BILL ANALYSIS                                                                                                                                                                                                    



          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?