BILL ANALYSIS                                                                                                                                                                                                    Ó



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          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  








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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