641-5881 1 Date: 10-10-06 Title: Nurse Registries

CALIFORNIA ASSOCIATION FOR HEALTH CARE SERVICES AT HOME Phone: (916) 641-5795 © Fax: (916) 641-5881 © www.cahsah.org

Date: 10-10-06 Title: Nurse Registries, Employment Agencies and Domestic Agencies

The information included in this paper is provided as general information only. This information should not be considered complete or dispositive guidance for legal or regulatory compliance. The specific application of laws and regulations to an organization requires a careful consideration of all the relevant facts and circumstances and may require assistance of competent legal counsel.

A Nurse’s registry means the assignment of a nurse, as a private duty, self-employed, licensed registered nurse, licensed vocational nurse, or practical nurse to render service to a patient under the direction or supervision of a physician or surgeon registered to practice in this state. Specific criteria for a nurses’ registry are set forth in Section 1812.524 of Civil Code. An entity, which makes or plans to make referrals for nurses’ employment other than private duty nursing is an employment agency. Private duty nurse means a “self-employed nurse rendering service in the care of either a physically or mentally ill patient under the direction of a physician or a surgeon, but who is paid by either the patient or the designated agent of the patient and who accepts the responsibilities of a self-employed private contractor.” If an entity does not meet the conditions provided in this Section 1812.524 of Civil Code, then they are not a nurses’ registry and are an employment agency. Besides services rendered (private duty nursing), the next biggest difference between the employment agency and the nurse registry is that the nurse is self-employed and is paid either by the patient or an agent of the patient and is also a self-employed independent contractor. A violation of the requirement is a misdemeanor.

Requirements to be a Nurses’ Registry: To be a nurse’s registry, the registry must have or provide the following items.

1. Surety Bond of $3,000 (Civil Code, Section 1812.525)

2. Contract with the nurse with specific requirements for the contract. (Civil Code, Section 1812.526)

3. A copy of the registry’s fee schedule and payment terms to any nurse from whom a fee or deposit is to be received, prior to the nurse being interviewed by the registry. The maximum fee shall be fixed and shall include the charges of every kind rendered in each case or transaction by the nurse. Changes of the schedule are allowed, but are not effective until posted for seven days in a conspicuous place. A copy of the fee schedule and payment terms shall be posted in a conspicuous place, with the effective date, and in a standard font. A copy of each fee schedule shall be kept on file for one year. (Civil Code Section 1812.527)

4. The nurses’ registry must verify the training and experience on the nurse(s) application and require the nurse to show the license and make a notation on the application that the license has been inspected and the date of the expiration of the license when interviewing the licensed nurse. (Civil Code Section 1812.528)

5. M aintain a log sheet and records required by Civil Code Section 1812.529, which includes the date and hour of the order for the private duty nurse, date and hour giving an assignment to the private duty nurse by the registry, the name of the assigned nurse, the patient and the address the nurse is assigned to, the name of the attending physician, the date the assignment starts, the period of service for each assignment, the amount of the fee

1 CALIFORNIA ASSOCIATION FOR HEALTH CARE SERVICES AT HOME Phone: (916) 641-5795 © Fax: (916) 641-5881 © www.cahsah.org

for each assignment. The registry is required to keep the record for one year. (Civil Code Section 1812.59)

6. No nurses’ registry shall accept a registration fee of any kind. (Civil Code Section 1812.530)

7. No nurses’ registry shall divide fees with any physician and surgeon, nurse, hospital, patient or any agent or employee of any of these (Civil Code Section 1812.531)

8. If the nurse does not get an assignment or the nurse does not get paid for an assignment that the nurses’ registry collected a fee or expense from the nurse for, the nurse can demand to be paid. If re-payment is made within 48 hours after demand, the nurses’ registry must pay the nurse an additional amount equal to the fee. (Civil Code Section 1812.532)

9. Advertisements of the nurses registry shall not be false or misleading about the services provided in the nurses’ registry, and shall contain the following information: name of the nurses’ registry and one of the following: street address of registry or telephone number. (Civil Code Section 1812.533 (a) – ((3), (c))

10. A nurses’ registry cannot represent its self to be a home health agency, and is required to provide written disclosure to each individual receiving nursing services that it does not perform the services of a home health agency and describing that it is a nurses’ registry only and that complaints against licensed personnel shall be brought to the local district attorney and the Department of Consumer Affairs. The address and telephone number of each agency and board where complaints are submitted must be provided to all patients prior to the time they are under the care of any nursing services personnel. (Civil Code Section 1812.533 (4))

Summary: A nurses’ registry is very specific. The client seeking the service through the registry pays the nurse directly. The nurse pays the nursing registry for the referral. Therefore, the nurse is an independent contractor and not an employee of the registry. However, there are businesses, acting as nurses’ registries, but are actually something else (e.g. employment agencies, home health agencies or home care aide organizations.) Because the law is confusing, there are no licensure requirements, and little enforcement, it would be easy for nursing registries to be created and be operating illegally without the knowledge of the owner of the registry. At one time, nurses’ registries were in Business and Professions Code and were regulated by the Consumer Affairs Agency. Now they are in Civil Code and enforced by county district attorneys. There is no certification or licensure requirement for nurses’ registries.

Employment Agency The guidelines for employment agencies in California can be found in Civil Code Sections 1812.00 through 1812.502 and Sections 1812.503 through 1812.5059. In contrast to a nurses’ registry, an employment agency procures employment for others or employees for employers (Civil Code Section 1812.501 (A)). Employment agencies providing domestic services are called domestic agencies. Domestic agencies are defined as any employment agency that provides employment by placement of domestic help in private homes and are discussed in Section 1812.5095 of the Civil Code.

2 CALIFORNIA ASSOCIATION FOR HEALTH CARE SERVICES AT HOME Phone: (916) 641-5795 © Fax: (916) 641-5881 © www.cahsah.org

Exceptions to Employment Agency Law (Civil Code Section 1812.502) Entities listed below are not considered employment agencies and do not have to comply with the law regarding employment agencies.

1. Non-profit corporations providing job counseling, civic betterment, economic adjustment (Section 1812.502 (b)) 2. Labor organizations as defined (Section 1812.502 (d)) 3. Nursing schools, business schools, vocational schools (Section 1812.502 (e)) 4. Job listing service (Section 1812.502 (1) (f) - (3) (D))

Requirements to be an Employment Agency To be an employment agency, the agency must have or provide the following items.

1. Surety bond of $3,000 (Civil Code Section 1812.503)

2. W ritten contract before the employment agency accepts any fee or deposit with specific information required in the contract, including but not limited to: biographical information of agency and job seeker, amount of fee to be charged, if any labor trouble exists at place of employment, terms and conditions agreed upon, and in 10-point boldfaced capitals or italic type the “Right to Refund, which is stated specifically in the Section 1812.504 in Civil Code. See entire section when creating your contract template. (Civil Code Section 1812.504)

3. Copy of the fee schedule and payment terms, with requirements for maximum fees, posting and record keeping. Details of this component are included in Civil Code Section 1812.505.

4. Fee refund for jobseekers who do not obtain employment, or become a permanent employee (working greater than 90 days). Includes rules about fee refunding in various work circumstances. (Civil Code Section 1812.506)

5. Job order in writing or orally. Employment agency must have a job order to collect a fee from the job seeker. The job order must contain specific information as specified in Civil Code Section 1812.507.

6. Advertisements of the employment agency shall not be false or misleading about the services provided in the nurses’ registry, and shall contain the following information: name of the employment agency and one of the following: street address of registry or telephone number. (Civil Code Section 1812.508). Specifically mentions that the advertisement should not represent itself as or performing the services of a home health agency. In addition, any individuals who receive nursing services in their places of residence should be given a written letter that it does not perform the services of a home health agency. It directs all complaints for non-licensed or certified personnel should be submitted to the local district attorney, complaints for certified nursing assistants and certified home health aides to the local district attorney and the Department of Health Services, and complaints against licensed personnel to the local district attorney and the Department of Consumer Affairs. (Civil Code Section 1812.508)

7. Other M iscellaneous Requirements: No minors can be employed by an employment agency. Employment agencies must notify the jobseeker if a union contract exists, or if they send a job seeker to a location where there is labor trouble. Personal interviews and reasonable 3 CALIFORNIA ASSOCIATION FOR HEALTH CARE SERVICES AT HOME Phone: (916) 641-5795 © Fax: (916) 641-5881 © www.cahsah.org

attempts to verify experience or training is required for babysitting, domestic, or employment agency that procures babysitting or domestic help for employers requires a personal interview and making a reasonable effort to verify the experience or training of the individual. Requires employment agencies that procure employment for long-term health care employers (as defined in Section 1814 of Health and Safety Code) to do the following: conduct a persona interview of the individual, verify experience, training and references of the individual, and verify that the individual is in good standing with the appropriate licensing or certification board, including verification of a criminal record clearance for employment agencies providing certified nurse assistants or licensed nursing staff as defined in Civil Code Section 1812.540. (Civil Code Section 1812.509). Long-term health care employers are defined in Section 1814 of Health and Safety Code and do not include home health agencies.

Employment Agencies and Child Care W orkers (Civil Code Section 1812.5093) Employment agencies that refer a childcare provider to an employer who is not required to be a licensed child dare care facility according to Section 1596.792 of the Health and Safety Code are only responsible for giving the prospective employer of the prospective childcare provider the tools in Section 1812.5093 of Civil Code to make sure that the prospective childcare provider is a trustline provider. To be a child care provider in California requires that the childcare provider be a trustline provider. A trustline provider means a person who is 18 years or older who provides childcare. A trustline provider is required to be fingerprinted for a state summary of criminal history information and the child abuse index, and, if applicable, the records of the Federal Bureau of Investigation. The department shall grant the trustline application if the department finds that the trustline applicant has NOT been convicted of a crime, other than a minor traffic violation. The Department of Social Services shall enter that finding in the provider's record in the trustline registry and shall notify the provider of the action. This provider shall be known as a "registered trustline child care provider."

Domestic Agency: Employment Agencies Providing Domestic Employment (Civil Code Section 1812.5095)

Section 1812.5095 of the Civil Code separates employment agencies providing domestic employment from other employment agencies. It refers to agencies providing domestic employment as a domestic agency. This section provides insight to CAHSAH members on the legal differences between a home care aide organization and an employment agency that specializes in placing domestic workers (like home health aides and personal care attendants). A domestic agency means any agency that provides or attempts to provide employment by placement of domestic help in a private home (Civil Code Section 1812.501 (h)) or the procurement or attempt to procure babysitting or domestic employment for others or domestics or babysitters for others (Civil Code Section 1812.501 (3)). Civil Code Section 1812.5095 specifically defines the requirements to be considered a domestic agency.

Requirements for a Domestic Agency To be a domestic agency, the agency must have or provide the following items.

1. The fee charged by an employment agency for its services shall be reasonable, negotiable and based on a fixed percentage of costs. (Civil Code Section 1812.5095 (c))

2. A domestic agency shall inform the worker before signing the contract (see #7 below) that the worker may be obligated to get business permits or licenses, where required by state or local law ordinance, or regulation, and that he or she is not eligible for unemployment 4 CALIFORNIA ASSOCIATION FOR HEALTH CARE SERVICES AT HOME Phone: (916) 641-5795 © Fax: (916) 641-5881 © www.cahsah.org

insurance, state disability insurance, social security, or workers’ compensation benefits through the agency, and that, if self-employed, he or she is required to pay self- employment tax, state tax, and federal income taxes. (Civil Code Section 1812.5095 (d))

3. Verify legal immigration status prior to providing referral services. (Civil Code Section 1812.5095 (e)).

4. Orally communicate the disclosure specifically set forth in 1812.5095 (f) to the employer before providing the referral that the agency is not the employer of the domestic worker, and a 10-point font letter specifically set forth in 1812.5095 (f) mailed within three days of referral of the domestic worker indicating that if they direct or control the manner by which the domestic worker performs the work they may have employer responsibilities, including employment taxes, workers’ compensation, etc. (Civil Code Section 1812.5095 (f))

5. An employment agency referring a domestic worker cannot specify if the worker is self- employed or an independent contractor. (Civil Code Section 1812.5095 (g))

6. All advertisements must contain an at least 6-point font statement specifically set forth in 1812.5095 (h) that the agency is a referral agency. Any violation to mislead the public on the nature of services provided by an employment agency is considered unfair competition and has a civil penalty not to exceed $2,500 for each violation. (Civil Code Section 1812.5095 (h))

7. A Domestic Agency, which provides employment by placement of domestic employee in private homes for a fee by the domestic worker seeking employment, is not an employer if the following factors characterize the nature of the relationship between the employment agency and the domestic worker: (Civil Code Section 1812.5095 (a) – (9))

1) A signed contract or agreement between the employment agency and the domestic worker that contains, at a minimum, provisions for all of the following:

a) Employment agency shall assist the domestic worker in securing work. b) How the employment agency’s referral fee shall be paid. c) The domestic worker is free to sign an agreement with other employment agencies and to perform domestic work for persons not referred by the employment agency.

2) The domestic worker informs the employment agency of any restrictions on hours, location, conditions, or type of work he or she will or will not accept, and can accept or reject any opportunity from the agency.

3) The domestic worker is free to renegotiate the amount of pay for work with the person hiring him or her.

4) The domestic worker can receive no training from the employment agency with respect to performance of the domestic work. However, an agency can provide voluntary orientation session regarding the administrative relationship between the worker and the agency.

5) The domestic worker performs work without any direction, control, or supervision when it takes any of the following actions. Specifies specific interactions between the agency and the domestic worker that are not considered control.

6) The employment agency does not provide tools, supplies, or equipment necessary to perform the domestic work.

7) The domestic worker is not obligated to pay the employment agency’s referral fee, and the employment agency is not obligated to pay the domestic worker if the person receiving the services fails or refuses to pay.

8) Payments for domestic services are made directly to either the domestic worker or to the employment agency. Payments made directly to the agency are put in a trust fund until payment can be made to the worker.

9) The domestic worker or the recipient of the services can only do termination of services. However, a domestic agency can decline to make additional referrals to a particular domestic worker, and the domestic worker can decline to take a referral.