BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON HUMAN SERVICES
                               Senator McGuire, Chair
                                2015 - 2016  Regular 

          Bill No:              AB 1436
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          |Author:   |Burke                                                 |
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          |Version:  |May 6, 2015            |Hearing    | June 23, 2015   |
          |          |                       |Date:      |                 |
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          |Urgency:  |No                     |Fiscal:    |Yes              |
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          |Consultant|Sara Rogers                                           |
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                 Subject:  In-home supportive services:  authorized  
                                   representative


            SUMMARY
          
          Allows In-Home Supportive Services (IHSS) applicants and  
          recipients to designate an authorized representative to  
          accompany, assist or represent an applicant in the application  
          process, or a recipient in the direction of services, and  
          eligibility redetermination process.

            ABSTRACT
          
          Existing law:

          1)Establishes in state law a program of public Medi-Cal benefits  
            to provide health care for people who lack sufficient annual  
            income to meet the costs of health care, and whose other  
            assets are so limited that their application toward the costs  
            of such care would jeopardize the person or family's future  
            minimum self-maintenance and security. (WIC 14000 et seq.)


          2)Establishes the IHSS program to provide domestic and other  
            supportive services in every county, as specified, for  
            individuals who are unable to perform the services themselves  
            and who cannot safely remain in their homes or abodes of their  
            own choosing unless these services are provided. (WIC 12300 et  
            seq.) 







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          3)Provides that recipients of in-home supportive services shall  
            retain the right to choose the individuals that provide their  
            care and to recruit, select, train, reject, or change any  
            provider under the contract mode or to hire, fire, train, and  
            supervise any provider under any other mode of service. (WIC  
            12302.25)


          4)Provides that an IHSS applicant or recipient shall meet  
            certain conditions including:


               a.     Submit a three page application for social services.  
                 (SOC 295)
               b.     Obtain a certification from a licensed health care  
                 professional, as defined, declaring that the applicant or  
                 recipient is unable to perform some activities of daily  
                 living independently without which the applicant or  
                 recipient is at risk of placement in out-of-home care.  
                 (WIC 12309.1)
               c.     Have the recipient's initial and continuing monthly  
                 need for services assessed by a county social worker at  
                 varying intervals as necessary, but at least once every  
                 12 months. (WIC 12301.1)
               d.     Participate in unannounced home visits, from a  
                 county social worker, to ensure quality assurance and  
                 program integrity, including fraud detection and  
                 prevention. (WIC 12305.71)
               e.     Hire, train, supervise, schedule and, when  
                 necessary, fire a provider. (SOC 295)
               f.     Ensure the total hours reported by all providers  
                 does not exceed authorized hours each month. (SOC 295)
               g.     Refer any individual the recipient would like to  
                 hire to the county IHSS office to complete the provider  
                 eligibility process. (SOC 295)
               h.     Notify the county IHSS office when the recipient  
                 hires or fires a provider. (SOC 295)
          
          This bill:

          1)Defines "authorized representative" to mean an individual who  
            is appointed in writing by an IHSS applicant or recipient to  








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            act in place or on behalf of the applicant or recipient for  
            the 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  
            process. 


          2)Permits an IHSS applicant or recipient to designate an  
            authorized representative.


          3)Provides that an IHSS applicant or recipient shall specify 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.  


          4)Provides that the authorized representative shall have a legal  
            responsibility to act in the client's best interest.


          5)Provides that 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.


          6)Permits the authorized representative, if so specified 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  
            under state law.


          7)Permits an individual with legal authority to act on behalf of  
            an IHSS applicant or recipient to designate someone other than  
            him or herself to act on behalf of the applicant or recipient.  
             










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          8)Prohibits persons prevented from being an IHSS provider due to  
            past criminal history, as well as providers who have been  
            granted criminal record exemptions from serving as an  
            authorized representative. Additionally prohibits individuals  
            found to have perpetrated a substantiated report of abuse of  
            neglect against a child or elder from serving as an authorized  
            representative.


          9)Directs the California Department of Social Services (CDSS),  
            in consultation with specified stakeholders to develop a  
            standardized statewide form and procedures related to the  
            designation of an authorized representative.


            FISCAL IMPACT
          
          According to an Assembly Appropriations analysis, there are  
          minor and absorbable costs to CDSS associated with the  
          development of the required form and minor costs to implement  
          the procedure.

           BACKGROUND AND DISCUSSION
          
          Purpose of the 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, CDSS 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  
          result, counties have often developed ad hoc internal processes  
          for designating authorized representatives for purposes of the  








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          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."

          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."

          IHHS Program


          The IHSS program is a county-administered, primarily Medi-Cal  
          benefit, which provides low-income individuals who are aged,  
          blind or disabled specified personal care and domestic services  
          that allow them to remain safely in their own homes and to avoid  
          institutionalization. 


          Allowable IHSS services include tasks like feeding, bathing,  
          bowel and bladder care, meal preparation and clean-up, laundry,  








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          and paramedical care. Currently, there are approximately 470,000  
          recipients of IHSS statewide, and, approximately 409,000  
          providers. Nearly three-fourths of the providers are family  
          members of care recipients and over half live in the home with  
          the recipient for whom they provide services. The average  
          provider cost is $12.62 per hour FY 15-16. 

          Eligibility for IHSS services is currently determined by county  
          social workers who conduct a standardized in-home assessment,  
          and periodic reassessments, of an individual's ability to  
          perform specific activities of daily living. Based on the  
          in-home assessment, recipients may be eligible for up to 283  
          hours of IHSS per month; however the average assessment is for  
          99 hours per month.


          Authorized representatives:  


          To apply, recipients must submit a three-page application and,  
          as of 2011, must receive a certification from a licensed health  
          care professional, as defined, declaring that the applicant or  
          recipient is unable to perform some activities of daily living  
          independently without which the applicant or recipient is at  
          risk of placement in out-of-home care. The recipient must also  
          undergo an assessment from the county social worker to determine  
          the needs of the recipient. Once approved, recipients are  
          responsible for hiring, firing, directing and supervising their  
          IHSS provider or providers, and for informing CDSS of provider  
          changes. Additionally, recipients receive frequent notifications  
          from CDSS, some involving detailed information and instructions  
          pertaining to eligibility and program changes. Further,  
          recipients must comply with eligibility rederminations and  
          unannounced home visits from county social workers intending to  
          prevent fraud.


          Current law provides for the establishment of an authorized  
          representative within Medi-Cal and the California Benefit  
          exchange in order to facilitate recipients' full participation  
          in the programs. Additionally, existing law provides for the  
          engagement of an authorized representative for developmentally  
          disabled individuals in accessing services, developing  
          individual program plans and in fair hearing and appeals  








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          procedures. 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. Additionally, CDSS 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.


            COMMENTS


          Existing statute (WIC 12300.4, 14186.35, and 12305.87)  
          pertaining to IHSS permits an authorized representative to act  
          as the IHSS employer for the purpose of requesting a public  
          authority or nonprofit consortium to assist an employer in  
          obtaining a criminal background check, to sign a criminal  
          records exclusion waiver request, and to direct the hours of  
          providers in certain circumstances. Numerous All-County Letters  
          released by CDSS have referred to the ability for authorized  
          representatives to act on behalf of recipients in a variety of  
          ways. However, this bill provides greater specification  
          regarding who may serve as an authorized representative and the  
          scope of their involvement in the care of the recipient.
          
            PRIOR VOTES
          
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          |Assembly Floor:                                            |76 - |
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          |Assembly Appropriations Committee:                         |15 - |
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          |Assembly Human Services Committee:                         |7 -  |
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            POSITIONS
                                          








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          Support:       
                    California Association of Public Authorities  
               (Co-Sponsor)
                    County Welfare Directors Association of California  
                    (Co-Sponsor)
                    AFSCME
                    California State Association of Counties

          Oppose:   
                    None received.


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