BILL NUMBER: AB 876 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 31, 2011
INTRODUCED BY Assembly Member Valadao
FEBRUARY 17, 2011
An act to amend Section 12300 12305.87
of the Welfare and Institutions Code, relating to in-home
supportive services.
LEGISLATIVE COUNSEL'S DIGEST
AB 876, as amended, Valadao. In-Home Supportive Services program.
Existing law provides for the county-administered 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 prohibits a person from
providing supportive services if he or she has been convicted of
specified crimes in the previous 10 years. Existing law authorizes a
recipient of services who wishes to employ a provider applicant who
has been convicted of a specified offense to submit to the county a
prescribed individual waiver, signed by the recipient, or by the
recipient's authorized representative, and returned to the county
welfare department.
This bill would make a technical, nonsubstantive change to these
provisions.
This bill would prohibit a provider applicant from signing his or
her own individual waiver form as the recipient's authorized
representative.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 12305.87 of the
Welfare and Institutions Code is amended to read:
12305.87. (a) (1) Commencing 90 days following the effective date
of the act that adds this section, a person specified in paragraph
(2) shall be subject to the criminal conviction exclusions provided
for in this section, in addition to the exclusions required under
Section 12305.81.
(2) This section shall apply to a person who satisfies either of
the following conditions:
(A) He or she is a new applicant to provide services under this
article.
(B) He or she is an applicant to provide services under this
article whose application has been denied on the basis of a
conviction and for whom an appeal of that denial is pending.
(b) Subject to subdivisions (c), (d), and (e), an applicant
subject to this section shall not be eligible to provide or receive
payment for providing supportive services for 10 years following a
conviction for, or incarceration following a conviction for, any of
the following:
(1) A violent or serious felony, as specified in subdivision (c)
of Section 667.5 of the Penal Code and subdivision (c) of Section
1192.7 of the Penal Code.
(2) A felony offense for which a person is required to register
under subdivision (c) of Section 290 of the Penal Code. For purposes
of this subparagraph paragraph , the
10-year time period specified in this section shall commence with the
date of conviction for, or incarceration following a conviction for,
the underlying offense, and not the date of registration.
(3) A felony offense described in paragraph (2) of subdivision (c)
or paragraph (2) of subdivision (g) of Section 10980.
(c) Notwithstanding subdivision (b), an application shall not be
denied under this section if the applicant has obtained a certificate
of rehabilitation under Chapter 3.5 (commencing with Section
4852.01) of Title 6 of Part 3 of the Penal Code or if the
information or accusation against him or her has been dismissed
pursuant to Section 1203.4 of the Penal Code.
(d) (1) Notwithstanding subdivision (b), a recipient of services
under this article who wishes to employ a provider applicant who has
been convicted of an offense specified in subdivision (b) may submit
to the county an individual waiver of the exclusion provided for in
this section. This paragraph shall not be construed to allow a
recipient to submit an individual waiver with respect to a conviction
or convictions for offenses specified in Section 12305.81.
(2) The county shall notify a recipient who wishes to hire a
person who is applying to be a provider and who has been convicted of
an offense subject to exclusion under this section of that applicant'
s relevant criminal offense convictions that are covered by
subdivision (b). The notice shall include both of the following:
(A) A summary explanation of the exclusions created by subdivision
(b), as well as the applicable waiver process described in this
subdivision and the process for an applicant to seek a general
exception, as described in subdivision (e). This summary explanation
shall be developed by the department for use by all counties.
(B) An individual waiver form, which shall also be developed by
the department and used by all counties. The waiver form shall
include both of the following:
(i) A space for the county to include a reference to any Penal
Code sections and corresponding offense names or descriptions that
describe the relevant conviction or convictions that are covered by
subdivision (b) and that the provider applicant has in his or her
background.
(ii) A statement that the service recipient, or his or her
authorized representative, if applicable, is aware of the applicant's
conviction or convictions and agrees to waive application of this
section and employ the applicant as a provider of services under this
article.
(3) To ensure that the initial summary explanation referenced in
this subdivision is comprehensible for recipients and provider
applicants, the department shall consult with representatives of
county welfare departments and advocates for, or representatives of,
recipients and providers in developing the summary explanation and
offense descriptions.
(4) The individual waiver form shall be signed by the recipient,
or by the recipient's authorized representative, if applicable, and
returned to the county welfare department by mail or in person.
A provider applicant shall not sign his or her own individual waiver
form as the recipient's authorized represent ative.
The county shall retain the waiver form and a copy of the provider
applicant's criminal offense record information search response until
the date that the convictions that are the subject of the waiver
request are no longer within the 10-year period specified in
subdivision (b).
(5) An individual waiver submitted pursuant to this subdivision
shall entitle a recipient to hire a provider applicant who otherwise
meets all applicable enrollment requirements for the In-Home
Supportive Services program. A provider hired pursuant to an
individual waiver may be employed only by the recipient who requested
that waiver, and the waiver shall only be valid with respect to
convictions that are specified in that waiver. A new waiver shall be
required if the provider is subsequently convicted of an offense to
which this section otherwise would apply. A provider who wishes to be
listed on a provider registry or to provide supportive services to a
recipient who has not requested an individual waiver shall be
required to apply for a general exception, as provided for in
subdivision (e).
(6) Nothing in this section shall preclude a provider who is
eligible to receive payment for services provided pursuant to an
individual waiver under this subdivision from being eligible to
receive payment for services provided to one or more additional
recipients who obtain waivers pursuant to this same subdivision.
(7) The state and a county shall be immune from any liability
resulting from granting an individual waiver under this subdivision.
(e) (1) Notwithstanding subdivision (b), an applicant who has been
convicted of an offense identified in subdivision (b) may seek from
the department a general exception to the exclusion provided for in
this section.
(2) Upon receipt of a general exception request, the department
shall request a copy of the applicant's criminal offender record
information search response from the applicable county welfare
department. Notwithstanding any other provision of law, the county
shall provide a copy of the criminal offender record information
search response, as provided to the county by the Department of
Justice, to the department. The county shall provide this information
in a manner that protects the confidentiality and privacy of the
criminal offender record information search response. The state or
federal criminal history record information search response shall not
be modified or altered from its form or content as provided by the
Department of Justice.
(3) The department shall consider the following factors when
determining whether to grant a general exception under this
subdivision:
(A) The nature and seriousness of the conduct or crime under
consideration and its relationship to employment duties and
responsibilities.
(B) The person's activities since conviction, including, but not
limited to, employment or participation in therapy education, or
community service, that would indicate changed behavior.
(C) The number of convictions and the time that has elapsed since
the conviction or convictions.
(D) The extent to which the person has complied with any terms of
parole, probation, restitution, or any other sanction lawfully
imposed against the person.
(E) Any evidence of rehabilitation, including character
references, submitted by the person, or by others on the person's
behalf.
(F) Employment history and current or former employer
recommendations. Additional consideration shall be given to employer
recommendations provided by a person who has received or has
indicated a desire to receive supportive or personal care services
from the applicant, including, but not limited to, those services,
specified in Section 12300.
(G) Circumstances surrounding the commission of the offense that
would demonstrate the unlikelihood of repetition.
(H) The granting by the Governor of a full and unconditional
pardon.
(f) If the department makes a determination to deny an application
to provide services pursuant to a request for a general exception,
the department shall notify the applicant of this determination by
either personal service or registered mail. The notice shall include
the following information:
(1) A statement of the department's reasons for the denial that
evaluates evidence of rehabilitation submitted by the applicant, if
any, and that specifically addresses any evidence submitted relating
to the factors in paragraph (3) of subdivision (e).
(2) A copy of the applicant's criminal offender record information
search response, even if the applicant already has received a copy
pursuant to Section 12301.6 or 12305.86. The department shall provide
this information in a manner that protects the confidentiality and
privacy of the criminal offender record information search response.
(A) The state or federal criminal history record shall not be
modified or altered from its form or content as provided by the
Department of Justice.
(B) The department shall retain a copy of each individual's
criminal offender record information search response until the date
that the convictions that are the subject of the exception are no
longer within the 10-year period specified in subdivision (b), and
shall record the date the copy of the response was provided to the
individual and the department.
(C) The criminal offender record information search response shall
not be made available by the department to any individual other than
the provider applicant.
(g) (1) Upon written notification that the department has
determined that a request for exception shall be denied, the
applicant may request an administrative hearing by submitting a
written request to the department within 15 business days of receipt
of the written notification. Upon receipt of a written request, the
department shall hold an administrative hearing consistent with the
procedures specified in Section 100171 of the Health and Safety Code,
except where those procedures are inconsistent with this section.
(2) A hearing under this subdivision shall be conducted by a
hearing officer or administrative law judge designated by the
director. A written decision shall be sent by certified mail to the
applicant.
(h) The department shall revise the provider enrollment form
developed pursuant to Section 12305.81 to include both of the
following:
(1) The text of subdivision (c) of Section 290 of the Penal Code,
subdivision (c) of Section 667.5 of the Penal Code, subdivision (c)
of Section 1192.7 of the Penal Code, and paragraph (2) of
subdivisions (c) and (g) of Section 10980.
(2) A statement that the provider understands that if he or she
has been convicted, or incarcerated following conviction for, any of
the crimes specified in the provisions identified in paragraph (b) in
the last 10 years, and has not received a certificate of
rehabilitation or had the information or accusation dismissed, as
provided in subdivision (c), he or she shall only be authorized to
receive payment for providing in-home supportive services under an
individual waiver or general exception as described in this section,
and upon meeting all other applicable criteria for enrollment as a
provider in the program.
(i) (1) Notwithstanding the rulemaking provisions of the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code),
the department may implement and administer this section through
all-county letters or similar instructions from the department until
regulations are adopted. The department shall adopt emergency
regulations implementing these provisions no later than July 1, 2011.
The department may readopt any emergency regulation authorized by
this section that is the same as or substantially equivalent to an
emergency regulation previously adopted under this section.
(2) The initial adoption of emergency regulations pursuant to this
section and one readoption of emergency regulations shall be deemed
an emergency and necessary for the immediate preservation of the
public peace, health, safety, or general welfare. Initial emergency
regulations and the one readoption of emergency regulations
authorized by this section shall be exempt from review by the Office
of Administrative Law. The initial emergency regulations and the one
readoption of emergency regulations authorized by this section shall
be submitted to the Office of Administrative Law for filing with the
Secretary of State and each shall remain in effect for no more than
180 days, by which time final regulations may be adopted.
(j) In developing the individual waiver form and all-county
letters or information notices or similar instructions, the
department shall consult with stakeholders, including, but not
limited to, representatives of the county welfare departments, and
representatives of consumers and providers. The consultation shall
include at least one in-person meeting prior to the finalization of
the individual waiver form and all-county letters or information
notices or similar instructions.
SECTION 1. Section 12300 of the Welfare and
Institutions Code is amended to read:
12300. (a) The purpose of this article is to provide in every
county in a manner consistent with this chapter and the annual Budget
Act those supportive services identified in this section to aged,
blind, or disabled persons, as defined under this chapter, who are
unable to perform the services themselves and who cannot safely
remain in their homes or abodes of their own choosing unless these
services are provided.
(b) Supportive services shall include domestic services and
services related to domestic services, heavy cleaning, personal care
services, accompaniment by a provider when needed during necessary
travel to health-related appointments or to alternative resource
sites, yard hazard abatement, protective supervision, teaching and
demonstration directed at reducing the need for other supportive
services, and paramedical services which make it possible for the
recipient to establish and maintain an independent living
arrangement.
(c) Personal care services shall mean all of the following:
(1) Assistance with ambulation.
(2) Bathing, oral hygiene, and grooming.
(3) Dressing.
(4) Care and assistance with prosthetic devices.
(5) Bowel, bladder, and menstrual care.
(6) Repositioning, skin care, range of motion exercises, and
transfers.
(7) Feeding and assurance of adequate fluid intake.
(8) Respiration.
(9) Assistance with self-administration of medications.
(d) Personal care services are available if these services are
provided in the beneficiary's home and other locations as may be
authorized by the director. Among the locations that may be
authorized by the director under this paragraph is the recipient's
place of employment if all of the following conditions are met:
(1) The personal care services are limited to those that are
currently authorized for a recipient in the recipient's home and
those services are to be utilized by the recipient at the recipient's
place of employment to enable the recipient to obtain, retain, or
return to work. Authorized services utilized by the recipient at the
recipient's place of employment shall be services that are relevant
and necessary in supporting and maintaining employment. However,
workplace services shall not be used to supplant any reasonable
accommodations required of an employer by the federal Americans with
Disabilities Act (42 U.S.C. Sec. 12101 et seq.; ADA) or other legal
entitlements or third-party obligations.
(2) The provision of personal care services at the recipient's
place of employment shall be authorized only to the extent that the
total hours utilized at the workplace are within the total personal
care services hours authorized for the recipient in the home.
Additional personal care services hours may not be authorized in
connection with a recipient's employment.
(e) Where supportive services are provided by a person having the
legal duty pursuant to the Family Code to provide for the care of his
or her child who is the recipient, the provider of supportive
services shall receive remuneration for the services only when the
provider leaves full-time employment or is prevented from obtaining
full-time employment because no other suitable provider is available
and where the inability of the provider to provide supportive
services may result in inappropriate placement or inadequate care.
These providers shall be paid only for the following:
(1) Services related to domestic services.
(2) Personal care services.
(3) Accompaniment by a provider when needed during necessary
travel to health-related appointments or to alternative resource
sites.
(4) Protective supervision only as needed because of the
functional limitations of the child.
(5) Paramedical services.
(f) To encourage maximum voluntary services, so as to reduce
governmental costs, respite care shall also be provided. Respite care
is temporary or periodic service for eligible recipients to relieve
persons who are providing care without compensation.
(g) A person who is eligible to receive a service or services
under an approved federal waiver authorized pursuant to Section
14132.951, or a person who is eligible to receive a service or
services authorized pursuant to Section 14132.95, shall not be
eligible to receive the same service or services pursuant to this
article. In the event that the waiver authorized pursuant to Section
14132.951, as approved by the federal government, does not extend
eligibility to all persons otherwise eligible for services under this
article, or does not cover a service or particular services, or does
not cover the scope of a service that a person would otherwise be
eligible to receive under this article, those persons who are not
eligible for services, or for a particular service under the waiver
or Section 14132.95 shall be eligible for services under this
article.
(h) (1) All services provided pursuant to this article shall be
equal in amount, scope, and duration to the same services provided
pursuant to Section 14132.95, including any adjustments that may be
made to those services pursuant to subdivision (e) of Section
14132.95.
(2) Notwithstanding any other provision of this article, the rate
of reimbursement for in-home supportive services provided through any
mode of service shall not exceed the rate of reimbursement
established under subdivision (j) of Section 14132.95 for the same
mode of service unless otherwise provided in the annual Budget Act.
(3) The maximum number of hours available under Section 14132.95,
Section 14132.951, and this section, combined, shall be 283 hours per
month. Any recipient of services under this article shall receive no
more than the applicable maximum specified in Section 12303.4.