BILL ANALYSIS Ó
AB 470
Page 1
ASSEMBLY THIRD READING
AB
470 (Chu)
As Amended June 1, 2015
Majority vote
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|Committee |Votes |Ayes |Noes |
| | | | |
| | | | |
|----------------+------+----------------------+--------------------|
|Human Services |7-0 |Chu, Mayes, Calderon, | |
| | |Lopez, Maienschein, | |
| | |Mark Stone, Thurmond | |
| | | | |
|----------------+------+----------------------+--------------------|
|Appropriations |12-0 |Gomez, Bonta, | |
| | |Calderon, Daly, | |
| | |Eggman, Eduardo | |
| | |Garcia, Gordon, | |
| | |Holden, Quirk, | |
| | |Rendon, Weber, Wood | |
| | | | |
| | | | |
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SUMMARY: Requires the development of protocols to expedite the
criminal background check process for In-Home Supportive Services
(IHSS) providers. Specifically, this bill:
1)Requires the Department of Justice (DOJ), in collaboration with
the Department of Social Services (DSS), to develop protocols to
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expedite the processing of provider criminal background checks
for IHSS by October 1, 2016.
2)Authorizes the development of these protocols to be funded
through moneys appropriated by the Legislature to the DOJ for
the purpose of conducting IHSS prospective provider criminal
record check activities, as specified.
EXISTING LAW:
1)Establishes the IHSS program as a benefit available to The
California Medical Assistance Program (Medi-Cal) beneficiaries
that provides in-home care and supportive services to low-income
aged, blind, or disabled persons who are unable to provide or
care for themselves and who cannot live safely in their homes
without assistance. Defines supportive services within the
program to include domestic services, personal care services,
protective supervision, paramedical services, and other
services, as specified. (Welfare and Institutions Code (WIC)
Section 12300 et seq.)
2)Authorizes counties to establish a public authority or contract
with a nonprofit consortium for the purpose of carrying out the
delivery of in-home supportive services, which includes
requesting criminal background checks for prospective IHSS
providers from the DOJ. (WIC Section 12301.6)
3)Maintains an IHSS recipient's right to hire, fire, and supervise
the work of any in-home supportive services personnel providing
services for him or her, despite the employer responsibilities
of a public authority or nonprofit consortium, as specified.
(WIC Section 12301.6 (c))
4)Requires a criminal background check to be conducted for any
prospective IHSS providers, as specified. (WIC Sections
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12301.6(e) and 12305.86(a))
5)Establishes the following related to the role of the DOJ in
conducting IHSS provider criminal background checks when
requested by an employer:
a) Requires the DOJ to secure a criminal record of an IHSS
provider to determine whether he or she has been convicted of
committing or attempting to commit certain exclusionary
crimes, as specified;
b) Establishes a process and a 30-day timeline for the DOJ
to report the criminal record information obtained to the
employer;
c) Authorizes an employer to deny employment to any person
who is the subject of a criminal record report from the DOJ
and the report indicates that the person has committed an
exclusionary crime, as specified. Maintains an employer's
ability to not hire any person who is the subject of a DOJ
report if the report reveals that the individual has not
committed any of the specified crimes;
d) Requires the DOJ to charge a fee to cover the costs of
conducting background checks; and
e) States the intent of the Legislature that the DOJ charge a
fee to cover its cost in obtaining and providing criminal
record information, as specified, within the 30 calendar day
requirement. (WIC Section 15660)
6)Requires criminal background checks to be conducted at the
expense of a prospective IHSS provider. (WIC Section 12301.6
(e)(2)(A)(i))
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7)Authorizes the DOJ to charge a fee to a person or entity making
a request for criminal history information related to an
application for employment, licensing, or certification that the
DOJ determines to be sufficient to cover the cost of furnishing
the information. Additionally allows the DOJ to add a surcharge
to the fee to fund maintenance and improvements to the systems
from which the information is obtained. Provides that all
moneys received by the DOJ through the collection of certain
fees, as specified, shall be deposited in a special account in
the General Fund to be available for expenditure by the DOJ to
offset costs and for system maintenance and improvements, upon
appropriation by the Legislature. (Penal Code Section 11105(e))
FISCAL EFFECT: According to the Assembly Appropriations
Committee, this bill will result in minor costs to DOJ.
COMMENTS:
In-Home Supportive Services (IHSS): The IHSS program provides
personal care and domestic services to nearly 460,000 qualified,
low-income individuals who are aged, blind, or disabled. Through
the IHSS program, recipients are cared for and assisted with
activities of daily living, allowing them to remain safely in
their own homes and avoid institutionalization. IHSS services
include: paramedical services, such as giving medications and
changing a colostomy bag; non-medical personal care services, such
as toileting, dressing, and transportation; domestic services,
such as housework, shopping for groceries and meal preparation;
and, protective supervision for those who, due to cognitive
impairment or dementia, cannot be left alone for extended periods.
County social workers determine eligibility for IHSS and the
authorized hours of care after conducting a standardized in-home
assessment, and periodic reassessments, of an individual's ability
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to perform specified activities of daily living. Once eligible,
recipients are responsible for hiring, firing, directing and
supervising their own IHSS provider or providers. Prior to
receiving payment for services, providers must complete a provider
enrollment process, which includes submitting fingerprint images
for a criminal background check and participating in the provider
orientation.
Background check requests: Since the implementation of the IHSS
provider criminal background check requirement, which was included
in 2009 budget trailer bill language, most counties have relied on
their public authorities to conduct those background checks. In
2014, public authorities submitted 115,984 "applicant
transactions" (requests for criminal background information) to
the DOJ for predominantly IHSS, and some other in-home care,
provider applicants. Of those transactions, 73.58% were dispensed
with immediately and the other 26.42% required technical review by
the DOJ. The department processed and dispensed with 95% of the
requests within 30 days, meaning 5,773 of the 115,984 requests
required further technical review beyond the 30-day timeframe.
While technical reviews are sometimes triggered due to the DOJ
system rejecting illegible fingerprint images, they are most
frequently triggered when criminal history information is missing,
including arrest information that is not accompanied by
disposition information. Incomplete records can result in an
extensive manual process to, at minimum, contact the booking
agency, get in touch with the arresting agency, and obtain the
necessary disposition information, all of which delays the
completion of a criminal background check report for a requesting
agency or employer.
Pending regulations impacting providers: Additionally, DSS, which
is the department that oversees the IHSS program, is in the
process of finalizing changes to current IHSS regulations that
would, among other things, establish a firm timeline for provider
applicants to complete the enrollment process, including providing
fingerprints and undergoing criminal background checks. Asserting
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that the current enrollment process is too open-ended because it
lacks firm deadlines for prospective providers to meet enrollment
requirements, the proposed regulations would require that all IHSS
provider enrollment requirements be met within 90 calendar days of
a provider completing any one of the requirements or when a
recipient designates the individual as his or her prospective
provider. While this timeline is intended to help counties
operate more efficiently with respect to processing IHSS provider
applications, it may put prospective IHSS providers at a
disadvantage if for some reason their criminal background check
reports are not able to be furnished by the DOJ within that 90-day
period.
Need for this bill: The DOJ processes approximately two million
state level background checks annually. Under current law, the
DOJ charges fees to process background checks for a number of
different categories of applicants for licenses and paid and
volunteer employment. Some of these categories include people
applying for positions involving the care and supervision of
children, the elderly and people with disabilities; individuals
seeking to volunteer to transport individuals impaired by drugs or
alcohol, and; people applying to adopt a child or to be foster
parents. The fees collected by the DOJ for processing background
checks for all of these individuals are deposited into a special
account in the General Fund and can be appropriated by the
Legislature back to the DOJ to offset the costs of administering
background check requirements and maintaining the systems that
assist in obtaining the information necessary to meet those
requirements. While current law requires the DOJ to collect fees
to offset the administration of criminal background checks of
providers in the IHSS program, sponsors of this bill note that
there is no mechanism to similarly appropriate the moneys
collected through the IHSS provider background check fees back to
the DOJ.
Although insufficient disposition information doesn't necessarily
mean that an arrest resulted in a conviction, let alone an
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exclusionary crime, the DOJ is required by statute to make a
"genuine effort" to determine the disposition of any arrest that
is not accompanied by a corresponding disposition. While the DOJ
is fulfilling its statutory requirement by seeking information
from local authorities to fill gaps in a prospective IHSS
provider's background, the author contends that care for consumers
is frequently delayed. According to the author, "With over
450,000 consumers in California relying on IHSS providers for
their care and well-being, it is imperative that a sufficient
number of providers be available for such care. While background
checks are a necessary requirement to ensure the safety of
consumers, neither consumers nor providers are served by
unnecessary delays in the employment process. "
Analysis Prepared by:
Myesha Jackson / HUM. S. / (916) 319-2089 FN:
0000749