Caregiver Agencies Must Comply with Home Care Services Consumer Protection Act or Cease Operation
Health & Safety Code Sections 1796.10- 1796.63 Mandate
Major Changes in the Caregiver Industry
A strict set of new laws, effective January 1, 2016, requires the registration and licensing of home health care providers through a newly created agency — the Home Care Services Bureau (Bureau) – and the qualification and registration of all of their in-home caregivers. The state is also directing providers that their caregivers (“home care aides”) must all be employees and not independent contractors.
While the required initiation of the licensing process on or before December 31, 2015 is fairly simple – and actual licensing will not be mandatory until July 1, 2016 — the applicable operating standards will require many home care providers to profoundly change the way they do business.
Licensing Now Required to Promote and Operate as a Home Care Business: The 2013 Home Care Services Consumer Protection Act (HCSCPA) , AB 1217, created sections 1796.10- 1796.63 of the Health and Safety Code. The HCSCPA requires all California home care organizations (HCOs) to be licensed and also to have all of their caregivers – referred to in the law as “home care aides” (HCAs) – undergo successful background checks and register with the state.
The California Department of Social Services (CDSS) has created a new agency, the Home Care Services Bureau (Bureau), which will work with the Caregiver Background Check Bureau (CBCB) to implement and enforce the law.
The HCSPA defines “home care services” to include the typical services provided by caregivers, referred to as “personal attendants” under California’s Wage Order 15, in assisting persons who require companionship and help with functions of every-day life because of advanced age or physical or mental disability.
Section 1796.35 provides that any person or organization that fails to register and gain licensing as an HCO may not represent himself, herself or itself to be a home care organization by name, advertising, soliciting, or any “other” presentation to the public or in connection with providing home care services and also may not use “home care organization,” “home care,” or “in-home care” or any combination of such terms in its name.
New Statewide Registry of Qualified Caregivers (“Home Care Aides”): The Bureau will establish a registry that lists all applicants who have met the requirements to be registered. Registration requires: background examination, including submission of fingerprints, a declaration regarding prior criminal convictions, evidence that the home care aide can comply with the requirements of the law and is of “reputable and responsible character,” disclosure of any prior revocation or disciplinary action against the home care aide applicant, and a signed statement that the applicant has read and understood both the HCSCPA and other rules and regulations enacted under that statute.
The California Department of Justice will use fingerprints supplied by the applicant to conduct a background check. A person is ineligible to be listed on the registry if the person “has been convicted of a crime, other than a minor traffic infraction” without an exemption issued by the Director of the state Department of Social Services. If a person is notified that he/she is ineligible, the person may submit an exemption request to the Bureau so long as none of the crimes are ineligible for exemption.
All home care aides employed by HCOs are required to register. Individuals who are hired directly by patients to provide such services independently and not through an HCO have the option of applying personally for listing on the registry. However, they are not required to do so and may be hired directly by one or more private persons without registering.
Specific Registration and Licensing Requirements for Home Care Organizations: To receive a license, an HCO must provide proof of general and professional liability insurance at a minimum of $1 million per occurrence and $3 million in the aggregate, a valid workers’ compensation policy, and a complete list of its home care aides, along with proof that they have registered with the Bureau. In addition, individual owners of HCOs, and any person who owns more than 10 percent of an entity such as a corporation or LLC that runs an HCO will have to submit the same information as home care aides and consent to a background check.
Registration of HCOs and HCAs will expire every two years, requiring a new application for registration be made. The cost to put in an application for HCA registration is $25.00. For an HCO, the application fee is $5,165.00.
The statute also establishes operating requirements for an HCO once it is licensed: (1) posting its license so that it is visible to clients and home care aides; (2) maintaining its workers’ compensation policy; (3) maintaining an employee dishonesty bond, including third-party coverage, with minimum limits of $10,000; and (4) reporting any suspected or known adult abuser. The HCO must also have on file valid TB tests showing an absence of active TB for all HCAs taken within the time period of 90 days before to seven days after employment and fingerprints. It must notify the Bureau if the person is no longer employed by that HCO. The HCAs are required to have at least five hours of entry-level training prior to being with clients and five hours of annual training thereafter.
The HCSCPA provides for a fine of $900/day for any HCO that is in violation of the statute from the date the violation is verified to the date it is corrected or the license is suspended or revoked. It also makes it a misdemeanor to falsely represent oneself as a registered home care aide or applicant for such status. Violating this statute or willfully or repeatedly violating any of the rules or regulations under the statute is also a misdemeanor, subject to 180 days in the county jail and a $1,000 fine.
The state has issued an FAQ with answers to many questions concerning the HCSCPA. One of the FAQs states that HCAs hired by HCOs may not be independent contractors as “the statute requires the Home Care Organization to direct the actions of an Affiliated Home Care Aide with requirements such as TB testing, training, background check and registration.” This indicates that the Bureau will require all such HCAs hired by HCOs to be employees. This of course will require an HCO’s compliance with all wage laws, including such things as minimum wage and overtime.
Registration Procedure is Relatively Simple: By now, the reader is probably asking whether there is any good news for HCOs. The answer is yes. The only action required by December 31, 2015 is submission with the Bureau of a form HCS 200A, “Intent to Apply for a Home Care Organization License.” An HCO will then have until March 1, 2016 to file its formal (and simple) application (form HCS 200) and pay the fee. See Home Care Services website. An HCO can then continue operating even before its license is issued until July 1, 2015. If an HCO does not submit its Intent to Apply for a license by December 31, 2015, it may not continue operations. This would trigger the possibility of the $900/day fine and misdemeanor charges.
Thus, a caregiver business must promptly determine its course of action. If it intends to apply and meet all standards to obtain the required license by July 1, 2016, it must file the above-required notice of intention by December 31, 2015.
Our office can help company owners and managers better understand these fast-approaching changes in the law and a business’s options to deal with them. Contact Tim Bowles, Cindy Bamforth, or Helena Kobrin for more information.
Helena Kobrin, January 19, 2016