California Regulates Home Care Organizations and Aides

The California legislature passed Assembly Bill 1217 creating Chapter 13 (commencing with Section 1796.10) to Division 2 of the Health and Safety Code. It is cited as the “Home Care Services Consumer Protection Act of 2013.” Governor Brown signed the legislation on October 13, 2013. The new law requires licensure and regulation of home care organizations, and registration of home care aides. It also requires the Department of Social Services to establish and maintain a home care aide registry. The registry will be available to the public, so background screening agents should be able to check it.

The law establishes two types of “registered” home care aides. They are:

1. “Affiliated home care aide” means an individual, 18 years of age or older, who is employed by a home care organization to provide home care services to a client.
2. “Independent home care aide” means an individual, 18 years of age or older, who is not employed by a home care organization, and is providing home care services through a direct agreement with a client.

Individuals wanting to become a registered home care aide must submit an application and provide either a valid California driver’s license, valid identification card issued by the Department of Motor Vehicles, or a valid Alien Registration Card. If an individual lives in a state other than California, he or she must present a valid numbered photo identification card issued by an agency of the individual’s home state. Applicants must also submit fingerprints to the Department of Justice and a signed declaration disclosing any prior criminal convictions. The Department of Justice will conduct a criminal background search of the state and Federal Bureau of Investigation criminal offender record information.  Individuals who have a current license or are employees in a facility licensed by the Department of Social Services, or who are a certified foster parent, a certified administrator, or a registered TrustLine provider, are exempt from the criminal background check requirement.

The department may revoke or deny a registered home care aide’s registration application or renewal if he or she does any of the following:

1. Obtains registration or renewal by fraud or misrepresentation.
2. Knowingly makes or gives a false statement or information on the registration application or renewal form.
3. Has a criminal conviction other than a minor traffic violation, but the director may grant an exemption if there is substantial and convincing evidence to support a reasonable belief that the applicant is of good character. 
4. Engages or has engaged in an incident of abuse or neglect or other conduct that poses a threat to the health and safety of any current or potential client.
5. Violates, or aids, abets, or permits the violation of the laws and regulations about home care services.
6. Engages in or has engaged in conduct that is contrary to the health, morals, welfare, or safety of the people of the state or person receiving or seeking to receive home care services.
7. Engages in or has engaged in financial malfeasance involving a client.

According to the new law, the department must establish a home care aide registry and continuously update the registry information. Independent home care aides may (but are not required to) be listed on the home care aide registry. Affiliated home care aides are required to be listed on the registry before providing home care services to a client. The law does not prohibit the employment of an individual not listed on the home care aide registry. The department will update the registry to reflect a home care aide applicant’s status when the individual is issued a criminal record clearance or is given a criminal record exemption. The Department of Justice will maintain and continually update pertinent criminal offender record information of registered home care aides, and inform the department of social services of subsequent reports of criminal convictions.

Assembly Bill 1217 also requires licensure and establishes regulation of home care organizations. It defines a “home care organization” as an individual, 18 years of age or older, or entity, that arranges for home care services by an affiliated home care aide to a client. In order to obtain a home care organization license, owners must submit an application and provide either a valid California driver’s license, valid identification card issued by the Department of Motor Vehicles, or a valid Alien Registration Card. If an individual lives in a state other than California, he or she must present a valid numbered photo identification card issued by an agency of the individual’s home state. The owner or owners of the organization must pass a background clearance and submit fingerprints. If the owner is a legal entity, an individual having a ten percent or greater interest in the entity must consent to a background clearance.

Other requirements necessary for a home care organization license include:

1. Proof of general and professional liability insurance in the amount of at least one million dollars per occurrence and three million dollars in the aggregate.
2. Proof of a valid workers’ compensation policy covering its affiliated home care aides.
3. On the department’s request, a complete list of its affiliated home care aides, and proof that each satisfies the requirements necessary for employment with a home care organization.
4. Proof that the applicant does not have any outstanding fees or civil penalties due to the department.

A home care organization that employs affiliated home care aides must ensure that each aide is cleared on the home care aide registry before placing the individual in direct contact with clients. It must ensure that each aide has submitted to a criminal background check. It must ensure that each aide is free of active tuberculosis disease and re-test aides once every two years. It must notify the department whenever it no longer employs an individual as an affiliated home care aide. It must ensure that affiliated home care aides have completed the entry-level training before delivering home care services and have completed the annual minimum five hours of training.

The law also establishes enforcement provisions. A home care organization that operates in violation of the law may be subject to fines or licensure revocation. The department may impose a fine of up to nine hundred per violation per day for each violation. It is a misdemeanor for a person to falsely represent himself or herself as a home care aide applicant or registered home care aide. Anyone convicted of a misdemeanor for violating any provision of the law will be punished by a fine up to one thousand dollars or imprisonment in a county jail for a period not to exceed 18 days, or both.

The law becomes effective January 1, 2015. It is available here:  http://www.leginfo.ca.gov/pub/13-14/bill/asm/ab_1201-1250/ab_1217_bill_20130920_enrolled.pdf