BILL ANALYSIS Ó
SB 930
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Date of Hearing: June 28, 2011
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall Jr., Chair
SB 930 (Evans) - As Introduced: February 18, 2011
SENATE VOTE : 23-16
SUBJECT : In-home supportive services: enrollment and
fingerprinting requirements
SUMMARY : Repeals requirements that In-Home Supportive Services
(IHSS) recipients provide fingerprint images and that provider
timesheets include spaces for provider and recipient
fingerprints, and repeals the prohibition against providers
using a post office box address to receive their paychecks.
Specifically, this bill :
1)Repeals the requirement that IHSS recipients provide
fingerprint images at the time of assessment or reassessment.
2)Repeals the requirement that the standardized timesheet
include designated spaces for the index fingerprints of the
provider and the recipient.
3)Deletes the requirements and prohibitions related to the use
of a post office box address by an IHSS provider.
EXISTING LAW
1)Establishes the IHSS program to provide domestic and
personal-care services to aged individuals and to persons with
a disability in order to assist them to remain safely in their
homes.
2)Establishes the Medi-Cal program through which health care
services are provided to qualified low-income persons.
3)Provides personal care services to IHSS recipients who are
eligible for the Medi-Cal program in lieu of providing those
services under the IHSS program.
4)Requires the State Department of Social Services (DSS), in
consultation with county welfare departments, to develop
protocols and procedures for obtaining fingerprint images of
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all individuals who are being assessed or reassessed to
receive supportive services.
5)Requires that, by July 1, 2011, the standardized timesheet
used to track the work performed by providers of IHSS include
spaces for the index fingerprints of the provider and the
recipient.
6)Requires that providers complete their enrollment form using a
physical address and prohibits their use of a post office box
address.
7)Prohibits counties from mailing providers' paychecks to a post
office box address unless the county approves a provider
request to do so.
FISCAL EFFECT : Unknown
COMMENTS : According to the author, this bill is intended to
repeal three untenable components of the "IHSS Anti-Fraud
Initiative" included in the 2009-10 budget trailer bill related
to IHSS, AB X4 19, Chapter 17, Statutes of 2009 4th
Extraordinary Session. The author says:
In 2009, Governor Schwarzenegger persuaded the
Legislature to adopt the "IHSS Anti-Fraud Initiative."
The purpose of this effort was to ensure the identity
of IHSS applicants and to prevent duplicate aid. The
initiative included ten separate components. Three
components of this initiative have proven to be costly
and ineffective: (1) fingerprinting for all
consumers, (2) provider and consumer fingerprints on
timesheets, and (3) prohibition of the use of P.O.
Boxes by providers on IHSS forms. There is no
evidence to support the effectiveness of these three
"anti-fraud" mandates. In the absence of this
evidence, the $41.6 million to be spent on this part
of the program should be spent on other priorities.
Background : In 2004, comprehensive legislation was enacted to
standardize assessment of IHSS recipients' needs and to ensure
integrity in the IHSS program. SB 1104 (Committee on Budget &
Fiscal Review), Chapter 224, Statutes of 2004. Among other
requirements, SB 1104 directed DSS and the Department of Health
Care Services (DHCS) to develop a new provider enrollment form
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that each person seeking to provide supportive services must
complete, sign under penalty of perjury, and submit to the
county. SB 1104 also gave DHCS authority to investigate
suspected instances of fraud in the IHSS program. SB 1104
required DSS, DHCS, and county quality assurance staff to work
together and coordinate activities.
In July 2009, AB X4 1 (Evans), Chapter 1, Statutes of 2009 4th
Extraordinary Session, allocated additional 2009-10 and 2010-11
funds to DHCS and DSS for a total of 25 new fraud investigation
and program integrity-related positions. AB X4 1 additionally
included $10 million in additional funds to be allocated to
counties based on their approved plans. AB X4 4 (Evans),
Chapter 4 of the 2009-10 Fourth Extraordinary Session, the human
services trailer bill, also included changes to provisions
governing the new provider enrollment form, requiring
documentation to be submitted in person by applicant providers
to county offices.
At the same time, AB X4 19 (Evans), Chapter 17, Statutes of 2009
4th Extraordinary Session, was enacted to enhance program
integrity and anti-fraud protections in the IHSS program. AB X4
19 was considered through the budget process and was not vetted
through legislative policy committees. It included the
following anti-fraud measures: (1) new provider enrollment
requirements, (2) fingerprinting and criminal background checks
for all providers, (3) increased data matching with jail, death
and other official records to eliminate fraudulent claims, (4)
provider acknowledgement of delivering services, (5) provider
orientations, (6) unannounced home visits, (7) fraud training
for county staff, (8) prohibition on the use of post office
boxes by providers on IHSS forms, (9) fingerprinting recipients,
and (10) fingerprints of recipient and provider on each
timesheet. This bill repeals the last three of these measures.
No cost-benefit analysis was done at the time to support the
anti-fraud measures of AB X4 19, including the fingerprinting
requirements. Nonetheless, the 2009-10 Budget included the
Schwarzenegger Administration's estimate of about $162 million
General Fund savings as a result of new anti-fraud activities in
the IHSS program. The estimated savings were based on an
assumption of a basic 10% of program costs. No further
empirical basis for the assumption was offered. The
Administration's 2010-11 Budget estimated an annual General Fund
Savings of $130 million annually from anti-fraud measures.
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How common is IHSS fraud? Statewide data on the incidence of
fraud in the IHSS program is lacking. Federal participation in
the cost of IHSS services comes through the Medicaid program,
and because DHCS is California's single state agency for
Medicaid, the unit charged with investigating reports of
suspected fraud in the IHSS program is located within that
department. As reported in June 2009, according to DHCS:
Currently there is no accurate means of measuring or
monitoring IHSS fraud within the state. This is
because of the number of jurisdictions involved and
the various data collection systems in place . . .
Because there is no accurate means of measuring or
monitoring IHSS fraud within the state, we do not know
the exact number of providers or recipients committing
fraud.
In-Home Supportive Services: A Primer on Potential Fraud and
Suggestions for Curbing It, California Senate Office of
Oversight and Outcomes (June 26, 2009), p. 3.
While accurate statewide data on the incidence of IHSS fraud is
lacking, there is no shortage of misinformation. For example,
in support of the prior administration's anti-fraud proposals,
Governor Schwarzenegger and a number of district attorneys
repeatedly referenced a figure of 25% in fraudulent IHSS
payments. This figure appears to have originated in a 2004
Spring Finance Letter in reference, not to fraud but, rather, to
weaknesses and deficiencies in the needs assessments conducted
at the time. Based on State level case reviews conducted for a
number of years, the Finance Letter notes, "at least 10% of all
paid services may be over-assessed or have not actually been
provided." The Finance Letter then references the Governor's
Budget for FY 2004-05, which reportedly "acknowledged that up to
25% of the hours may be over-assessed." This 25% figure was
then picked up by news media and reported as a reflection of
fraud in the IHSS program, rather than over-assessments due to
problems with the need assessment process then in use.
A handful of grand jury reports issued during this period were
likewise misrepresented. The Sacramento County grand jury
released a report in March, 2009, for example, entitled IHSS:
For the Needy, Not the Greedy. The report begins with
statistics. From 2005-06 through 2006-07, Sacramento County
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paid $151 million to IHSS providers. Investigations found
$820,000 in fraudulent overpayments. This represents 0.54% of
payments. About 10% of these overpayments were recovered,
according to the grand jury. Similarly, in fiscal year 2006-07,
the grand jury found that there were 397 reports of suspected
fraud out of approximately 17,735 IHSS cases-or 2.2%. Of those,
31 were referred and accepted for prosecution, a rate of
prosecutable fraud of only 0.2%. Then, the grand jury report
shifted away from data to sworn testimony. The report provides
a list of fraudulent activities that at least one witness
believed has taken place at least once within the county. The
list is without quantification or details, and the report
includes no direct quotations from witnesses' statements.
Moreover, the grand jury did not assert that these activities
went undetected, only that a witness said each activity had
occurred. The grand jury concluded, offering no evidence in
support and offering some evidence to the contrary, that fraud
is "rampant and out of control." The grand jury chose to
highlight this broad and unsubstantiated claim in its executive
summary and press release, and the media reported on it.
In sum, available data do not support the conclusion that there
is widespread fraud in the IHSS program. If anything is rampant
and out of control, it is the repeated dissemination of
misinformation about the incidence of IHSS fraud.
Nonetheless, this bill does not impact most of the anti-fraud
measures enacted through AB X4 19. It would cancel only the
requirement that counties secure fingerprint images of
applicants for and recipients of IHSS at the time of application
or reapplication; the requirement that timesheets have a space
for an index-finger print of both the recipient and the provider
of IHSS; and, the prohibition against providers using a post
office box for receipt of wage checks. In addition to "quality
assurance" provisions added by the Legislature in 2004, seven of
the ten measures included in AB X4 19 would remain in place.
Duplicate aid fraud : Fingerprinting of IHSS recipients is
purportedly intended to prevent duplicate aid fraud-i.e.,
receiving aid under more than one identity or in more than one
county. Whatever the overall incidence of fraud in the IHSS
program, no data are available on the incidence of this type of
fraud. In fact, it is difficult to even conceive of scenarios
of how such duplicate aid fraud might be perpetrated by the
seniors and people with disabilities who receive IHSS services.
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As advocates opposing proposed 2010-11 Budget expenditures for
proceeding with recipient fingerprinting pointedly remarked at
the time, "Ýt]his is a solution in search of a problem; there is
no evidence that people are disguising themselves as someone
else to get IHSS, or that people are going from county to county
to be bathed."
Arguments in support : The California State Association of
Counties (CSAC) and County Welfare Directors Association of
California (CWDA) note in their joint support letter that the
state has estimated that it would need $8.2 million this year
alone, and a total of $41.6 million over the next 7 years, to
implement the recipient fingerprinting requirement. "Clearly,"
CSAC and CWDA say, "in these difficult fiscal times, the
expenditure of millions to implement an anti-fraud initiative in
the absence of demonstrated widespread fraud would be imprudent
at best." The Western Center on Law and Poverty quotes a May 8,
2010 letter to DSS from the Obama Administration concerning
fingerprinting in the CalFresh program, which notes that "Ým]ost
States satisfy the requirement to establish a system to prevent
duplicate participation by matching names with social security
numbers, which is far less costly than finger image systems yet
equally effective at detecting duplicate participation."
Disability Rights California (DRC) notes, in relation to the
prohibition on providers' use of post office boxes, that there
are many valid reasons that IHSS providers use post office
boxes. Many IHSS providers live in rural areas where there are
no alternative means for receiving mail. Also, many providers
live with relatives or roommates who do not allow them to get
mail sent to their residence. The U.S. Postal Service itself
points out on its Web site that "Ým]any customers value the
privacy, security, and flexibility of a Post Office Box,"
noting, for example, that: "It's fast. Mail typically arrives
faster at a PO Box than at a residential or business address"
and "It's permanent. You can move around, but your PO Box
address stays the same." CSAC and CWDA assert that limiting the
use of post office boxes may harm the ability of counties and
consumers to recruit and retain providers. In any event, as DRC
points out, no evidence was ever offered to connect post office
boxes with fraud.
Arguments in opposition : The California District Attorneys
Association (CDAA) suggests that the anti-fraud measures in
question, and particularly the fingerprinting requirements have
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a deterrent effect and that repealing these measures "will
significantly hinder efforts to deter persons from seeking
duplicate aid and could potentially make the discovery of such
fraud more difficult." CDAA also opposes repeal of the
prohibition on using post office boxes, asserting that "Ýt]he
less physical information law enforcement and prosecutors have
about persons who would defraud the IHSS program, the harder it
is to intercede and stop such activity."
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union
American Federation of State, County and Municipal Employees
(AFSCME)
California Alliance for Retired Americans
California Association of Public Authorities for IHSS
(cosponsor)
California Coalition for Women Prisoners (CCWP)
California Disability Community Action Network
California Foundation for Independent Living Centers
California In-Home Supportive Services Consumer Alliance
California State Association of Counties (CSAC)
California United Homecare Workers Union, SEIU/AFSCME Local 4034
Californians for Disability Rights
Communities United in Defense of Olmstead
Contra Costa County
County Welfare Directors Association of California (CWDA)
Congress of California Seniors (CCS)
Disability Rights California (cosponsor)
In Home Supportive Services Coalition
AARP-California
Access to Independence
ACLU Southern California
California Alliance for Retired Americans
California Association of Public Authorities
California Church IMPACT
Congress of California Seniors
Californians for Disability Rights
California Foundation for Independent Living
California IHSS Consumer Alliance
California Senior Legislature
California Disability Community Action Network
California United Homecare Workers
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Dayle McIntosh Center for the Disabled
Disability Rights California
East Bay Community Law Center
Friends Committee on Legislation
Gray Panthers
Independent Livings Resource Center Inc.
Marin IHSS Public Authority
National Senior Citizen's Law Center
Nevada-Sierra-Plumas Public Authority
Northern California ADAPT
Older Women's League
Legal Services for Prisoners with Children
National Association of Social Workers
Pamela Hoye
Personal Assistance Services Council of Los Angeles County
San Francisco In-Home Supportive Services Public Authority
Service Employees International Union (SEIU) California
(cosponsor)
State Independent Living Council
The Arc and United Cerebral Palsy in California
United Domestic Workers of America/ AFSCME Local 3930/ AFL-CIO
(cosponsor)
Western Center on Law & Poverty
1 Individual
Opposition
California District Attorneys Association (CDAA)
Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089