BILL NUMBER: AB 682 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 26, 2009
INTRODUCED BY Assembly Member Bonnie Lowenthal
FEBRUARY 26, 2009
An act to amend Section 12301.6 add and
repeal Section 12305.84 of the Welfare and Institutions Code,
relating to in-home supportive services.
LEGISLATIVE COUNSEL'S DIGEST
AB 682, as amended, Bonnie Lowenthal. In-Home Supportive Services
program: Case Management Information and Payroll System.
Fraud.
Existing law provides for the county-administered In-Home
Supportive Services (IHSS) Program, under which qualified aged,
blind, and disabled persons are provided with services in order to
permit them to remain in their own homes and avoid
institutionalization.
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 election by a county to contract with a nonprofit
consortium or establish a public authority for the provision of
in-home supportive services does not affect the state's
responsibility with respect to the state payroll system, unemployment
insurance, or workers' compensation and other specified provisions
of law relating to providers of in-home supportive services.
Under existing law, the State Department of Social Services is
responsible for procuring and implementing a Case Management
Information and Payroll System (CMIPS) for the In-Home Supportive
Services Program and Personal Care Services Program (IHSS/PCSP).
Existing law requires the CMIPS to satisfy certain criteria.
This bill would authorize an in-home supportive services provider,
in a county in which services are provided through a nonprofit
consortium or public authority, to request a duplicate warrant due to
a lost or stolen warrant within 2 days from the date the original
warrant should have been received, and would require a county to
request a duplicate warrant, but not earlier than 5 days from the
issue date of the warrant. The bill would require the department and
the Controller to respond expeditiously to reissue a lost or stolen
warrant, as specified.
By increasing the duties of counties administering the In-Home
Supportive Services Program, this bill would impose a state-mandated
local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Under existing law, the State Department of Social Services is
vested with state administrative authority over the IHSS program.
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.
Existing law provides for the Medi-Cal program, administered by
the State Department of Health Care Services, under which health care
services are provided to qualified low-income persons, including the
aged, blind, and disabled. These services include personal care
option services, which are provided as part of the IHSS program to
those Medi-Cal recipients eligible for IHSS benefits.
Existing law prohibits a person from providing or receiving
payment under the IHSS program if he or she has been convicted of
certain crimes for specified periods. Existing law imposes specified
responsibilities on the State Department of Social Services, State
Department of Health Care Services, and counties with regard to
identifying and investigating fraud within the IHSS program.
This bill would require the State Department of Health Care
Services, commencing January 1, 2010, to allocate an unspecified
number of personnel positions for purposes of evaluating the
implementation of the above-described provisions relating to IHSS
program fraud.
This bill would also require the State Department of Health Care
Services, in consultation with the State Department of Social
Services, counties and stakeholders, to produce and deliver a report
to the Legislature by December 31, 2011, that contains prescribed
information relating to fraud in the IHSS program.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) The Legislature finds and declares
all of the following:
(1) The In-Home Supportive Services (IHSS) program is one of the
fastest growing programs in the state, providing necessary in-home
care to over 400,000 seniors and people with disabilities.
(2) Due to increases in the population needing services,
particularly because of the "baby-boomer" population reaching
retirement age, the program will continue to grow.
(3) Wage and benefit increases also contribute to overall spending
in the program. However, in most instances wages are little more
than minimum wage and, while some health benefits may be available,
these benefits tend to be fewer than what would be provided in other
jobs. In addition, other common employment benefits, such as sick
leave, are not available to IHSS workers.
(4) Existing law contains provisions intended to combat fraud.
Evidence of fraud within the IHSS program is also believed to be very
low. Nonetheless, with such a large, growing program, it is
imperative that the state and all stakeholders involved adhere to a
zero-tolerance policy on fraud. Fraud has the potential to harm the
IHSS program by removing valuable resources.
(b) It is the intent of the Legislature, in enacting this act, to
determine the extent and type of fraud that may occur within the IHSS
program in order to evaluate the existing antifraud provisions of
the law and to make revisions as necessary to ensure that the IHSS
program carries out its mission of providing needed services to
seniors and people with disabilities.
SEC. 2. Section 12305.84 is added to the
Welfare and Institutions Code , to read:
12305.84. (a) Commencing January 1, 2010, the State Department of
Health Care Services shall dedicate __ personnel positions for
purposes of evaluating the implementation of Sections 12305.7,
12305.71, 12305.81, 12305.82, and 12305.83. The department may fill
these positions by using existing resources or it may add new
positions if an appropriation is provided by the Legislature for that
purpose.
(b) The State Department of Health Care Services, in consultation
with the department, counties, and stakeholders, including IHSS
consumers and providers, shall produce and deliver a report to the
Legislature by December 31, 2011. The report shall do all of the
following with respect to fraud:
(1) Identify the magnitude of IHSS fraud in terms of total dollars
inappropriately spent or removed from the program.
(2) Identify the magnitude of IHSS fraud in terms of the number of
consumers harmed or placed at risk of harm as a result of fraudulent
activity.
(3) Identify the number of people involved in fraud for each of
the following categories: IHSS providers, IHSS consumers, state
workers, county workers, and others. In the case of "others," the
report shall describe, with specificity, but without revealing
personal identifying information, the function of the persons
committing fraud.
(4) Provide recommendations as to the best means possible to
combat IHSS fraud, taking into account the magnitude of the problem
and the need to protect services for vulnerable populations.
(c) This section shall remain in effect only until January 1,
2012, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2012, deletes or extends
that date.
SEC. 3. If the report required by subdivision (b)
of Section 12305.84 of the Welfare and Institutions Code, as
contained in Section 2 of this act, is not delivered to the
Legislature by December 31, 2011, the repeal of Section 12305.84
shall not terminate the obligation of the department to prepare and
deliver the report.
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) (A) (i) The investigation of the qualifications and background
of potential personnel. The investigation may, with respect to any
prospective registry applicant who is not employed before January 1,
2008, include criminal background checks requested by the nonprofit
consortium or public authority and conducted by the Department of
Justice pursuant to Section 15660, for those public authorities or
nonprofit consortia using the agencies on January 1, 2008.
(ii) Upon notice from the Department of Justice notifying the
public authority or nonprofit consortium that the prospective
registry applicant has been convicted of a criminal offense specified
in Section 12305.81, the public authority or nonprofit consortium
shall deny the request to be placed on the registry for providing
supportive services to any recipient of the In-Home Supportive
Services program.
(B) If an applicant is rejected as a result of information
contained in the criminal background report, the applicant shall be
advised in writing of his or her right to request a copy of his or
her own criminal history record from the Department of Justice, as
provided in Article 5 (commencing with Section 11120) of Chapter 1 of
Title 1 of Part 4 of the Penal Code, to review the information for
accuracy and completeness. The applicant shall be advised that if,
upon review of his or her own criminal history record he or she finds
the information to be inaccurate or incomplete, the applicant shall
have the right to submit a formal challenge to the Department of
Justice to contest the criminal background report.
(C) An applicant shall be informed of his or her right to a waiver
of the fee for obtaining a copy of a criminal history record, and of
how to submit a claim and proof of indigency, as required by Section
11123 of the Penal Code.
(D) No fee shall be charged to a provider, potential personnel, or
service recipient to cover any costs of administering this paragraph
associated with criminal background checks, or the cost to the
Department of Justice or any law enforcement agency for processing
the criminal background check. 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. A public
authority or nonprofit consortium shall not seek reimbursement unless
the conditions described in subparagraph (F) are met.
(E) As used in this section, "nonprofit consortium" means a
nonprofit public benefit corporation that has all powers necessary to
carry out the delivery of in-home supportive services under the
delegated authority of a government entity.
(F) (i) Upon verification that at least 50 percent of the public
authority or nonprofit consortium list of registry applicants have
received a criminal background check, the county may request
reimbursement for the nonfederal share of cost associated with the
criminal fingerprint record check in accordance to the fiscal
claiming methodology.
(ii) The public authority or nonprofit consortium shall provide a
report to the State Department of Social Services on the number of
prospective registry applicants that have been referred to the
Department of Justice for a criminal background check.
(iii) The Department of Justice shall provide verification to the
State Department of Social Services on the number of prospective
registry applicants that have completed a criminal background check.
(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) (A) Performing any other functions related to the delivery of
in-home supportive services.
(B) (i) Upon request of a recipient of in-home supportive services
pursuant to this chapter, or a recipient of personal care services
under the Medi-Cal program pursuant to Section 14132.95, a public
authority or nonprofit consortium may provide a criminal background
check on a nonregistry applicant or provider from the Department of
Justice, in accordance with clause (i) of subparagraph (A) of
paragraph (2) of subdivision (e). If the person who is the subject of
the criminal background check is not hired or is terminated because
of the information contained in the criminal background report, the
provisions of subparagraph (B) of paragraph (2) of subdivision (e)
shall apply.
(ii) A recipient of in-home supportive services pursuant to this
chapter or a recipient of personal care services under the Medi-Cal
program may elect to employ an individual as their service provider
notwithstanding the individual's record of previous criminal
convictions, unless those convictions include any of the offenses
specified in Section 12305.81.
(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. 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.
(4) A provider may request a replacement duplicate warrant due to
a lost or stolen warrant within two days from the date the original
warrant should have been received. A county shall request a
replacement duplicate warrant, but not earlier than five days from
the effective issue date of the warrant.
(5) The department and the Controller shall respond expeditiously
to reissue a lost or stolen warrant. This paragraph shall also apply
to all entities under contract with the department or Controller to
provide payrolling support and services pursuant to this section.
(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 11346.1 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 (d) shall apply only to those matters that do not
require federal approval.
(B) The second sentence of subdivision (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 (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.
(p) (1) Notwithstanding any other provision of law, and except as
provided in paragraph (2), the department shall, no later than
January 1, 2009, implement subparagraphs (A) and (B) through an all
county letter from the director:
(A) Subparagraphs (A) and (B) of paragraph (2) of subdivision (e).
(B) Subparagraph (B) of paragraph (5) of subdivision (e).
(2) The department shall, no later than July 1, 2009, adopt
regulations to implement subparagraphs (A) and (B) of paragraph (1).
(q) The amendments made to paragraphs (2) and (5) of subdivision
(e) made by the act that added this subdivision during the 2007-08
Regular Session of the Legislature shall only be implemented to the
extent that an appropriation is made in the annual Budget Act or
other statute, except for the amendments that added subparagraph (D)
of paragraph (2) of subdivision (e), which shall go into effect
January 1, 2009.
SEC. 2. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.