BILL ANALYSIS Ó
SENATE HUMAN
SERVICES COMMITTEE
Senator Leland Y. Yee, Chair
BILL NO: AB 485
A
AUTHOR: Gomez
B
VERSION: September 6, 2013
HEARING DATE: September 10, 2013
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FISCAL: Yes
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CONSULTANT: Mareva Brown
SUBJECT
In-home supportive services
SUMMARY
This bill delinks the statewide bargaining provision of
In-Home Supportive Services (IHSS) providers and associated
creation of a statewide Public Authority from other
provisions and timelines of the Coordinated Care Initiative
(CCI).
ABSTRACT
Existing law
1) Establishes in state law a program of public
Medi-Cal benefits to provide health care for people
who lack sufficient annual income to meet the costs of
health care, and whose other assets are so limited
that their application toward the costs of such care
would jeopardize the person or family's future minimum
self-maintenance and security. (WIC 14000 et seq.)
2) Establishes the IHSS program to provide domestic
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and other supportive services in every county, as
specified, for individuals 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. (WIC 12300 et seq.)
3) Requires each county to establish a public
authority or nonprofit consortium for providers of
IHSS to establish a registry to help consumers find
workers, conduct background checks of prospective
workers, provide training and serve as the employer of
record for collective bargaining. Establishes that
recipients of IHSS shall retain the right to choose
the individuals that provide their care and to
recruit, select, train, reject, or change any provider
under the contract mode or to hire, fire, train, and
supervise any provider under any other mode of
service. (WIC 12302.25 et seq.)
4) Establishes the CCI, subject to federal approval,
which establishes in eight counties an integrated
health and long-term managed care plan for individuals
and seniors and persons with disabilities who receive
both Medi-Cal and Medicare benefits, and includes IHSS
within the managed care plans. (WIC 14182.16) (WIC
14186.35)
5) Predicates establishment of a statewide bargaining
authority, the California In-Home Supportive Services
Authority, on the completed enrollment of each
demonstration county's CCI participants and
notification by the state that such enrollment has
been completed. Sets this date as no sooner than March
1, 2013. (WIC 12300.7 (a))
6) Deems inoperable the establishment of the statewide
bargaining authority and related authority to obtain
information about IHSS providers established in the
CCI if the CCI becomes inoperative. (GOV 6253.2)
7) Establishes that a statewide employee organization
may be established after a county's CCI implementation
date and makes related references in statute. (GOV
110003, et seq.) (GOV 110011 (e)) (WIC 12300.5)
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8) Creates an IHSS Maintenance Of Effort (MOE)
requirement for each county and provides that this MOE
shall be counted in lieu of the county's share of
nonfederal costs of the county services block grant
and IHSS administration requirements, but provides
that this MOE shall become inoperative if the CCI is
inoperative. (WIC 12306.15) (WIC 10101.1 (d)) (12306
(f))
9) Establishes state rates for IHSS providers and
permits counties to set wages based on their
collective bargaining agreements and provides specific
conditions under which the state may participate in
increased wages and benefits, as specified. (WIC
12306.1 (a))
10) Provides that each county's share of the costs of
negotiated wage and benefit increases will remain
during the period in which a county's MOE exists,
however the MOE share will be in lieu of that share.
Establishes that this section be inoperative if the
CCI becomes inoperative. (WIC 12306.1 (g) and (h))
11) Requires that participating managed health care
plans enter into a memorandum of understanding (MOU)
with a county's public authority or related
organization when a demonstration county has enrolled
its eligible beneficiaries into the CCI. The MOU must
include an agreement to continue to perform specific
activities including assessing, authorizing and
approving each recipient's initial and continuing need
for services, conducting criminal background checks on
all potential providers, providing assistance to IHSS
recipients in finding eligible providers, referring
all providers to the statewide bargaining agency, and
other specified tasks. (WIC 14186.35)
12) Requires the state's Director of Finance to
estimate the amount of net General Fund Savings gained
from implementing the CCI and to suspend the CCI
immediately if it is determined that no savings will
be generated, as specified. Specifies which sections
of statute shall be deleted if the CCI is deemed
inoperative and requires that the statewide public
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authority cease to be the employer of record and the
counties resume that role. (Section 34, Chapter 37,
statutes of 2013)
This bill
1) Eliminates the requirement to delete authority for
the statewide bargaining authority and related
requirements if the CCI is inoperative.
2) Removes the requirement to link the establishment
of the statewide employee organization to a county's
implementation of the CCI, and makes related language
changes in numerous places in the statute.
3) Eliminates the requirement to revert a county's MOE
share of cost to the original cost-sharing formula if
the CCI is not implemented.
4) Deletes the requirement that the establishment of
the California In-Home Supportive Services Authority
be tied to the completed enrollment of beneficiaries
into the CCI and the notification of such by the
director of the Department of Health Care Services.
5) Sets January 1, 2014, as the date that the
California In-Home Supportive Services Authority
assumes responsibility for statewide collective
bargaining.
6) Deletes a redundant section (WIC 12302.25) that has
been updated by subsequently chaptered statute.
7) Eliminates language that makes inoperative the
requirement to count a county's IHSS MOE in lieu of a
county's share of cost of negotiated wage and benefit
increases, as specified.
8) Changes the required date for plans to establish an
MOU with county public authorities that transfers
bargaining responsibility to the statewide authority
from the implementation of the CCI in each county to
January 1, 2014.
9) Deletes statute that eliminates the Statewide
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Authority and returns the role of employer of record
to the counties should the CCI become inoperative.
10) Eliminates from the list of codes that shall be
deleted if the CCI becomes inoperative those codes
that establish the In-Home Supportive Services
Employer-Employee Relations Act, establish and define
the duties of the Statewide Authority, establish the
IHSS Fund, which is used to fund the Statewide
Authority, require all counties to have a County IHSS
MOE and to pay the County IHSS MOE instead of paying
the nonfederal share of IHSS costs, as specified.
FISCAL IMPACT
The current version of this bill has not been analyzed by a
fiscal committee.
BACKGROUND AND DISCUSSION
Purpose of the bill
The author states that while the budget act of 2012
established a framework for moving to statewide collective
bargaining for providers within the IHSS program, delays in
implementing the CCI have stalled this move. The author
argues that it is necessary to sever the link between CCI
implementation and the creation of the IHSS Statewide
Authority and transfer of employer responsibility to that
authority from local entities.
Originally, the state had anticipated implementation of the
CCI within its eight demonstration counties no earlier than
March 1, 2013. However, various delays have pushed that
date to no sooner than April 1, 2014. Budget trailer bill
chaptered in June 2013 delinked the integration of
long-term services and supports into managed care from the
implementation of the integration of Medi-Cal and Medicare
financing.
The bill's sponsor, AFSCME, AFL-CIO, notes that the
implementation delays have resulted in delays in the
transfer of collective bargaining to the state, and as a
consequence some local bargaining units have been met with
delays or reluctance to engage in bargaining when the
transfer of responsibility is expected to be imminent. The
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sponsor writes that several counties have proposed one-year
contract extensions, while others have opposed increases in
IHSS spending because it would permanently increase the
county's IHSS MOE.
IHSS and the CCI
The IHSS program is a county-administered Medi-cal benefit
which provides low-income individuals who are aged, blind
or disabled specified personal care and domestic services
that allow them to remain safely in their own homes and to
avoid institutionalization.
IHSS services include tasks like feeding, bathing, bowel
and bladder care, meal preparation and clean-up, laundry,
and paramedical care. Currently, there are approximately
450,000 recipients of IHSS statewide, and, as of 2012,
approximately 360,000 IHSS providers. Nearly three-fourths
of the providers are family members of care recipients and
half live in the home with the recipient for whom they
provide services. IHSS workers earn an average $11.62 per
hour, according to data compiled by DHCS in 2012.
Eligibility for IHSS services is currently determined by
county social workers who conduct a standardized in-home
assessment, and periodic reassessments, of an individual's
ability to perform specific activities of daily living.
Recipients are responsible for hiring, firing, directing
and supervising their IHSS provider or providers. The
counties or public authorities must conduct a criminal
background check and provide an orientation before a
provider can receive payment. Local public authorities are
designated as "employers of record" for collective
bargaining purposes, while the state administers payroll,
workers' compensation, and benefits. IHSS is funded
through a combination of federal, state, and county money.
The state historically has paid 65 percent and counties
have paid 35 percent of the non-federal share of IHSS
funding. The average annual cost of services per client was
estimated at $11,420 for 2012-13.
The CCI establishes a framework, contingent upon federal
approval, for integrating into managed care plans the
health care of individuals who receive both Medi-Cal and
Medicare benefits, including long-term services and
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supports and IHSS. Initially, this integration into managed
care is slated to begin in eight specified demonstration
counties, with the plan to ultimately expand statewide.
SB 1036 (Committee on Budget and Fiscal Review, Chapter 45,
Statutes of 2012) originally incorporated IHSS into the
CCI, and established a statewide bargaining process to be
implemented as each county implemented the CCI. The statute
anticipated that as soon as March 1, 2013, the pilot would
begin in the demonstration counties and provided that once
IHSS was an established Medi-Cal benefit through managed
care plans that bargaining would be transferred to the
statewide public authority.
With delays in the implementation of the CCI, due in part
to delayed approval from the federal Centers for Medicaid
and Medicare Services (CMS), the state delayed the
implementation of the CCI by more than a year.
Role of the Public Authority
In-home care was first provided in California in the 1950s
through a grant to eligible consumers who hired and paid
their own providers. Over time, as the eligible population
grew along with the desire to keep individuals in the most
home-like setting, the IHSS program was developed and grew
to the nation's largest program of its type. Initially,
care was provided by family members who received pay for a
few hours of service.
As the program grew, the provider network expanded. In the
late 1980s and early 1990s, prompted by pleas from
advocates, local government and labor, the legislature
established a county's responsibility to create a local
public authority or non-profit consortium and tasked it
with establishing a registry to help consumers find
providers, and with conducting background checks and
providing training to workers. It also served as the
employer of record for bargaining purposes. The requirement
to form a public authority or similar entity became
mandatory in 1999.
Under the CCI, county public authorities will relinquish
their employer of record status to the statewide IHSS
bargaining authority, but will retain other duties, such as
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performing background checks and creating a registry for
consumers to find appropriate caregivers.
Related Legislation
SB 94 (Committee on Budget and Fiscal Review) Chapter 37,
Statutes of 2013, delinks the mandatory enrollment of
Medi-Cal and Medicare beneficiaries, into Medi-Cal managed
care from other elements of the CCI, including the
integration of long-term supports and services into managed
care plans, and the commencement of the In-Home Supportive
Services (IHSS) Statewide Public Authority. Makes technical
changes related to the statewide public authority's ability
to conduct closed meetings.
SB 1036 (Committee on Budget and Fiscal Review) Chapter 45,
Statutes of 2012, provided for the integration of long-term
services and supports, including IHSS, into managed care
through the CCI.
AB 1682 (Peace) Chapter 90, Statutes of 1999, established
that the state and county share costs of any increase in
IHSS wages and benefits negotiated by a public authority or
private consortium and required each county to act as, or
establish, an employer for IHSS personnel for purposes of
collective bargaining.
COMMENTS
The prior version of this bill modified statutory language
regarding bargained agreements involving physicians,
dentists and podiatrists. That language was stricken when
this bill was amended on September 6.
PRIOR VOTES
Prior votes on this bill in the Assembly were for unrelated
language.
POSITIONS
Support: AFSCME / AFL-CIO (co-sponsor)
UDW/AFSCME Local 3930 (co-sponsor)
State Council of the Services Employees
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International Union (SEIU)
Oppose: None received
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