BILL ANALYSIS Ó
SENATE COMMITTEE ON HUMAN SERVICES
Senator McGuire, Chair
2015 - 2016 Regular
Bill No: SB 199
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|Author: |Hall |
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|Version: |February 10, 2015 |Hearing |March 24, 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: 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
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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)
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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.
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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,
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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
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<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
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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
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<3> Title XVI of the Social Security Act Sec. 1614 (42 U.S.C.
1382c)) "Meaning of Terms"
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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
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<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
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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.
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<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.
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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
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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
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