
the organization's license.
(2) Direct observation of the provision of home care services to a
client in the client's residence, if the client's consent is
obtained.
(d) If the department determines that a home care aide is in
violation of this chapter or any rules promulgated hereunder, a
notice of violation shall be served upon the individual. Each notice
of violation shall be prepared in writing and shall specify the
nature of the violation and the statutory provision or rule alleged
to have been violated. The notice shall inform the individual of any
action the department may take under this chapter, including an
action to suspend, revoke, or deny renewal of the certificate. The
director or his or her designee shall also inform the individual of
his or her rights to a hearing under this chapter.
Article 4. Home Care Organization Operating Requirements
1796.40. A home care organization shall do all of the following:
(a) Post its license in its place of business in a conspicuous
location, visible both to clients and to its home care aides.
(b) Operate the organization in a commercial office space that
complies with local zoning ordinances.
(c) Have plans, procedures, and policies in place, including all
of the following:
(1) Plans and procedures to be followed in the event of
emergencies or natural disasters that would result in the
interruption of home care services.
(2) A documented backup staffing plan in the event that a home
care aide scheduled to provide home care services becomes
unavailable.
(3) A written policy regarding advance directives.
(4) A receipt and disbursement policy for expenditures made on
behalf of a client to ensure that financial abuse does not occur.
(d) Maintain a valid workers' compensation policy covering its
home care aides.
(e) Maintain an employee dishonesty bond, including third-party
coverage, with a minimum limit of ten thousand dollars ($10,000).
(f) Comply with the regulations adopted by the department
implementing this chapter.
1796.41. With respect to home care aides employed by a home care
organization, the organization shall consult the department's
registry, if a registry is maintained by the department, before
hiring an individual or placing him or her in direct contact with
patients. In addition, the organization shall do all of the
following:
(a) (1) Ensure that each of its home care aides employed before
January 1, 2014, meets the requirements of Section 1796.61 no later
than July 1, 2014.
(2) Ensure that all individuals hired on or after January 1, 2014,
have met the requirements of Section 1796.61 before being hired as a
home care aide.
(b) (1) Investigate complaints made by a client, or a client's
family member or guardian, against home care aides regarding a
service that is or fails to be furnished. The organization shall
document both the existence and the resolution of those complaints.
(2) If the home care organization completes an investigation of a
complaint against a home care aide pursuant to paragraph (1) and
finds that, in its opinion, the home care aide is in violation of
this chapter, the home care organization shall immediately notify the
department in order for the department to take the appropriate
steps, which may include revoking the home care aide's certificate.
(c)
Evaluate home care aides as follows:
(1) Conduct an annual assessment of the performance and
effectiveness of each home care aide, including, if client consent is
obtained, at least one observation of the aide providing home care
services in the residence of a client.
(2) Every 90 days, supervise each home care aide providing home
care services in the residence of a client, provided that client
consent is obtained. The supervision required by this paragraph shall
not be billed to the client.
(d) Ensure that a home care aide, when providing services to a
client, has access at all times to a representative of the
organization who is in a supervisory capacity and who does not
regularly render home care services to that client.
(e) Require a home care aide, while providing home care services,
to wear a badge that includes all of the following information in
12-point type or larger:
(1) The aide's name.
(2) A photograph of the aide.
(3) The name of the home care organization.
(4) The expiration date of the license of the home care
organization.
(5) The home care aide's certificate number as issued by the
department.
(f) Require home care aides to demonstrate that they are free of
active tuberculosis, pursuant to Section 1796.63.
(g) Require home care aides to annually complete not less than
five paid hours of department-approved training on job-related
topics.
(h) Prohibit home care aides from accepting money or property from
a client without written permission from the home care organization.
(i) Immediately notify the department when the home care
organization no longer employs an individual as a home care aide in
order for the department to update its Internet Web site.
Article 4.5. Employment Agency Insurance
1796.45. (a) An employment agency, as defined in Section
1812.5095 of the Civil Code, that procures, offers, refers, provides,
or attempts to provide a home care aide who provides home care
services or other worker who provides assistance with activities of
daily living to the client or consumer pursuant to that section,
shall, at all times, maintain general and professional liability
insurance in the amount of at least one million dollars ($1,000,000)
per occurrence and three million dollars ($3,000,000) in the
aggregate.
(b) An employment agency shall submit to the department proof of
insurance required pursuant to subdivision (a) no later than July 1,
2013, and annually thereafter.
(c) The department may assess a civil penalty not to exceed nine
hundred dollars ($900) a day for violation of this section.
Article 5. Client Rights
1796.50. With respect to clients, a home care organization shall
do all of the following:
(a) Advise a client of any change in the client's plan for home
care services.
(b) Before arranging for the provision of home care services to a
client, do all of the following:
(1) Distribute to the client its advance directive policy, along
with a written summary of applicable state law.
(2) Advise the client of its policy regarding the disclosure of
client records.
(3) Inform the client of the types and hours of available home
care services.
(4) Inform the client, orally and in writing, of the home care
services that are or are not covered by Medi-Cal or Medicare, as
applicable, and the extent to which payment may be expected from the
client, from Medicare or Medi-Cal, and from any other source.
(c) Inform the client, both orally and in writing, of a change to
the information provided in paragraph (4) of subdivision (b) as soon
as possible, but not later than 30 days of becoming aware of that
change.
(d) Have a written agreement with the client that includes, but is
not limited to, the cost of and the hours during which home care
services will be provided to the client and reference to the personal
attendant requirements, if applicable, as referenced in Wage Order
15-2001, issued by the Industrial Welfare Commission.
1796.51. (a) Home care clients are entitled to the following
rights:
(1) The right to have the client's property treated with respect.
(2) 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.
(3) The right to be informed of and to participate in the planning
of the client's home care services.
(4) The right to confidentiality of the client's personal
information.
(b) Before arranging for the provision of home care services to a
client, a home care organization shall provide a written notice to
the client stating that the client has all of the rights enumerated
in subdivision (a).
(c) A home care organization shall maintain written documentation
showing that it has complied with subdivision (a).
(d) If a client lacks the capacity to understand the rights listed
in this section, as determined by a court of competent jurisdiction
or by the client's physician, unless the physician's opinion is
controverted by the client or the client's legal representative, the
client's legal representative shall have those rights.
(e) A home care organization shall protect, and promote the
exercise of, the rights listed in this section.
Article 6. Home Care Aides
1796.60. (a) (1) Beginning January 1, 2014, the department shall
require any person hired as a home care aide on or after January 1,
2014, to be certified before being hired and shall require that any
home care aide or person providing assistance with activities of
daily living to the client or consumer referred by an employment
agency, as defined in Section 1812.5095 of the Civil Code, be
certified prior to any referral.
(2) The term of a certificate issued pursuant to this chapter
shall be two years. The certificate may be renewed upon application
to the department and payment of the renewal fee prescribed by the
department pursuant to this chapter.
(b) In order to receive a certificate from the department to
provide home care services for the elderly or persons with
disabilities, a home care aide shall meet the minimum training
requirements in this section. Only training curriculum approved by
the department may be used to fulfill the training requirements
specified in this section.
(c) (1) A prospective home care aide shall complete a minimum of
five hours of entry-level training, as follows:
(A) Two hours of orientation training regarding his or her role as
caregiver and the applicable terms of employment.
(B) Three hours of safety training, including basic safety
precautions, emergency procedures, and infection control.
(C) Other training related to core competencies and
population-specific competencies as required by regulation.
(2) If the department determines that the training required by
paragraph (1) is unavailable in an applicant's county, the department
shall issue a temporary home care aide certificate to that
individual that will be valid until the date that proper training is
made available in that county. Upon completion of the required
training, the department shall replace the temporary home care aide
certificate and issue a permanent home care aide certificate.
(3) The entry-level training, and annual training on
department-approved job-related topics, may be completed through an
online training program.
(d) The department shall only approve a training curriculum that
satisfies both of the following conditions:
(1) The training curriculum has been developed with input from
consumer and worker representatives.
(2) The training curriculum requires comprehensive instruction by
qualified instructors on the competencies and training topics
identified in this section.
(e) The applicant shall consent to the background clearance
described in Section 1796.62.
(f) The department shall issue a home care aide certificate to
each individual who meets the requirements of this section.
(g) The department shall set a fee for certification under this
section that shall be paid for by the home care aide.
(h) The applicant shall submit to an examination, as defined in
Section 1796.63, to determine if he or she is free of active
tuberculosis.
1796.61. (a) On and after January 1, 2014, a home care
organization shall not hire an individual as a home care aide unless
the individual complies with all of the following requirements:
(1) Completes an individual interview, to the satisfaction of the
organization.
(2) Provides at least two work- or school-related references or,
for an individual with no previous work experience, at least two
character references from nonrelatives. The organization shall verify
the references before hiring the individual.
(3) Demonstrates that he or she possesses sufficient language
skills to read and understand instructions, prepare and maintain
written reports and records, and communicate with a client.
(4) Provides proof of certification as a home care aide, pursuant
to Section 1796.60.
(b) For home care aides employed by a home care organization
before January 1, 2014, a certificate pursuant to this chapter shall
be obtained by July 1, 2014, in order for both the home care aide and
the home care organization to be in compliance with this chapter.
(c) (1) Notwithstanding any other provision of law, an employment
agency, as defined in Section 1812.5095 of the Civil Code, shall
ensure that any home care aide it refers to provide home care
services, or person it refers who provides assistance with activities
of daily living to the client or consumer, has been certified under
Section 1796.60 prior to the referral.
(2) The department may investigate complaints against an
employment agency, as defined in Section 1812.5095 of the Civil Code,
including, but not limited to, complaints made by a client or a
client's family member or guardian if the employment agency fails to
comply with the provisions of this section. An employment agency that
violates this subdivision shall be liable for a civil penalty not to
exceed nine hundred dollars ($900) per day for each calendar day of
each violation.
1796.62. (a) A background clearance is required, unless the
individual holds a valid, unexpired license, certification, or
registration in a health-related field that requires a background
check as a condition of the license, certification, or registration.
(b) (1) The applicant shall electronically submit to the
Department of Justice fingerprint images and related information
required by the Department of Justice of all home care aides, as
defined under subdivision (e) of Section 1796.12, for the purposes of
obtaining information as to the existence and content of a record of
state convictions and state arrests, and also information as to the
existence and content of a record of state arrests for which the
Department of Justice establishes that the person is free on bail or
on his or her own recognizance pending trial or appeal.
(2) The Department of Justice shall provide a state response to
the department pursuant to paragraph (1) of subdivision (n) of
Section 11105 of the Penal Code.
(3) The department shall request from the Department of Justice
subsequent arrest notification service, as provided pursuant to
Section 11105.2 of the Penal Code, for persons described in paragraph
(1).
(4) The Department of Justice shall charge a fee not to exceed the
actual cost of processing the request described in this subdivision.
(c) If the background check required by subdivision (b) discloses
a conviction or incarceration for a conviction of any of the
following provisions of the Penal Code within 10 years, the
department shall deny the home care aide certification to that
individual:
(1) A violation of subdivision (a) of Section 273a of the Penal
Code, or Section 368 of the Penal Code, or similar violations in
another jurisdiction.
(2) A violent or serious felony, as specified in subdivision (c)
of Section 667.5 of the Penal Code and subdivision (c) of Section
1192.7 of the Penal Code.
(3) A felony offense for which a person is required to register
under subdivision (c) of Section 290 of the Penal Code. For purposes
of this subparagraph, the 10-year time period specified in this
section shall commence with the date of conviction for, or
incarceration following a conviction for, the underlying offense, and
not the date of registration.
(d) Notwithstanding subdivision (c), a certification shall not be
denied under this section if the applicant has obtained a certificate
of rehabilitation under Chapter 3.5 (commencing with Section
4852.01) of Title 6 of Part 3 of the Penal Code or the information or
accusation against him or her has been dismissed pursuant to Section
1203.4 of the Penal Code.
(e) Upon determination to deny an application, if the denial of a
certificate is due at least in part to the applicant's state criminal
history record, the department shall notify the applicant of this
determination by either personal service or registered mail, and the
notification shall include the same information as required in
subdivision (d) of Section 1796.26.
(f) An applicant who has been convicted of an offense identified
in subdivision (c) may seek from the department a general exception
to the exclusion provided for in this section. The department shall
consider the same factors when determining whether to grant a general
exception as considered in subdivision (c) of Section 1796.26.
(g) (1) Upon written notification that the department has
determined that a request for exception shall be denied, the
applicant may request an administrative hearing by submitting a
written request to the department within 15 business days of receipt
of the written notification. Upon receipt of a written request, the
department shall hold an administrative hearing consistent with the
procedures specified in Section 100171, except where those procedures
are inconsistent with this section.
(2) A hearing under this subdivision shall be conducted by a
hearing officer or administrative law judge designated by the
director. A written decision shall be sent by certified mail to the
applicant.
(h) The applicant shall complete and pay for the background
clearance specified in subdivision (b).
(i) A home care aide employed on or after January 1, 2014, shall
not be permitted to provide home care services until he or she passes
the background clearance pursuant to this section.
1796.63. (a) An individual hired as a home care aide on or after
January 1, 2014, shall be terminated from employment unless the
individual submitted to an examination within six months prior to
employment to determine that the individual is free of active
tuberculosis. For purposes of this section, "examination" consists of
a tuberculin skin test and, if that test is positive, an X-ray of
the lungs.
(b) A home care aide whose employment with a home care
organization began before January 1, 2014, shall submit to the
examination described in subdivision (a) before July 1, 2014.
(c) After submitting to an examination, a home care aide whose
tuberculin skin test is negative shall be required to undergo an
examination at least once every two years. Once a home care aide has
a documented positive skin test that has been followed by an X-ray,
the examination is no longer required.
(d) After the examination, a home care aide shall submit, and the
organization shall keep on file, a certificate from the examining
practitioner showing that the home care aide was examined and found
free from active tuberculosis.
(e) The examination is a condition of initial and continuing
employment with the home care organization. The home care aide shall
pay the cost of the examination.
(f) A home care aide who transfers employment from one
organization to another shall be deemed to meet the requirements of
subdivision (a) or (b) if that individual can produce a certificate
showing that he or she submitted to the examination within the past
two years and was found to be free of communicable tuberculosis, or
if it is verified by the organization previously employing him or her
that it has a certificate on file which contains that showing.
(g) Notwithstanding the results of an examination, a home care
aide shall annually complete a tuberculosis survey that includes, but
is not limited to, all of the following information:
(1) The individual's name, address, and telephone number.
(2) The date and result of all previous tuberculin skin tests and,
where applicable, all X-ray examinations.
(3) Answers to questions concerning whether the individual has
recently experienced any of the following symptoms:
(A) A chronic cough for a period exceeding two weeks.
(B) Chronic fatigue or listlessness for a period exceeding two
weeks.
(C) Fever for a period exceeding one week.
(D) Night sweats.
(E) Unexplained weight loss of eight pounds or more.
Article 7. Revenues
1796.70. (a) The department shall assess licensure and
certification fees in amounts sufficient to support the costs of each
activity authorized by this chapter. Except for General Fund moneys
that are otherwise transferred or appropriated for the initial costs
of administering this chapter, or penalties collected pursuant to
this chapter that are appropriated by the Legislature for the
purposes of this chapter, no General Fund moneys shall be used for
any purpose under this chapter.
(b) The Home Care Organization and Home Care Aide Fund is hereby
created within the State Treasury for the purpose of this chapter.
All licensure and certification fees authorized by this chapter shall
be deposited into the Home Care Organization and Home Care Aide
Fund. Moneys in this fund shall, upon appropriation by the
Legislature, be made available to the department for purposes of
administering this chapter.
(c) The licensure fee shall be equivalent to the cost of
administering the licensure program, as defined by the department.
(d) The certification fee shall be equivalent to the cost of
administering the certification program, as defined by the
department.
(e) Commencing February 1, 2014, and every February 1 thereafter,
the department shall publish the fees estimated pursuant to this
section. The calculation of estimated fees and the publication of
estimated fees shall not be subject to the rulemaking requirements of
Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code. By February 1 of each year, the
department shall make the fee estimates available to the public by
submitting them to the Legislature and posting them on the department'
s Internet Web site.
(f) (1) The department shall prepare a report of all costs for
home care licensure and home care aide certification activities. At a
minimum, this report shall include a narrative of all baseline
adjustments and their calculations, descriptions of assumptions used
in any calculations, and shall recommend home care organization
licensure fees and home care aide certification fees sufficient to
support projected costs.
(2) The department shall make a copy of the report available to
the public on the department's Internet Web site and provide a copy
to the Legislature. A report to the Legislature shall be submitted in
compliance with Section 9795 of the Government Code.
Article 8. Enforcement and Penalties
1796.80. (a) A home care organization or employment agency, as
defined in Section 1812.5095 of the Civil Code, providing certified
home care aides, that operates in violation of any requirement or
obligation imposed by this chapter or any implementing rule or
regulation, may be subject to the fines levied or licensure action
taken by the department as specified in this section.
(b) When the department determines that a home care organization
is in violation of this chapter or any rules promulgated hereunder or
that an employment agency is in violation of Section 1796.45 or
subdivision (a) of Section 1796.60, a notice of violation shall be
served upon the licensee. Each notice of violation shall be prepared
in writing and shall specify the nature of the violation and the
statutory provision or rule alleged to have been violated. The notice
shall inform the licensee of any action the department may take
under this chapter, including the requirement of an agency plan of
correction, assessment of a penalty, or action to suspend, revoke, or
deny renewal of the license. The director or his or her designee
shall also inform the licensee of rights to a hearing under this
chapter.
(c) The department may impose a fine of up to nine hundred dollars
($900) per violation per day commencing on the date the violation
was identified and ending on the date each violation is corrected, or
action is taken to suspend, revoke, or deny renewal of the license,
whichever comes first.
(d) In determining the penalty or licensure action, the director
shall consider all of the following factors:
(1) The gravity of the violation, including the probability that
death or serious physical or mental harm to a client will result or
has resulted, the severity of the actual or potential harm, and the
extent to which the provisions of the applicable statutes or
regulations were violated.
(2) The reasonable diligence exercised by the licensee and efforts
to correct violations.
(3) Any previous violation committed by the licensee.
(4) The financial benefit to the home care organization of
committing or continuing the violation.
(e) The department shall adopt regulations establishing procedures
for notices, correction plans, appeals, and hearings. In developing
the procedures, the department shall convene and consult with a
working group of affected stakeholders.
1796.81. Any fines and penalties collected pursuant to this
chapter shall be deposited into the Home Care Organization and Home
Care Aide Penalties Subaccount, which is hereby created within the
Home Care Organization and Home Care Aide Fund created pursuant to
Section 1796.70. Moneys in this account shall, upon appropriation by
the Legislature, be made available to the department for purposes of
enforcing this chapter.
