BILL ANALYSIS Ó AB 470 Page 1 ASSEMBLY THIRD READING AB 470 (Chu) As Amended June 1, 2015 Majority vote ------------------------------------------------------------------- |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 | | | | | | | | | | | | ------------------------------------------------------------------- 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 AB 470 Page 2 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 AB 470 Page 3 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)) AB 470 Page 4 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 AB 470 Page 5 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 AB 470 Page 6 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 AB 470 Page 7 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