While In-Home Care Organizations (HCOs) have had few laws and regulations over the years, they have become increasingly regulated the state of California with the implementation of the Home Care Services Consumer Protection Act of 2013 (AB 1217). In response to concerns about patient safety and security, the state has enacted these regulations and laws to impose safety checks and training. The act also addresses concerns about the abuse of HCO workers and delineates the standards for companies employing caregivers. While these reforms are necessary and appropriate, they have increased the price of home care services. Here's why:
Home Care Services Consumer Protection Act
The most significant reform is the Home Care Services Consumer Protection Act, which was signed into law on October 13,2013. The act covers "home care services," which are defined as non-medical services and assistance provided by a registered Home Care Assistant (HCA) to a client who, because of advanced age or physical or mental disability needs assistance in activities of daily living, allowing the client to stay in their residence.
These services include assistance in the following areas:
making telephone calls
shopping for personal care items or groceries
What is included in the act?
The legislation requires the following of HCO agencies:
List aids in an online registry
Conduct background checks on workers
Obtain finger prints of all aides
Provide 5 hours of training for new hires
Obtain a license from the state certifying their compliance with basic standards
Every person who owns 10% or more interest in a CA home care company must undergo a criminal background check through the Department of Justice
Owners cannot have any felony convictions
Owners must procure a separate dishonesty bond
Every owner must implement a company policy forbidding the company and its staff from hiring caregivers that are not currently registered with CA’s Home Care Services Bureau (HCSB)
The commencement date of the law was extended to January 1, 2016. It provides that the California Department of Social Services (CDSS) will regulate HCOs and provide background checks of affiliated Home Care Aides (HCAs) and independent HCAs who wish to be listed on the Home Care Services (HCS) Registry. Currently CDSS is implementing regulations, including the formation of the Home Care Services Bureau (HCSB), which will oversee the licensing and oversight of the HCOs and the Caregiver Background Check Bureau (CBCB), which will maintain the HCS Registry.
Penalties upon failure to follow the act include:
$900 fine per day a HCO is not licensed by the Department of Social Services
Potential cease and desist order (remains in effect until the individual/entity has obtained a license)
Potential imposition of a civil penalty or...
Potential civil action against the individual/entity
If CDSS finds that the individual has been convicted of a crime (other than a minor traffic violation), the individual cannot work for/be present in any community care facility unless they receive a criminal record exemption from the Community Care Licensing Division, Caregiver Background Check Bureau.
California's In Home Supportive Services (IHSS) Program
California recently established the In Home Supportive Services (IHSS) program, a Medi-Cal program providing payment to providers who are serving aged and/or disabled patients who are without means to pay for services.
People who wish to become a IHSS provider must:
Provide a U.S. government-issued picture identification
Provide an original Social Security card
Complete the Provider Enrollment Form (SOC 426)
Obtain finger prints
Submit a criminal background check obtained by the California Department of Justice (DOJ)
Domestic Worker Bill of Rights (2015):
Department of Labor Wage & Hour Rules
The Domestic Worker Bill of Rights (AB 241) took effect on January 1, 2015. It regulates the number of consecutive hours for home health care workers and requires overtime pay for long work shifts. Upon going into effect, California became one of 16 states with some form of overtime requirement for home health workers. Personal attendants covered by this law are now entitled to overtime pay at 1.5 times their regular rate of pay for any hours worked in excess of 9 hours in a day or in excess of 45 hours in a single week.
The new law calls for the formation of an evaluation committee to review and analyze the effectiveness of overtime provision over the next 3 years. The California Department of Industrial Relations will review the law.
Now, domestic workers are entitled to the minimum wage (with the exception of babysitters under the age of 18 and the employer's parent, spouse, or child). The Labor Commissioner enforces the California minimum wage and may enforce local minimum wages if the work is performed in a city and/or county that has a higher minimum wage ordinance.
If a worker's employer discriminates or retaliates against them in any manner (such as unjustifiable termination or giving fewer hours), workers can file a discrimination/retaliation complaint with the Labor Commissioner's Office and/or file a lawsuit against the employer in court.
Summary: Action Items
What does this mean for you if you operate a Home Care Organization?
Institute security check program with all home aides working for your organization, including background check and finger printing
Obtain an exemption or terminate those home aides that fail the background check
Institute a training program for all home aides working for your organization
Review wage and hour policies
Ensure that your organization has all employee manuals with the proper overtime and minimum wage rules
Department of Social Services Online Resources
Frequently Asked Questions (FAQs)
Who needs to register under the Home Care Law?
Under the Home Care Services Consumer Protection Act (HCSCPA) both unlicensed aides who provide in-home care (aka "private duty") and the registries or companies these aides work for will need to register with the California Department of Social Services (DSS), Community Care Licensing Division's (CCLD) new Home Care Services Bureau (HCSB) and Caregiver Background Check Bureau (CBCB). The Home Care Services Registry (HCS) will be the official online resource made available to the public by the DSS to verify an aide's name, registration status, registration expiration date, and any affiliated HCO.
What are the entity structure requirements for a HCO?
A HCO may be a sole proprietorship, partnership, corporation or LLC. Out-of-state entities may operate HCOs, as long as they file the appropriate qualification documents to do business with the Secretary of State. In addition to the document required for licensure, HCOs must meet certain insurance requirements, including workers compensation coverage, an employee dishonesty bond, including third-party coverage, with a minimum of $10,000 and general and professional liability insurance policy in the amount of at least $1,000,000 per occurrence and $3,000,000 in the aggregate.
Can we operate if we submit our applications but haven't had the license issued by January 1, 2016?
Yes, as long as applications are submitted by January 1, 2016, HCOs and HCAs can continue to operate as long as they comply with all legal requirements (licensure/registration) by that date.
What are the personal requirements for a HCA?
To qualify as a HCA, a person must:
be at least 18 years old
undergo criminal background clearance
testing for tuberculosis (TB)
complete minimum training requirements (at least 5 hours of initial training prior to client contact, 2 hours of orientation regarding the caregiver role and terms of employment and 3 hours on infection control, emergency procedures, and First Aid certification; as well as 5 hours of annual training on client rights, client safety and needs; reporting, detecting and preventing abuse and neglect; and assisting with personal hygiene and other home care services)
HCOs must maintain training verification logs, TB and criminal record clearances, and signed statements from criminal record history.
If our business is already licensed as a home health agency, do we need to be licensed under the new law?
No, irrespective of whether they also provide private duty care, California Health and Safety Code Section 1796.17 exempts home health agencies from licensure under the new law. Certain other organizations that are already regulated are also exempt, such organizations that contract with CCLD Regional Centers provide services for individuals with developmental disabilities and receive funding from the Department of Developmental Services for more than 50% of their clients.
What is the difference between an affiliated and an independent home care aide (HCA)?
If an HCA works for a HCO, then he/she is "affiliated" and is contracted by clients through the HCO. If an HCA is independent, he/she can contract directly with clients.
"Laws and Regulations Specific to In Home Care Organizations in California" by Matt Kinley; CaliforniaHealthCareLaw.com
"Getting Ready for California Home Care Regulation" by Harry Nelson; NelsonHardiman.com