BILL ANALYSIS Ó
AB 1436
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Date of Hearing: April 28, 2015
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Kansen Chu, Chair
AB 1436
(Burke) - As Introduced February 27, 2015
SUBJECT: In-home supportive services: authorized
representative
SUMMARY: Allows In-Home Supportive Services applicants and
recipients to designate an authorized representative.
Specifically, this bill:
1)Defines "authorized representative" to mean an individual who
is appointed by an In-Home Supportive Services (IHSS)
applicant or recipient in order to represent that applicant or
recipient for purposes related to the IHSS program, as
specified.
2)Allows an IHSS applicant or recipient to designate an
authorized representative.
3)Specifies that an IHSS applicant or recipient shall determine
the duties to be provided by the authorized representative and
that these duties may be changed or revoked at any time by the
applicant or recipient.
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4)Requires the authorized representative to have a legal
responsibility to act in the client's best interest.
5)States that 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 an IHSS applicant's or recipient's
written appointment of an authorized representative.
6)Permits the authorized representative, if so instructed by the
IHSS recipient, to sign timesheets for services rendered on
behalf of the recipient, but disallows the authorized
representative who is a care provider from signing his or her
own timesheet unless the provider has legal custody over a
minor recipient, as specified, or the provider is legally
authorized to act on the applicant's or recipient's behalf per
state law.
7)Specifies that an individual with legal authority to act on
behalf of an IHSS applicant or recipient may designate someone
other than him or herself to act on behalf of the applicant or
recipient.
8)Prohibits anyone prevented from being an IHSS provider due to
past criminal convictions, as well as individuals granted
certain exemptions to serve as a provider despite past
criminal convictions, as specified, from serving as an
authorized representative.
9)Prohibits anyone found to have perpetuated a substantiated
report of abuse or neglect against a child, elder, or
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dependent adult from serving as an authorized representative.
10)Directs the Department of Social Services, in consultation
with stakeholders, as specified, to develop a standardized
statewide form, as specified, and procedures related to the
designation of an authorized representative.
EXISTING LAW:
1)Establishes the IHSS program to provide supportive services,
including domestic, protective supervision, personal care, and
paramedical services as specified, to individuals who are
aged, blind, or living with disabilities, and who are unable
to perform the services themselves or remain safely in their
homes without receiving these services. (WIC 12300 et seq.)
2)Specifies requirements regarding IHSS provider timesheets,
including that both provider and recipient must sign the
timesheet to verify the accuracy of information. (WIC
12301.25)
3)States that counties may choose to contract with a nonprofit
consortium or establish a public authority for the provision
of IHSS services. Requires nonprofit consortia and public
authorities to, among other things, establish a registry to
assist recipients in locating IHSS providers, and to
investigate the background and qualifications of potential
providers, as specified. (WIC 12301.6)
4)Maintains an IHSS recipient's right to hire, fire, and
supervise the work of any IHSS provider, regardless of the
employer responsibilities of a public authority or nonprofit
consortium, as specified. (WIC 12301.6 and 12302.25)
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5)Requires counties to perform a background check on individuals
applying to become IHSS providers, and stipulates
circumstances under which individuals shall be excluded from
becoming an IHSS provider, as well as circumstances under
which such an exclusion might be waived, as specified. (WIC
12305.86 and 12305.87)
FISCAL EFFECT: Unknown
COMMENTS:
In-Home Supportive Services: The IHSS program enables
low-income individuals who are at least 65 years old, living
with disabilities, or blind to remain in their own homes by
paying for care providers to assist with personal care services
(such as toileting, bathing, and grooming), domestic and related
services (meal preparation, housecleaning, and the like),
paramedical services, and protective supervision. Approximately
470,000 Californians receive IHSS, with approximately 99%
receiving it as a Medicaid benefit.
When an individual is determined eligible for IHSS services by a
county social worker, he or she is authorized for a certain
number of hours of care. IHSS recipients are responsible for
hiring, firing, directing, and supervising their IHSS workers.
These responsibilities include some administrative duties, such
as scheduling and signing timesheets; however, the state handles
payroll. There are currently about 409,000 IHSS providers in
the state; approximately 73% are relatives and an estimated 52%
are live-in. Providers must complete an enrollment process,
including submitting fingerprint images for a criminal
background check and participating in a provider orientation
prior to receiving payment for services.
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Authorized representatives: A number of programs administered
by the state allow for, and set forth definitions and
designation procedures regarding, authorized representatives in
order to facilitate recipients' full participation in programs.
These authorized representatives are permitted, within specified
limits, to act on behalf of program applicants and participants
typically for purposes of applying for services and other
required program activities.
For example, Welfare and Institutions Code 14014.5 defines
"authorized representative" for purposes of the Medi-Cal program
and directs the Department of Health Care Services and the
California Health Benefit Exchange to implement policies and
prescribe materials to ensure the protection and privacy of
applicants and recipients who appoint such a representative.
Additionally, DSS Manual of Policies and Procedures Section
63.402-6 outlines rules and processes regarding the appointment
of authorized representatives by applicants for and recipients
of CalFresh food stamp benefits.
Need for this bill: According to the author, the authorized
representative function is critical in that it provides
applicants and recipients with a self-directed pathway to
receive needed assistance with complex rules and requirements of
these programs. IHSS program applicants and recipients may
struggle with increasingly complex and changing program rules;
yet, while they may have family members and friends who are able
to provide support, there is no formal process to designate
these individuals as authorized representatives.
Additionally, the author points out, DSS has at times issued
IHSS forms and All-County letters that reference "authorized
representatives," despite the lack of definition, explanation of
duties and limitations, or formal designation process. As a
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result, counties have often developed ad hoc internal processes
for designating authorized representatives for purposes of the
IHSS program.
The author states that, "IHSS program recipients are the
employer of their care provider for purposes of hiring/firing,
training, supervising, scheduling and signing their timesheet.
Similarly, whether to designate an authorized representative and
who to designate would be their decision. For consumers who
struggle with the maze of programmatic rules and complex
paperwork, allowing them to designate an authorized
representative to work on their behalf will give them the
support they need to continue to direct services in their own
homes and remain independent."
This bill, according to the author, provides flexibility for an
IHSS applicant or recipient to determine the duties of the
authorized representative, and makes it clear that the
authorized representative has a legal responsibility to act in
the client's best interest.
According to the County Welfare Directors Association of
California (CWDA), the sponsor of this bill, it creates "an
authorized representative function for IHSS in statute. Whether
to designate an authorized representative would be the decision
of an individual recipient. Who to designate would also be his
or her choice, with a few exceptions that mirror other
protections in current law. For example, the bill would provide
that an individual who could not meet a criminal background
check to become a provider of services in IHSS could not be
named as an authorized representative unless they were otherwise
legally authorized to act on behalf of the recipient (such as
the parent of a child recipient or a conservator.) Also, an
individual found to have perpetrated abuse or neglect against a
child or adult would be barred from serving as an authorized
representative. As the IHSS program continues to grow, it is
vital to create a standardized structure for designating an
authorized representative to assist an applicant for or
recipient of these services."
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Recommended amendments: For purposes of clarity, committee
staff recommends the following technical amendment to paragraph
(b)(2) beginning on page 3 of the bill:
12 (2) For purposes of this section, an individual having
legal
13 authority to act on behalf of an applicant or recipient may
also
14 designate the authorized representative to specify an
individual
15 other than himself or herself to act on behalf of the
applicant or
16 recipient if that individual elects to do so.
REGISTERED SUPPORT / OPPOSITION:
Support
County Welfare Directors Association of CA (CWDA) -sponsor
California Association of Public Authorities (CAPA) - co-sponsor
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American Federation of State, County and Municipal Employees
(AFSCME)
California State Association of Counties (CSAC)
Ventura County Board of Supervisors
UDW/AFSCME Local 3930
Opposition
None on file.
Analysis Prepared by:Daphne Hunt / HUM. S. / (916) 319-2089
AB 1436
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