BILL ANALYSIS Ó SENATE COMMITTEE ON HUMAN SERVICES Senator McGuire, Chair 2015 - 2016 Regular Bill No: SB 199 ----------------------------------------------------------------- |Author: |Hall | ----------------------------------------------------------------- |----------+-----------------------+-----------+-----------------| |Version: |February 10, 2015 |Hearing |March 24, 2015 | | | |Date: | | |----------+-----------------------+-----------+-----------------| |Urgency: |No |Fiscal: |Yes | ---------------------------------------------------------------- ----------------------------------------------------------------- |Consultant|Sara Rogers | |: | | ----------------------------------------------------------------- Subject: In-home supportive services: reading services for blind and visually impaired recipients. SUMMARY This bill expands the scope of services available under the In Home Supportive Services (IHSS) program to include assistance in reading and completing financial and other documents for a recipient who is blind, when that assistance is necessary for the recipient to remain in his or her home, and limits the service to two hours per month. Additionally, this bill provides that those services shall be implemented beginning on January 1, 2017, only if federal financial participation is available, and that states and counties shall be immune from liability associated with the delivery of the above services. Existing law: 1.Establishes the In-Home Supportive Services program to provide in-home domestic supportive and personal care services for aged, blind or disabled individuals living at or below the poverty level for the purpose of enabling IHSS consumers to avoid institutionalization and remain safely in their homes with supportive services. (WIC 12300 et seq.) 2.Defines the scope of supportive services available under the IHSS program to include heavy cleaning, personal care SB 199 (Hall) PageB of? services, accompaniment by a provider when needed during necessary travel to health-related appointments or to alternative resource sites, yard hazard abatement, protective supervision, teaching and demonstration directed at reducing the need for other supportive services, and paramedical services which make it possible for the recipient to establish and maintain an independent living arrangement. (WIC 12300 (b)) 3.Defines the scope of personal care services available under the IHSS program to include: Assistance with ambulation. Bathing, oral hygiene, and grooming. Dressing. Care and assistance with prosthetic devices. Bowel, bladder, and menstrual care. Repositioning, skin care, range of motion exercises, and transfers. Feeding and assurance of adequate fluid intake. Respiration. Assistance with self-administration of medications. (WIC 12300 (c)) 1.Requires the California Department of Social Services (CDSS), in consultation with county welfare departments to establish and implement statewide hourly task guidelines and instructions to provide counties with a standard tool for consistently and accurately assessing service needs and authorizing service hours to meet those needs. (WIC 12301.2) 2.Permits certain IHSS recipients with high care needs, as specified, to receive up to 283 hours of IHSS services per month. (WIC 12303.4(b)) 3.Requires county welfare agencies to provide eligible visually impaired or blind IHSS recipients information and referral to non-profit services that provide reading services. (WIC 12304.6) SB 199 (Hall) PageC of? 4.Provides that counties and the state shall be immune from any liability resulting from the administration of the In-Home Supportive Services program due to the negligence or intentional torts of the individual provider. (WIC 12301.6 and 12300.5) 5.Pursuant to federal law, defines legal blindness as persons with central visual acuity of 20/200 or less in the stronger eye, while wearing a correcting lens or glasses; or a limitation in the field of vision in the better eye, so that: There is contraction of peripheral visual fields to 10 degrees from the point of fixation, or The widest diameter of the visual field subtends an angle no greater than 20 degrees, or There is a contraction of peripheral visual fields to 20 percent or less visual field efficiency (Title XVI of the Social Security Act Sec. 1614 (42 U.S.C. 1382c)) This bill: 1.Expands the scope of personal care services provided within the IHSS program to include two hours of assistance per month in reading and completing financial and other documents for a recipient who is blind, when that assistance is necessary for the recipient to remain in his or her home, or abode of his or her own choosing, as defined by CDSS. 2.Requires the Director of Health Care Services, by January 1, 2017, to seek any federal approvals necessary to ensure that Medicaid funds may be used in implementing the bill. 3.Implements provisions of this bill beginning in January 1, 2017, only if federal financial participation is available. SB 199 (Hall) PageD of? 4.Provides that states and counties shall be immune from liability, including negligence or intentional torts of providers, associated with the delivery of the assistance services pursuant to this bill. 5.Permits CDSS to implement the bill through all-county letters or similar instructions from the director. 6.Requires CDSS to adopt regulations by January 1, 2018, and provides that the initial adoption, amendment, or repeal of a regulation pursuant to the bill is deemed to address an emergency for the purposes of enacting emergency regulations. 7.Requires CDSS to adopt final regulations on or before January 1, 2019. FISCAL IMPACT A prior fiscal analysis of AB 1703 in the Assembly Appropriations Committee projected that if 50 percent of the approximately 10,000 visually impaired or blind individuals receiving IHSS services were authorized for this service and required about 1.5 hours per month in reading assistance, the cost would be about $900,000 in additional wages annually. BACKGROUND AND DISCUSSION According to the author, about two percent of IHSS consumers are legally blind, however reading and document completion assistance is not a covered service under IHSS. The author states that reading assistance is critical for consumers who need to know about notices that may affect their ability to live independently, including insurance coverage, prescription drug labels, housing notifications or other time-sensitive information that may require action. Without assistance, the author states that those with visual impairments may be unaware of critical information and developments affecting their health and well-being for days or weeks until they find a friend, SB 199 (Hall) PageE of? relative or alternative program to read the documents to them. The California Association of Public Authorities (CAPA), writes that the current requirement that county welfare departments provide visually impaired IHSS consumers with information and referrals to community public and nonprofit entities that provide reading services is inadequate to protect persons with visual impairments as services may not be provided in a timely manner. CAPA writes that consumers may suffer severe negative consequences such as termination of financial and medical benefits if important deadlines to file documents and medical verifications are not met. In addition, CAPA writes that additional consequences of not paying bills promptly can include not only additional financial hardships, but loss of essential utility services. In Home Supportive Services Program (IHSS) The IHSS program was established in 1973 as an innovative alternative to institutional care, and evolved in the context of a growing "independent living" civil rights movement led by persons with disabilities.<1> The program has experienced continuous growth following the U.S. Supreme Court decision Olmstead v. L.C. in 1999 which established the rights of people with disabilities to receive services in the most integrated setting possible to "provide individuals with disabilities opportunities to live their lives like individuals without disabilities"<2> under the American with Disabilities Act. The IHSS program is operated as benefit under the Medi-Cal program, providing in-home services to more than 460,000 qualified low-income individuals who are aged, blind, or --------------------------- <1> http://www.cicaihss.org/ihss-public-authority-history <2> Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. June 22 2011. http://www.ada.gov/olmstead/q&a_olmstead SB 199 (Hall) PageF of? disabled. Currently, of approximately 464,402 IHSS recipients, an estimated two percent of consumers are visually impaired or blind (approximately 10,153 consumers). County welfare agencies administer the program under CDSS oversight and county social workers determine eligibility and assess eligible consumers to determine the allowable services and number of allotted hours following a standardized in home assessment. Legal Blindness and the Americans with Disabilities Act Title 16 of the Social Security Act defines legal blindness a central visual acuity of 20/200 or less in the stronger eye, while wearing a correcting lens or glasses; or a limitation in the field of vision in the better eye, so that: There is contraction of peripheral visual fields to 10 degrees from the point of fixation, or The widest diameter of the visual field subtends an angle no greater than 20 degrees, or There is a contraction of peripheral visual fields to 20 percent or less visual field efficiency (Title XVI of the Social Security Act Sec. 1614 (42 U.S.C. 1382c))<3> Titles II and III of the Americans with Disabilities Act (ADA) mandate that government and private sector organizations must provide print materials in an alternative format for people with visual impairment. Specifically, Section 36.303, Title III of the ADA provides, "A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities." These print materials can include, but not limited to, billing statements, financial statements, personnel manuals and business cards. According to the United States Department of Justice, Civil Rights Division, in practice this --------------------------- <3> Title XVI of the Social Security Act Sec. 1614 (42 U.S.C. 1382c)) "Meaning of Terms" SB 199 (Hall) PageG of? means that the ADA requires that effective communication not exclude people with disabilities -- which in the case of visually impaired or blind persons may require businesses and government to provide information verbally or in braille.<4> However, it states the law does not require any measure that would cause an undue financial or administrative burden. Braille and Visual Aid Technologies The National Braille Press states that braille literacy rates for school-age blind children have declined from greater than 50 percent (40 years ago) to only 12 percent today.<5> This may be compared to a 50 percent literacy rate among blind individuals in the 1960s. Academic research on braille literacy suggests that: "One of the greatest reasons for this decline in Braille literacy has been the controversy of whether or not to teach Braille when a blind child has some residual vision, in which case it has become more popular to rely on magnification equipment or large print. Children with some residual vision account for approximately 85% of blind children because they are blind by the legal definition (i.e., vision is worse than 20/200 and cannot be improved with corrective lenses) but have some vision remaining. Certain degenerative conditions, such as glaucoma and degenerative myopia, have an onset early in childhood with vision worsening over time. Low-vision students, in particular those with degenerative visual impairments, are at risk for not receiving appropriate braille instruction ------------------------- <4> United States Department of Justice, Civil Rights Division. "Myths and Facts about the Americans with Disabilities Act." http://www.ada.gov/archive/mythfact.htm <5> National Braille Press. http://www.nbp.org/ic/nbp/braille/needforbraille.html SB 199 (Hall) PageH of? while some level of sight remains.<6> An ADA handbook published by the University of California notes that not all blind people read braille and that "typically, people who have lost their vision later in life tend to rely on speech output as their access strategy." The handbook notes alternative adaptive equipment, such as magnified display of a computer screen, screen reader software, braille input devices and other equipment may be useful, though costly and inaccessible for low-income individuals with visual impairments or blindness, particularly among those whose sole source of income is SSI/SSP. Prior Legislation: AB 1703 (Hall, 2014) was broader in scope but substantially similar to this bill, and was held in the Senate Appropriations Committee. AB 238 (Beall, 2007) was broader in scope but substantially similar to this bill, and was vetoed by Governor Schwarzenegger. --------------------------- <6> K.To`ussaint and J.Tiger. Teaching Early Braille Literacy Skills within a Stimulus Equivalence Paradigm to Children with Degenerative Visual Impairments J Appl Behav Anal. 2010 Summer; 43(2): 181-194. SB 199 (Hall) PageI of? The Governor is his veto message of AB 238 stated: I strongly support the In-Home Supportive Services (IHSS) program which provides services to low-income aged, blind or disabled persons so they can remain safely in homes. My Administration has worked hard to secure more than 1.7 billion in federal funds to protect these important services. However, I cannot support expanding the program's scope to include reading services. This expansion would add more than one million dollars in new costs at a time of ongoing budget challenges. We must balance our need for important program services with our fiscal reality. For these reasons, I am returning AB 238 without my signature. COMMENTS Existing law under Welfare and Institutions Code Sections 12301.6 and 12300.5 clearly provide that counties and the state shall be immune from any liability resulting from the administration of the In-Home Supportive Services program due to the negligence or intentional torts of the individual provider. This bill, in response to concerns raised by CDSS regarding prior legislation on this topic, adds a new immunity of liability provision that appears to be duplicative of existing law. California Advocates for Nursing Home Reform (CANHR) writes in SB 199 (Hall) PageJ of? opposition that financial abuse of elders and individuals with disabilities is a prevelant and growing problem in California. CANHR writes that the immunity from liability provisions of this bill would deprive victims of such abuses from remedies and restitution. Additionally, the Consumer Attorneys of California, though not opposing the bill, express concerns that "current law seems to already address public entity liability" and that the duplicative provisions included in this bill may cause confusion and lead to litigation. Staff recommends the author and sponsors engage in further discussions with CDSS regarding the need for this provision. In the meantime, staff recommends the bill be amended to clarify that immunity is pursuant to existing law: (k) Pursuant to Section 12301.6 and Section 12300.5, the state and counties shall be immune from any liability, including negligence or intentional torts of providers, associated with the delivery of the service specified in subdivision (b) that includes assistance in reading and completing financial documents for recipients who are blind. POSITIONS Support: California Council of the Blind (Sponsor) UDW/AFSCME Local 3930 (Co - Sponsor) The California Association of Public Authorities for IHSS (Co - Sponsor) American Federation of State, County and Municipal Employees California Communities United Institute Oppose: California Advocates for Nursing Home Reform -- END -- SB 199 (Hall) PageK of?