BILL ANALYSIS Ó
-----------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 1930|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
-----------------------------------------------------------------
THIRD READING
Bill No: AB 1930
Author: Lackey (R)
Amended: 8/1/16 in Senate
Vote: 21
SENATE HUMAN SERVICES COMMITTEE: 4-0, 6/14/16
AYES: McGuire, Hancock, Liu, Nguyen
NO VOTE RECORDED: Berryhill
SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/11/16
AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen
ASSEMBLY FLOOR: 77-0, 6/1/16 - See last page for vote
SUBJECT: In-home supportive services: family caregivers:
advisory committee
SOURCE: UDW/AFSCME Local 3930
California Association of Public Authorities
DIGEST: This bill 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.
ANALYSIS:
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
AB 1930
Page 2
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
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
AB 1930
Page 3
to describe the availability of, and barriers to,
employment-based supports and protections, including, but not
limited to, federal Social Security benefits and state
unemployment insurance 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
11 individuals, and further requires those individuals to
represent specified entities, including, but not limited to,
academic entities and nonprofit organizations, the California
Department of Social Services (CDSS), IHSS public authorities,
labor organizations that represent IHSS providers, and IHSS
providers and consumers.
3)Permits the Governor to appoint not more than nine individuals
to the advisory committee and requires that individuals
appointed by the Governor may include only representatives
from specified groups.
4)Requires the Speaker of the Assembly and the Senate Committee
on Rules to each appoint one individual to the advisory
committee, as specified.
5)Requires that appointments made to the advisory committee
include representatives from all groups, as specified.
6)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.
AB 1930
Page 4
7)Provides that the provisions of the bill shall remain in
effect only until January 1, 2019, and as of that date is
repealed, unless a later enacted statute, that is enacted
before January 1, 2019, deletes or extends that date.
Background
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
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 percent of them are relatives and about 50
percent are live-in providers.
IHSS Exclusion from certain employment benefits
AB 1930
Page 5
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
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
AB 1930
Page 6
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, some people 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/Prior Legislation
SB 1036 (Senate Budget and Fiscal Review Committee, Chapter 45,
Statutes of 2012) established the IHSS Statewide Authority for
purposes of collective bargaining.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
According to the Senate Appropriations Committee:
Estimated costs to the CDSS of $373,000 in fiscal year 2016-17
and $331,000 in fiscal year for administrative costs to
support the advisory group, assuming the committee will meet
quarterly. This includes three new staffing positions to
assist in staffing the committee and to prepare the
peer-reviewed report. (GF)
AB 1930
Page 7
Costs to CDSS of $97,000 for fiscal years 2016-17 and 2017-18
for transportation and meeting expenses for committee members,
county representatives, IHSS providers, IHSS recipients and
their providers and for legal research and consultation. (GF)
Significant cost to CDSS of $250,000 for fiscal years 2016-17
and 2017-18 for an external contract with the University of
California to complete the study and peer-reviewed report.
(GF)
Likely significant cost pressure to implement any
recommendations that the advisory committee produces.
SUPPORT: (Verified8/12/16)
UDW/AFSCME Local 3930 (co-source)
The California Association of Public Authorities (co-source)
American Federation of State, County and Municipal Employees
California Alliance for Retired Americans
California Health Advocates
Centro Laboral de Graton
Coalition for Humane Immigrant Rights of Los Angeles
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 California Commission on Aging
The California Domestic Workers Coalition
The California Labor Federation
The Coalition of Welfare Rights Organizations
The Instituto de Educacion Popular del Sur de California
The Personal Assistance Services Council
The Los Angeles County IHSS Public Authority
OPPOSITION: (Verified)8/12/16
AB 1930
Page 8
California Department of Finance
ARGUMENTS IN SUPPORT: 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 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.
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 individuals who are
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.
ARGUMENTS IN OPPOSITION: The Department of Finance is
"opposed to this bill because it results in additional General
Fund costs that are not included in the Administration's current
fiscal plan."
ASSEMBLY FLOOR: 77-0, 6/1/16
AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker,
Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke,
Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley,
Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Gallagher,
Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez,
Gonzalez, Gordon, Gray, Grove, Hadley, Roger Hernández,
Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine,
AB 1930
Page 9
Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty,
Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell,
Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas,
Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner,
Waldron, Weber, Wilk, Williams, Wood, Rendon
NO VOTE RECORDED: Dahle, Beth Gaines, Harper
Prepared by: Taryn Smith / HUMAN S. / (916) 651-1524
8/16/16 9:33:55
**** END ****