BILL ANALYSIS Ó
SENATE COMMITTEE ON HUMAN SERVICES
Senator McGuire, Chair
2015 - 2016 Regular
Bill No: AB 1930
-----------------------------------------------------------------
|Author: |Lackey |
-----------------------------------------------------------------
|----------+-----------------------+-----------+-----------------|
|Version: |May 27, 2016 |Hearing |June 14, 2016 |
| | |Date: | |
|----------+-----------------------+-----------+-----------------|
|Urgency: |No |Fiscal: |Yes |
----------------------------------------------------------------
-----------------------------------------------------------------
|Consultant|Taryn Smith |
|: | |
-----------------------------------------------------------------
Subject: In-home supportive services: family caregivers:
advisory committee
SUMMARY
Establishes the In-Home Supportive Services (IHSS) Family
Caregiver Benefits Advisory Committee for the purpose of
studying and providing a report on employment-based supports and
protections for IHSS providers.
ABSTRACT
Existing law:
1)Establishes the IHSS program to provide defined supportive
services for aged, blind, or disabled persons who are unable
to perform the services themselves and who cannot safely
remain in their homes unless such services are provided. Those
supportive services include, but are not limited to, domestic
services, heavy cleaning, personal care services, and
accompaniment during travel to health-related appointments or
to alternative resource sites, yard hazard abatement,
protective supervision, and paramedical services, as defined.
(WIC 12300 et seq.)
2)Establishes county authority to contract with a nonprofit
consortium or a public authority for the delivery of IHSS
supportive services. Requires those nonprofit consortia and
public authorities to establish a registry in order to assist
AB 1930 (Lackey) Page 2
of ?
IHSS recipients with hiring providers, and to investigate the
background and qualifications of potential providers, as
specified. (WIC 12301.6)
3)Requires that the application for IHSS services shall contain
a notice to the recipient of services that his or her provider
or providers will be given written notice of the recipient's
authorized services, and full number of services hours
allotted to the recipient. The application shall inform
recipients of the Medi-Cal toll-free telephone fraud hotline
and Internet Web site for reporting suspected fraud or abuse
in the provision or receipt of supportive services. (WIC
12301.15)
4)Provides that an authorized recipient of IHSS supportive
services shall direct those authorized services, and that
authorized services shall be performed by a provider or
providers within a workweek and in a manner that complies with
the requirements, as specified. (WIC 12300.4)
5)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)
This bill:
1)Creates the IHSS Family Caregiver Benefits Advisory Committee
to describe the availability of, and barriers to,
employment-based supports and protections, including, but not
limited to, federal Social Security benefits, and to study the
impact that lack of access to these supports and protections
has on IHSS providers who care for specified family members,
and their communities.
2)Requires the advisory committee to be made up of not more than
15 individuals, and further requires those individuals to
represent specified entities, including, but not limited to,
academic entities and nonprofit organizations, the California
AB 1930 (Lackey) Page 3
of ?
Department of Social Services (CDSS), IHSS public authorities,
labor organizations that represent IHSS providers, and IHSS
providers and consumers.
3)Requires the Governor, the Speaker of the Assembly, and the
Senate Committee on Rules to each, after consulting with labor
organizations that represent IHSS providers, appoint not more
than five members to the advisory committee.
4)Requires, by January 1, 2018, the advisory committee to
provide a peer-reviewed report to designated Legislative
committees that includes a summary of findings and
recommendations on steps the state could take to ensure that
all IHSS providers who provide care for specified family
members have access to employment-based supports and
protections, as specified.
FISCAL IMPACT
According to the Assembly Appropriations Committee, this bill
may result in unknown costs, but likely in the range of $70,750
to $152,000 (General Fund) to staff the advisory committee and
produce the report. The analysis notes that the bill is silent
on where the advisory committee will be housed, but it will
likely require one to two personnel years, given the complexity
of the study required. Per the analysis, there will also likely
be significant cost pressure to implement any recommendations.
BACKGROUND AND DISCUSSION
Purpose of the bill:
According to the author, individuals who provide services
through the IHSS program to their child or spouse are not
allowed to contribute towards social security, Medicare, or
state unemployment insurance (UI). This means that when they
retire, if they become disabled, or if they lose their jobs,
these hard-working caregivers do not have access to our nation's
AB 1930 (Lackey) Page 4
of ?
most important programs for seniors and the uninsured, per the
author. The author also states that this situation has resulted
in terrible economic hardship for tens of thousands of IHSS
workers who are at or near retirement age. It also results in
indirect costs to taxpayers as hard-working seniors are forced
into poverty and reliance on state public assistance programs,
according to the author.
AB 1930 establishes an advisory committee to study how the
exclusion from certain employment-based supports and
protections, such as Social Security, impacts the economic
security of individuals who provide these critical services and
their communities. This committee includes policy experts from
the field and the administration as well as those directly
impacted by the exclusion. AB 1930 would require the committee
to provide a peer-reviewed report to the Legislature by January
1, 2018 with a summary of the findings and recommendations on
steps the state can take to ensure that all IHSS providers who
provide supportive services to a spouse or child have access to
all employment-based supports and protections, including federal
Social Security benefits.
In Home Support Services
The IHSS program, which is administered by CDSS, provides
in-home services for low-income individuals who are at least 65
years of age, blind and/or disabled and unable to perform the
services themselves and who cannot safely remain in their homes
unless these services are provided. IHSS recipients need those
services in order to avoid out-of-home care.
IHSS services may include domestic and related services, like
housework, meal preparation, laundry and shopping; personal care
services; accompaniment to medical appointments; protective
supervision for recipients who may place themselves at risk for
injury; and hazard or accident and paramedical services when
directed by a physician.
County welfare departments notify IHSS recipients which services
are approved, how much time is authorized for each service, and
the total authorized monthly hours. IHSS recipients are
responsible for hiring, firing, directing and supervising their
IHSS provider. These responsibilities include some
AB 1930 (Lackey) Page 5
of ?
administrative duties, such as scheduling and signing
timesheets. However, CDSS handles IHSS payroll.
Providers must complete an enrollment process, including
submitting fingerprints for a criminal background screening and
participating in an orientation prior to receiving payment for
services.
Approximately 464,000 Californians receive IHSS and about 99% of
recipients receive IHSS as a Medicaid benefit. There are
currently about 433,400 IHSS providers in the state.
Approximately 69% of them are relatives and about 50% are
live-in providers.
IHSS Exclusion from certain employment benefits
Access to some employment-based benefits and protections are
limited for certain IHSS providers, particularly if a provider
is related to the IHSS consumer. According to IHSS provider
training materials from CDSS, "some family members, especially
spouses and parents of consumers, are not eligible to have
Social Security (FICA) funds withheld from paychecks" and
"Unemployment Insurance benefits may be available to you if you
are not the parent or spouse of your employer/recipient and
become unemployed, able and available to work and you meet
certain eligibility requirements."
CDSS cites existing state and federal laws as the reason why
spouses and parents are generally not subject to Social
Security, Medicaid and unemployment benefits.
Existing federal law requires employers to withhold and match
Social Security and Medicare taxes from an employee's wages,
which are then used to fund the employee's future Social
Security and Medicare benefits. However, wages earned while
providing IHSS services by a spouse, child or parent are not
subject to these withholdings, making these providers ineligible
to receive such benefits.
Specifically, the Federal Insurance Contribution Act (FICA)
requires employers to withhold taxes from the wages an
individual receives for employment. The employer matches the
AB 1930 (Lackey) Page 6
of ?
amount of these withholdings, which together are used to fund
the employee's future Social Security and Medicare benefits.
The Internal Revenue Code (IRC) section 3121 (b) defines
"employment" as any service an employee performs for an
employer. The IRC contains an exception to this definition for
family employment (IRC section 3121(b) (3)). The "family
employment exception" applies to service in a private home "in
the employ of an individual's son, daughter, or spouse." In
those cases, according to the IRS, no actual employment
relationship exists.
As a result, the CDSS has determined that wages paid through
IHSS to parent or spouse providers fall under the "family
employment exception" and therefore are exempt from employment
taxes such as FICA and state UI.
Additionally, Section 631 of the California Unemployment
Insurance Code states, in part, that "Employment" does not
include service performed by ? an individual in the employ of
his (or her) son, daughter, or spouse. Therefore, these family
employees are excluded from Unemployment Insurance (UI),
Employment Training Tax, and State Disability Insurance
coverage.
In order to change the benefits to this subset of IHSS workers,
changes in federal and state law are likely necessary.
According to the author, "Those who oppose this bill will argue
that this is a federal issue and that any remedy for this
situation can only be pursued on a federal level. Though we
agree that this problem originates in federal code, we believe
there may be steps the state can take to resolve the issue or,
at the least, mitigate the negative economic impacts. The first
step would be to bring together policy experts, lawmakers, and
individuals directly impacted by this problem in order to
thoroughly analyze and understand it. After studying the
problem, it will be possible to determine what else the state
can do to address this issue."
Related legislation:
SB 1036 (Senate Budget and Fiscal Review Committee, Chapter 45,
Statutes of 2012) established the IHSS Statewide Authority for
purposes of collective bargaining.
AB 1930 (Lackey) Page 7
of ?
COMMENTS
The bill creates an advisory committee but is silent on where it
will be housed and who will staff it. The bill also requires
the Governor, the Assembly Speaker and the Senate Rules
Committee to each appoint up to five members of the advisory
committee, but lacks direction on coordination, vacancies, and
other details, except to require appointing authority to consult
with labor organizations that represent IHSS workers. Therefore,
the committee recommends the following amendments:
WIC 12335
(a) There is hereby established , within the State Department of
Social Services, the In-Home Supportive Services Family
Caregiver Benefits Advisory Committee, for the purpose of
describing the availability of, and barriers to accessing,
employment-based supports and protections, including, but not
limited to, federal Social Security benefits, and studying the
impact of the lack of access to these supports and protections
on the lives and communities of individuals who provide the
supportive services described in this article to a spouse or as
the parent of a recipient child.
(b) The advisory committee shall be comprised of no less than 8
and not more than 11 15 individuals . The Governor may appoint up
to 9 members , and shall include representatives from the
following groups:
(1) Academic entities and nonprofit organizations with expertise
in the subject matter of the report described in subdivision
(d).
(2) The State Department of Social Services.
(3) The Department of Finance.
(4) The Legislative Analyst's Office.
( 3 5 ) County governments.
( 4 6 ) IHSS public authorities.
( 5 7 ) Individuals who are current providers of personal
assistance services funded as in-home supportive services
pursuant to this article and who are a parent or spouse of the
AB 1930 (Lackey) Page 8
of ?
person receiving those services.
( 6 8 ) Individuals who are current or past consumers of personal
assistance services provided through the IHSS program.
( 7 9 ) Labor organizations that represent IHSS providers that are
the designated representatives of providers of personal
assistance services funded as IHSS pursuant to this article .
(c) The Governor, the Speaker of the Assembly and the Senate
Committee on Rules shall each appoint not more than five members
one individual to the advisory committee. Prior to appointing
members to the advisory committee, the Governor, the Speaker of
the Assembly and the Senate Committee on Rules shall consult
with labor organizations that represent IHSS providers regarding
the appointments.
PRIOR VOTES
-----------------------------------------------------------------
|Assembly Floor: |77 - |
| |0 |
|-----------------------------------------------------------+-----|
|Assembly Appropriations Committee: |20 - |
| |0 |
|-----------------------------------------------------------+-----|
|Assembly Human Services Committee: |6 - |
| |0 |
| | |
-----------------------------------------------------------------
POSITIONS
Support:
UDW/AFSCME Local 3930 (Co-Sponsor)
California Association of Public Authorities (Co-Sponsor)
AB 1930 (Lackey) Page 9
of ?
California Alliance for Retired Americans (CARA)
California Health Advocates
Centro Laboral de Graton
Coalition for Humane Immigrant Rights of Los Angeles
(CHIRLA)
Congress of California Seniors
GABRIELA San Francisco
Justice in Aging
National Employment Law Project
Pilipino Workers Center of Southern California
San Francisco Senior Disability Action
The American Federation of State, County and Municipal
Employees (AFSCME)
The California Commission on Aging
The California Domestic Workers Coalition
The California Labor Federation
The Coalition of Welfare Rights Organizations (CCWRO)
The Instituto de Educacion Popular del Sur de California
(IDEPSCA)
The Personal Assistance Services Council, the Los Angeles
County IHSS Public Authority
Oppose:
None.
-- END --