BILL ANALYSIS                                                                                                                                                                                                    



                                                                    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




















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