BILL NUMBER: AB 459 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Cook
FEBRUARY 20, 2007
An act to amend Section 12301.6 of the Welfare and Institutions
Code, relating to in-home supportive services.
LEGISLATIVE COUNSEL'S DIGEST
AB 459, as introduced, Cook. In-home supportive services: criminal
background checks.
Existing law provides for the In-Home Supportive Services (IHSS)
program, under which qualified aged, blind, and disabled persons
receive services enabling them to remain in their own homes. Existing
law permits services to be provided under the IHSS program either
through the employment of individual providers, a contract between
the county and an entity for the provision of services, the creation
by the county of a public authority, or a contract between the county
and a nonprofit consortium. Under existing law, the functions of a
nonprofit consortium contracting with the county to operate the
program, or a public authority established for this purpose, include
investigating the qualifications and background of potential
personnel.
This bill would authorize the investigation of certain potential
personnel by a nonprofit consortium or public authority to include
criminal background checks conducted by the Department of Justice or,
in certain circumstances, by an investigative consumer reporting
agency, upon the request of the nonprofit consortium or public
authority, and upon written authorization by the potential personnel.
The bill would authorize a nonprofit consortium or a public
authority to charge a fee to a provider, potential personnel, or a
recipient to cover any cost related to administering requirements
with respect to an investigation, or the costs to certain entities
for processing a criminal background check, under these provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 12301.6 of the Welfare and Institutions Code is
amended to read:
12301.6. (a) Notwithstanding Sections 12302 and 12302.1, a county
board of supervisors may, at its option, elect to do either of the
following:
(1) Contract with a nonprofit consortium to provide for the
delivery of in-home supportive services.
(2) Establish, by ordinance, a public authority to provide for the
delivery of in-home supportive services.
(b) (1) To the extent that a county elects to establish a public
authority pursuant to paragraph (2) of subdivision (a), the enabling
ordinance shall specify the membership of the governing body of the
public authority, the qualifications for individual members, the
manner of appointment, selection, or removal of members, how long
they shall serve, and other matters as the board of supervisors deems
necessary for the operation of the public authority.
(2) A public authority established pursuant to paragraph (2) of
subdivision (a) shall be both of the following:
(A) An entity separate from the county, and shall be required to
file the statement required by Section 53051 of the Government Code.
(B) A corporate public body, exercising public and essential
governmental functions and that has all powers necessary or
convenient to carry out the delivery of in-home supportive services,
including the power to contract for services pursuant to Sections
12302 and 12302.1 and that makes or provides for direct payment to a
provider chosen by the recipient for the purchase of services
pursuant to Sections 12302 and 12302.2. Employees of the public
authority shall not be employees of the county for any purpose.
(3) (A) As an alternative, the enabling ordinance may designate
the board of supervisors as the governing body of the public
authority.
(B) Any enabling ordinance that designates the board of
supervisors as the governing body of the public authority shall also
specify that no fewer than 50 percent of the membership of the
advisory committee shall be individuals who are current or past users
of personal assistance services paid for through public or private
funds or recipients of services under this article.
(C) If the enabling ordinance designates the board of supervisors
as the governing body of the public authority, it shall also require
the appointment of an advisory committee of not more than 11
individuals who shall be designated in accordance with subparagraph
(B).
(D) Prior to making designations of committee members pursuant to
subparagraph (C), or governing body members in accordance with
paragraph (4), the board of supervisors shall solicit recommendations
of qualified members of either the governing body of the public
authority or of any advisory committee through a fair and open
process that includes the provision of reasonable, written notice to,
and a reasonable response time by, members of the general public and
interested persons and organizations.
(4) If the enabling ordinance does not designate the board of
supervisors as the governing body of the public authority, the
enabling ordinance shall require the membership of the governing body
to meet the requirements of subparagraph (B) of paragraph (3).
(c) (1) Any public authority created pursuant to this section
shall be deemed to be the employer of in-home supportive services
personnel referred to recipients under paragraph (3) of subdivision
(e) within the meaning of Chapter 10 (commencing with Section 3500)
of Division 4 of Title 1 of the Government Code. Recipients shall
retain the right to hire, fire, and supervise the work of any in-home
supportive services personnel providing services to them.
(2) (A) Any nonprofit consortium contracting with a county
pursuant to this section shall be deemed to be the employer of
in-home supportive services personnel referred to recipients pursuant
to paragraph (3) of subdivision (e) for the purposes of collective
bargaining over wages, hours, and other terms and conditions of
employment.
(B) Recipients shall retain the right to hire, fire, and supervise
the work of any in-home supportive services personnel providing
services for them.
(d) A public authority established pursuant to this section or a
nonprofit consortium contracting with a county pursuant to this
section, when providing for the delivery of services under this
article by contract in accordance with Sections 12302 and 12302.1 or
by direct payment to a provider chosen by a recipient in accordance
with Sections 12302 and 12302.2, shall comply with and be subject to,
all statutory and regulatory provisions applicable to the respective
delivery mode.
(e) Any nonprofit consortium contracting with a county pursuant to
this section or any public authority established pursuant to this
section shall provide for all of the following functions under this
article, but shall not be limited to those functions:
(1) The provision of assistance to recipients in finding in-home
supportive services personnel through the establishment of a
registry.
(2) Investigation of the qualifications and background of
potential personnel. The investigation may, with respect to any
prospective registry applicant who is not employed with the nonprofit
consortium or public authority until January 1, 2008, or
thereafter include criminal background checks requested by the
nonprofit consortium or public authority and conducted by either the
Department of Justice or an investigative consumer reporting agency,
for those public authorities or nonprofit consortia using the
agencies on January 1, 2008. Any nonprofit consortium or
public authority that obtains a criminal background check
on potential personnel under this paragraph shall secure from that
person a signed authorization form prior to obtaining criminal
background information.
(A) (i) An investigative consumer reporting agency used by a
public authority or nonprofit consortium for purposes of this section
shall operate under and in compliance with Title 1.6A (commencing
with Section 1786) of Part 4 of Division 3 of the Civil Code.
(ii) The investigative consumer reporting agency shall redact
from its reports all personal information, other than out-of-state
criminal records, that would not be contained in a similar report
prepared by the Department of Justice.
(B) A nonprofit consortium or public authority may charge a fee to
potential personnel, providers, or service recipients to cover the
costs of administering this paragraph. Nothing in this paragraph
shall be construed to prohibit the Department of Justice from
assessing a fee pursuant to Section 11105 or 11123 of the Penal Code
to cover the cost of furnishing summary criminal history information.
(3) Establishment of a referral system under which in-home
supportive services personnel shall be referred to recipients.
(4) Providing for training for providers and recipients.
(5) Performing any other functions related to the delivery of
in-home supportive services.
(6) Ensuring that the requirements of the personal care option
pursuant to Subchapter 19 (commencing with Section 1396) of Chapter 7
of Title 42 of the United States Code are met.
(f) (1) Any nonprofit consortium contracting with a county
pursuant to this section or any public authority created pursuant to
this section shall be deemed not to be the employer of in-home
supportive services personnel referred to recipients under this
section for purposes of liability due to the negligence or
intentional torts of the in-home supportive services personnel.
(2) In no case shall a nonprofit consortium contracting with a
county pursuant to this section or any public authority created
pursuant to this section be held liable for action or omission of any
in-home supportive services personnel whom the nonprofit consortium
or public authority did not list on its registry or otherwise refer
to a recipient.
(3) Counties and the state shall be immune from any liability
resulting from their implementation of this section in the
administration of the In-Home Supportive Services Program
program . Any obligation of the public authority
or consortium pursuant to this section, whether statutory,
contractual, or otherwise, shall be the obligation solely of the
public authority or nonprofit consortium, and shall not be the
obligation of the county or state.
(g) Any nonprofit consortium contracting with a county pursuant to
this section shall ensure that it has a governing body that complies
with the requirements of subparagraph (B) of paragraph (3) of
subdivision (b) or an advisory committee that complies with
subparagraphs (B) and (C) of paragraph (3) of subdivision (b).
(h) Recipients of services under this section may elect to receive
services from in-home supportive services personnel who are not
referred to them by the public authority or nonprofit consortium.
Those personnel shall be referred to the public authority or
nonprofit consortium for the purposes of wages, benefits, and other
terms and conditions of employment.
(i) (1) Nothing in this section shall be construed to affect the
state's responsibility with respect to the state payroll system,
unemployment insurance, or workers' compensation and other provisions
of Section 12302.2 for providers of in-home supportive services.
(2) The Controller shall make any deductions from the wages of
in-home supportive services personnel, who are employees of a public
authority pursuant to paragraph (1) of subdivision (c), that are
agreed to by that public authority in collective bargaining with the
designated representative of the in-home supportive services
personnel pursuant to Chapter 10 (commencing with Section 3500) of
Division 4 of Title 1 of the Government Code and transfer the
deducted funds as directed in that agreement.
(3) Any county that elects to provide in-home supportive services
pursuant to this section shall be responsible for any increased costs
to the in-home supportive services case management, information, and
payrolling system attributable to that election. The department
shall collaborate with any county that elects to provide in-home
supportive services pursuant to this section prior to implementing
the amount of financial obligation for which the county shall be
responsible.
(j) To the extent permitted by federal law, personal care option
funds, obtained pursuant to Subchapter 19 (commencing with Section
1396) of Chapter 7 of Title 42 of the United States Code, along with
matching funds using the state and county sharing ratio established
in subdivision (c) of Section 12306, or any other funds that are
obtained pursuant to Subchapter 19 (commencing with Section 1396) of
Chapter 7 of Title 42 of the United States Code, may be used to
establish and operate an entity authorized by this section.
(k) Notwithstanding any other provision of law, the county, in
exercising its option to establish a public authority, shall not be
subject to competitive bidding requirements. However, contracts
entered into by either the county, a public authority, or a nonprofit
consortium pursuant to this section shall be subject to competitive
bidding as otherwise required by law.
() (1) The department may adopt regulations implementing this
section as emergency regulations in accordance with Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code. For the purposes of the Administrative
Procedure Act, the adoption of the regulations shall be deemed an
emergency and necessary for the immediate preservation of the public
peace, health and safety, or general welfare. Notwithstanding Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code, these emergency regulations shall not be
subject to the review and approval of the Office of Administrative
Law.
(2) Notwithstanding subdivision (h) of Section 11364.1 and Section
11349.6 of the Government Code, the department shall transmit these
regulations directly to the Secretary of State for filing. The
regulations shall become effective immediately upon filing by the
Secretary of State.
(3) Except as otherwise provided for by Section 10554, the Office
of Administrative Law shall provide for the printing and publication
of these regulations in the California Code of Regulations. Emergency
regulations adopted pursuant to this subdivision shall remain in
effect for no more than 180 days.
(m) (1) In the event that a county elects to form a nonprofit
consortium or public authority pursuant to subdivision (a) before the
State Department of Health Care Services has obtained all
necessary federal approvals pursuant to paragraph (3) of subdivision
(j) of Section 14132.95, all of the following shall apply:
(A) Subdivision (c) (d) shall apply
only to those matters that do not require federal approval.
(B) The second sentence of subdivision (g)
(h) shall not be operative.
(C) The nonprofit consortium or public authority shall not provide
services other than those specified in paragraphs (1), (2), (3),
(4), and (5) of subdivision (d) (e) .
(2) Paragraph (1) shall become inoperative when the State
Department of Health Care Services has obtained
all necessary federal approvals pursuant to paragraph (3) of
subdivision (j) of Section 14132.95.
(n) (1) One year after the effective date of the first approval by
the department granted to the first public authority, the Bureau of
State Audits shall commission a study to review the performance of
that public authority.
(2) The study shall be submitted to the Legislature and the
Governor not later than two years after the effective date of the
approval specified in subdivision (a). The study shall give special
attention to the health and welfare of the recipients under the
public authority, including the degree to which all required services
have been delivered, out-of-home placement rates, prompt response to
recipient complaints, and any other issue the director deems
relevant.
(3) The report shall make recommendations to the Legislature and
the Governor for any changes to this section that will further ensure
the well-being of recipients and the most efficient delivery of
required services.
(o) Commencing July 1, 1997, the department shall provide annual
reports to the appropriate fiscal and policy committees of the
Legislature on the efficacy of the implementation of this section,
and shall include an assessment of the quality of care provided
pursuant to this section.