Amended in Senate August 31, 2015

Amended in Assembly May 6, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 1436

Introduced by Assembly Member Burke

February 27, 2015

An act to add Section 12300.3 to the Welfare and Institutions Code, relating to public social services.

LEGISLATIVE COUNSEL’S DIGEST

AB 1436, as amended, Burke. In-home supportive services: authorized representative.

Existing law provides for the In-Home Supportive Services begin insert (IHSS) end insert program, under which qualified aged, blind, or disabled persons are provided with supportive services in order to permit them to remain in their own homes and avoid institutionalization. Existing law specifies that supportive services include, among other things, domestic services, personal care services, and paramedical services that make it possible for the recipient to establish and maintain an independent living arrangement.

This bill would authorize an applicant for, or recipient of, in-home supportive services to designate an individual to act as his or her authorized representative for purposes of the begin delete In-Home Supportive Services end delete begin insert IHSS end insert program. The bill would define an authorized representative to mean an individual who is begin delete appointed end delete begin insert designated end insert in writing, on a form begin delete designated end delete begin insert developed end insert by the State Department of Social Services, by begin delete a competent person who is end delete an applicant begin delete for end delete or recipient begin delete of in-home supportive services, to act in place or on behalf of the applicant or recipient for purposes related to the program, including, but not limited to, accompanying, assisting, or representing the applicant in the application process, or the recipient in directing the services received, as specified. end delete begin insert to accompany, assist, and represent the applicant or recipient for specified purposes related to the program. end insert The bill would require the begin delete duties to be provided end delete begin insert form to specify the responsibilities to be performed end insert by the authorized representative begin delete to be specified by the applicant or recipient and would end delete begin insert and to end insert provide that begin delete those duties end delete begin insert the designation end insert may be changed or revoked at any time by the applicant or recipient. The bill would also provide that the authorized representative has begin delete a legal end delete begin insert the end insert responsibility to act in the begin delete client’s end delete begin insert applicant or recipient’s end insert best interest. The bill would exclude certain persons from serving as an authorized representative, including a person who is begin delete found to have perpetrated a substantiated report of abuse or neglect against a child or an elder or dependent adult. end delete begin insert prohibited from being a provider of services following a conviction for, or incarceration following a conviction for, fraud against a government health care or supportive services progra end insert begin insert m. end insert The bill would require the department, in consultation with specified parties, including representatives of applicants for, and recipients of, services, to develop a form for this purpose, as specified. begin insert The bill would require a county to retain the original form that designates an authorized representative in the applicant or recipient’s IHSS case file, and to provide copies of the form to the applicant or recipient and to the authorized representative. By creating additional duties for local officials, the bill would impose a state-mandated local program. The bill would authorize the department to implement and administer these provisions through all-county letters or similar instructions until regulations are adopted, and would require the department to, no later than July 1, 2016, adopt emergency regulations. end insert

begin insert

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

end insert begin insert

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

end insert

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 12300.3 is added to the end insert begin insert Welfare and
Institutions Code end insert begin insert , to read: end insert

begin insert

begin insert 12300.3. end insert   

(a) For purposes of this section, an “authorized
representative” means an individual who is designated in writing,
on a form developed by the department, by an applicant for or
recipient of in-home supportive services pursuant to this article,
to accompany, assist, and represent the applicant or recipient for
purposes related to the program, including, but not limited to, the
application process, direction of services, and predeterminations
of eligibility.

(b) An applicant or recipient may designate an individual to
act as his or her authorized representative for the purposes
described in subdivision (a) on a form that does all of the
following:

(1) Specifies an effective time period, to be determined by the
department.

(2) Specifies the responsibilities to be performed by the
authorized representative.

(3) May be revoked or changed by the applicant or recipient at
any time.

(c) The authorized representative designation pursuant to this
section shall not authorize representation for an administrative
hearing conducted by the department. An applicant or recipient
shall comply with Section 10950 to designate an authorized
representative for the purposes of an administrative hearing.

(d) The authorized representative shall have the responsibility
to act in the applicant or recipient’s best interest, shall not have
any other power to act on behalf of the applicant or recipient,
except as specified in writing pursuant to this section, and shall
not act in lieu of the applicant or recipient.

(e) (1) An applicant or recipient who has a legal representative
with the legal authority to act on behalf of the applicant or
recipient that includes decisionmaking authority for purposes
reasonably believed to be related to the program, as described in
subdivision (a), shall not be required to complete an authorized
representative form, except for the purpose specified in subdivision
(g).

(2) A legal representative may designate an authorized
representative for the applicant or recipient in accordance with
the requirements of this section.

(3) For purposes of this subdivision, a legal representative shall
include both of the following:

(A) A court-appointed guardian or conservator.

(B) For an applicant or recipient who is a minor, a parent or
other individual determined by the county human services agency
to be the legally authorized decisionmaker for the applicant or
recipient.

(f) (1) The following individuals shall not serve as an authorized
representative for an applicant or recipient:

(A) An individual who is prevented from being a provider of
services pursuant to Section 12305.81.

(B) An individual who is prevented from being a provider of
services pursuant to Section 12305.87.

(2) The prohibitions described in paragraph (1) shall not apply
to an individual described in subdivision (e).

(g) An authorized representative may sign timesheets or other
provider-related documents for in-home supportive services on
behalf of the recipient, if specified by the recipient on the
authorized representative form. Notwithstanding any other law,
an authorized representative who is a provider of services for the
recipient may not sign his or her own timesheet on behalf of the
recipient unless the authorized representative is an individual
specified in subdivision (e). For administrative processing
purposes, a legal representative specified in subdivision (e) shall
complete an authorized representative form to sign timesheets or
other provider-related documents for in-home supportive services
on behalf of the recipient.

(h) (1) The department, in consultation with the State
Department of Health Care Services, the County Welfare Directors
Association of California, representatives of applicants for and
recipients of services under this article, and representatives of
providers of services under this article, shall develop a
standardized statewide form and procedures for effectuating the
designation of an authorized representative pursuant to this
section.

(2) The standard agreement form shall include a notification
regarding the requirements of this subdivision and a statement
that by signing the agreement, the individual designated as an
authorized representative agrees to abide by those requirements.

(i) When an applicant or recipient designates an authorized
representative on the authorized representative form, the county
shall retain the original form in the applicant or recipient’s
in-home supportive services case file. The form may be
electronically retained. The county shall provide copies of the form
to the applicant or recipient and to the individual designated as
the authorized representative.

(j) (1) Notwithstanding the rulemaking provisions of the
Administrative Procedure Act (Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code), the department may implement and administer this section
through all-county letters or similar instructions from the
department until regulations are adopted. The department shall
adopt emergency regulations implementing these provisions no
later than July 1, 2016. The department may readopt any
emergency regulation authorized by this section that is the same
as or substantially equivalent to an emergency regulation
previously adopted under this section.

(2) The initial adoption of emergency regulations pursuant to
this section and one readoption of emergency regulations shall be
deemed an emergency and necessary for the immediate
preservation of the public peace, health, safety, or general welfare.
Initial emergency regulations and the one readoption of emergency
regulations authorized by this section shall be exempt from review
by the Office of Administrative Law. The initial emergency
regulations and the one readoption of emergency regulations
authorized by this section shall be submitted to the Office of
Administrative Law for filing with the Secretary of State, and each
shall remain in effect for no more than 180 days, by which time
final regulations may be adopted.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert begin insert

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.

end insert

begin delete

SECTION 1.  

Section 12300.3 is added to the Welfare and
Institutions Code, to read:

12300.3.  

(a) For purposes of this section, an “authorized
representative” means an individual who is appointed in writing,
on a form designated by the department, by a competent person
who is an applicant for or recipient of in-home supportive services
pursuant to this article, to act in place or on behalf of the applicant
or recipient for purposes related to the program, including, but not
limited to, accompanying, assisting, or representing the applicant
in the application process, or the recipient in directing the services
received, and in the redetermination of eligibility process.

(b) (1) An applicant for, or recipient of, services pursuant to
this article may designate an individual to act as his or her
authorized representative for purposes of the in-home supportive
services program.

(2) (A) The duties to be provided by the authorized
representative shall be specified by the applicant or recipient and
may be changed or revoked at any time by the applicant or
recipient. The authorized representative shall have a legal
responsibility to act in the client’s best interest.

(B) Legal documentation of authority to act on behalf of the
applicant or recipient under state law, including, but not limited
to, a court order establishing legal guardianship or a valid power
of attorney to make health care decisions, shall serve in place of
a written appointment by the applicant or recipient.

(C) The authorized representative may sign timesheets for
services rendered on the recipient’s behalf, if specified to do so
by the recipient. However, an authorized representative who is the
provider of services for the recipient may not sign his or her own
timesheet unless one of the following applies:

(i) The provider is a parent, guardian, or other person having
legal custody of a minor recipient.

(ii) The provider is legally authorized to act on behalf of the
applicant or recipient under state law.

(3) For purposes of this section, an individual having legal
authority to act on behalf of an applicant or recipient may also
specify an individual other than himself or herself to act on behalf
of the applicant or recipient if that individual elects to do so.

(4) An individual who is prevented from being a provider of
services in the program pursuant to Section 12305.86 shall not
serve as an authorized representative for an applicant or recipient.

(5) An individual who has been granted an exemption to serve
as a provider of services pursuant to Section 12305.87 and who is
not described in clause (i) or (ii) of subparagraph (C) of paragraph
(2), shall not serve as an authorized representative for an applicant
or recipient.

(6) An individual shall not serve as an authorized representative
if he or she is found to have perpetrated a substantiated report of
abuse or neglect against a child or an elder or dependent adult.

(c) (1) The department, in consultation with the State
Department of Health Care Services, the County Welfare Directors
Association of California, representatives of applicants for and
recipients of services under this article, and representatives of
providers of services under this article, shall develop a standardized
statewide form and procedures for effectuating the designation of
an authorized representative pursuant to this section.

(2) The standard agreement form shall include a notification
regarding the requirements of this subdivision and a statement that
by signing the agreement, the individual named as an authorized
representative agrees to abide by those requirements.

end delete