BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1436| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 1436 Author: Burke (D) Amended: 8/31/15 in Senate Vote: 21 SENATE HUMAN SERVICES COMMITTEE: 5-0, 6/23/15 AYES: McGuire, Berryhill, Hancock, Liu, Nguyen SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/27/15 AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen ASSEMBLY FLOOR: 76-0, 5/26/15 (Consent) - See last page for vote SUBJECT: In-home supportive services: authorized representative SOURCE: California Association of Public Authorities County Welfare Directors Association of California DIGEST: This bill 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, as specified. ANALYSIS: 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 AB 1436 Page 2 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.) 3) Provides that recipients of IHSS 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) This bill: 1) Defines "authorized representative" to mean an individual who is designated in writing, on a form developed by the California Department of Social Services, by an IHSS applicant or recipient to accompany, assist, or 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. 2) Permits an IHSS applicant or recipient to designate an individual to act as an authorized representative. 3) Requires the form, to be developed by CDSS, to do all of the following: a) Specify an effective time period, to be determined by CDSS. b) Specify the responsibilities to be performed by the authorized representative. c) May be revoked or changed by the applicant or recipient at any time. 4) Provides that the authorized representative designation pursuant to this section shall not authorize representation AB 1436 Page 3 for an administrative hearing conducted by CDSS. 5) Provides that the authorized representative shall have a legal responsibility to act in the client's best interest, and shall not have any other power to act on behalf of the applicant or recipient, except as specified. 6) Provides that an applicant or recipient who has legal representation, as specified, that includes decision-making authority reasonably believed to be related to the program, shall not be required to complete the authorized representative form, except for the purpose of signing timesheets. 7) Permits the authorized representative, if specified by the IHSS recipient, to sign timesheets or other provider-related documents 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 authority to act on behalf of the recipient as described in #6 above. 8) Prohibits an individual from serving as an authorized representative who is prevented from being an IHSS provider due to specified criminal convictions, including fraud, serious or violent felonies, sex offenses, and other crimes unless that individual is a person with legal authority described in #6 above. 9) Directs CDSS, in consultation with the California Department of Health Care Services, the County Welfare Directors Association of California (CWDA) and specified representatives to develop a standardized statewide form and procedures for effectuating the designation of an authorized representative. 10)Requires the county to retain the form in the applicant or recipient's in-home supportive services case file, as specified. 11)Permits CDSS to implement and administer the provisions of authorized representatives through all-county letters or AB 1436 Page 4 similar instructions until regulations are adopted. Background 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 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 CWDA, this bill 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. 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." AB 1436 Page 5 IHSS 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, 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. To apply for the program, 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. Authorized representatives. Existing law provides for the AB 1436 Page 6 establishment of an authorized representative within Medi-Cal and the California Health 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 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. Additionally, 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. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: No According the Senate Appropriations Committee, this bill will incur one-time costs potentially in excess of $50,000 (General Fund) to CDSS to develop and adopt regulations. Additionally, one-time costs to develop the standardized statewide form are estimated to be minor. This bill potentially increases administrative costs (Federal Fund/General Fund) for counties to review agreement forms, verify eligibility of authorized representatives for IHSS cases not requiring a written AB 1436 Page 7 appointment, and potentially issue additional notices similar to the process in the Medi-Cal program. Further, this bill potentially increases IHSS program costs (Federal Fund/General Fund) related to more successful enrollment and provision of services from assistance in the application and redetermination process, to the extent representatives are able to better represent and/or communicate the actual needs of applicants and recipients. The analysis notes that increases in IHSS program costs could be offset in whole or in part to the extent individuals would have otherwise not been able to remain in their own homes but would require more costly facility care. SUPPORT: (Verified8/28/15) California Association of Public Authorities (co-source) County Welfare Directors Association of California (co-source) AFSCME Alameda County Board of Supervisors Board of Supervisors of Contra Coast County California State Association of Counties County of Santa Cruz Board of Supervisors Rural Counties Representatives of California San Francisco Human Services Agency Santa Cruz County Board of Supervisors Stanislaus County, Community Services Agency Tehama County Department of Social Services UWD/AFSCME Local 3930 Ventura County Board of Supervisors OPPOSITION: (Verified8/28/15) None received ASSEMBLY FLOOR: 76-0, 5/26/15 AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bonilla, AB 1436 Page 8 Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins NO VOTE RECORDED: Bloom, Chávez, Harper, Mathis Prepared by:Sara Rogers / HUMAN S. / (916) 651-1524 8/30/15 19:27:52 **** END ****