BILL ANALYSIS
AB 682
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Date of Hearing: April 14, 2209
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall, Jr., Chair
AB 682 (Lowenthal) - As Amended: March 26, 2009
SUBJECT : In-Home Supportive Services: Fraud.
SUMMARY : Requires the state Department of Health Care Services
(DHCS) to evaluate implementation of provisions intended to
combat fraud in the In-Home Supportive Services (IHSS) program.
Specifically, this bill :
1)Requires that, beginning January 1, 2010, DHCS dedicate an
unspecified number of positions to evaluate implementation of
five specific anti-fraud provisions of the Welfare and
Institutions Code related to the IHSS program and authorizes
DHCS to fill the positions either by using existing resources
or, if an appropriation is provided for that purpose, by
adding new positions.
2)Requires DHCS, in consultation with the state Department of
Social Services (DSS), and stakeholders including IHSS
consumers and providers, to provide a report to the
Legislature by December 31, 2011, which shall do all of the
following with respect to IHSS-related fraud:
a) Identify the magnitude of fraud in terms of the total
dollars inappropriately spent or removed from the program,
and the number of consumers harmed or placed at risk of
harm as a result of fraudulent activity;
b) 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 the
function of the persons committing fraud with specificity
but without revealing personal identifying information;
and,
c) Provide recommendations on the best means to combat IHSS
fraud.
3)States legislative findings and declarations, as follows:
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a) The IHSS program is the one of the fastest growing
programs in the state, and will continue to grow.
b) Wage and benefit increases also contribute to overall
spending in the IHSS program; but, wages are, in most
instances, little more than minimum wages, benefits tend to
be fewer than in other jobs, and common benefits, such as
sick leave, are not available to IHSS workers.
c) While evidence of IHSS-related fraud is believed to be
very low, with such a large, growing program, it is
imperative that the state and stakeholders adhere to a
zero-tolerance policy on fraud because fraud has the
potential to harm the IHSS program by removing valuable
resources.
4)States the Legislature's intent to determine the extent and
type of IHSS-related fraud in order to evaluate existing
antifraud provisions and make revisions as necessary to ensure
that the IHSS program carries out its mission of providing
services to seniors and people with disabilities.
5)Provides that the provisions of the bill will sunset on
January 1, 2012 unless the sunset is deleted or extended by a
later enacted statute; but, also provides that, if the
provision requiring the report to the Legislature is repealed,
the report must nonetheless be prepared and delivered.
EXISTING LAW
1)Establishes the IHSS program to provide personal services and
home care for 444,000 eligible poor, aged, blind and disabled
individuals by an average of 325,000 providers throughout the
state to enable recipients to remain in their own homes and
avoid institutionalization.
2)Provides that DSS supervises the IHSS program at the state
level and that counties administer services at the local
level.
3)Provides for funding of the IHSS program through a combination
of about 50% federal (Medicaid), 32% state, and 18% county
dollars.
4)Defines "fraud" for purposes of the IHSS program to mean:
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"the intentional deception or misrepresentation made by a
person with the knowledge that the deception could result in
some unauthorized benefit to himself or herself or some other
person. Fraud also includes any act that constitutes fraud
under applicable federal or state law."
5)Specifies the responsibilities of DSS, DHCS and the counties
for various quality assurance activities, including activities
to ensure program integrity, including fraud detection and
prevention.
6)Prohibits persons who have been convicted of certain crimes,
including fraud against a government health care or supportive
services program, within the preceding 10 years from providing
or receiving IHSS services.
7)Provides for the recovery of overpayments to IHSS providers
and, if the overpayment is determined to be the result of
fraud by the service provider, prohibits future payments to
the provider for up to 10 years following conviction or the
term of incarceration following the conviction for fraud.
FISCAL EFFECT : Unknown
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COMMENTS :
Background : The IHSS Program helps pay for services so that the
elderly, disabled, or blind individuals can remain in their own
homes and avoid institutionalization. IHSS services include,
but are not limited to, housecleaning, meal preparation,
laundry, grocery shopping, personal care services (such as bowel
and bladder care, bathing, grooming and paramedical services),
accompaniment to medical appointments, and protective
supervision for people with mental impairments. IHSS consists
of four programs, including: Personal Care Services Program
(PCSP), IHSS Plus Waiver Program (IPW), IHSS Residual Program
(IRP), and Medi-Cal Waiver Personal Care Program (MWPCS). The
PCSP, IPW, and IRP are administered at the county level by
county welfare departments and at the State level by the Adult
Programs Division within DSS. The Medi-Cal Waiver Personal Care
Services (MWPCS) Program is administered through Department of
Health Care Services. A portion of the costs for IHSS services
are paid by federal funding. The entire program consists of
over 444,000 recipients and on average 325,000 IHSS workers.
In 2004, as part of the budget trailer bill, SB 1104, the
Legislature imposed a number of mandatory duties on DSS, DHCS
and the counties with respect to quality, cost controls and
program integrity within the IHSS program. Among other things,
SB 1104 defined and distinguished between "fraud" and
"overpayments," with fraud being limited to traditional
prosecutable acts of intentional misrepresntation, while
overpayment was defined broadly to include all instances in
which providers are paid in excess of the amount for authorized
services, whether fraudulent or not. SB 1104 authorized DHCS to
investigate fraud in the provision or receipt of supportive
services, and required counties to refer instances of suspected
fraud to DHCS for investigation. It required DHCS to notify
DSS, the county, and the county's nonprofit consortium or public
authority, if any, of a determination that a provider has
engaged in fraud.
Need for the bill : According to the author, notwithstanding
quality assurance measures implemented through SB 1104,
"insinuations of widespread fraud persist." The author suggests
that these insinuations may be unjustified, noting that there is
a "disconnect between perception and fact" that is "not
acceptable for such a large and growing state program. ... If
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we can identify fraud, we can stop it. But we can't diminsh
funding for the program based on anecdotal evidence." This bill
is intended to collect data and document instances of fraud
within the IHSS program.
PROPOSED AMENDMENTS : "Fraud" has a specific meaning under the
IHSS statutes, and must involve an intentional deception or
misrepresentation. Most overpayments, for example, are not the
result of fraud. In addition, not all allegations of fraud are
substantiated. Therefore, it is recommended that this bill be
amended to include the criterion that would be used to determine
the magnitude of IHSS fraud occuring during the reporting
period.
The author is reportedly agreeable to amending this bill:
1)To explicitly say that the required report will apply to fraud
" as defined in subdivision (a) of Section 12305.8 of the
Welfare and Institutions Code and which resulted in a
convition for fraud or incarceration following conviction for
fraud. "
2)To state that the bill applies to fraud " that resulted in
conviction " within the five-year period covered by the report.
REGISTERED SUPPORT / OPPOSITION :
Support
Aging Services of California
Service Employees International Union (SEIU) (sponsor)
Opposition
None on file
Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089