BILL ANALYSIS
SENATE HUMAN
SERVICES COMMITTEE
Senator Carol Liu, Chair
BILL NO: AB 1763
A
AUTHOR: Lieu
B
VERSION: April 8, 2010
HEARING DATE: June 22, 2010
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FISCAL: Public Safety/Appropriations
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CONSULTANT:
3
Park
SUBJECT
In-home supportive services
SUMMARY
Requires counties, nonprofit consortia, and public
authorities to accept the criminal background clearance of
an in-home supportive services (IHSS) provider that was
deemed an eligible provider by another county, nonprofit
consortium, or public authority. Requires DOJ to process
requests for notifications of subsequent arrests, as
specified.
ABSTRACT
Existing law:
1.Establishes the IHSS program to provide personal services
and home care for eligible low-income aged, blind, and
disabled individuals to enable recipients to remain in
their own homes and avoid institutionalization.
2.Provides for the oversight of the IHSS program by
Department of Social Services (DSS) at the state level,
Continued---
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and county administration at the local level. Specifies
the responsibilities of DSS, the Department of Health
Care Services, and the counties for various quality
assurance activities, including activities to ensure
program integrity. Permits counties to contract with a
nonprofit consortium or establish a public authority to
perform various duties in the employment of persons
providing IHSS services. Directs the public authority or
nonprofit consortium to assist recipients in finding IHSS
providers through the establishment of a provider
registry.
3.Establishes rules governing provider enrollment,
including the requirement that criminal background checks
must be completed for all IHSS providers, as specified,
as a condition of the provider's enrollment in the IHSS
program. Provides that criminal background checks shall
be conducted at the provider's expense. Authorizes DOJ to
assess a fee to cover the cost of furnishing criminal
history information.
4.Prohibits persons who have been convicted of fraud
against a government health care or supportive services
program, child abuse, or elder abuse within the preceding
10 years from providing IHSS services.
5.Requires DSS to convene periodic meetings in which
supportive services recipients, providers, advocates,
IHSS provider representatives, organizations representing
recipients, counties, public authorities, nonprofit
consortia, and other interested stakeholders may receive
information and have the opportunity to provide input to
DSS regarding required quality assurance, program
integrity, and program consistency efforts.
This bill:
1.Requires a county, an IHSS nonprofit consortium, or
public authority, to accept a clearance of an individual
that has been deemed eligible to receive payment for
providing IHSS services from another county, nonprofit
consortium or public authority.
2.Requires DOJ to process a request from a county, an IHSS
nonprofit consortium, or a public authority to receive
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notifications of subsequent arrests for a provider whose
criminal record clearance was originally processed by
another county, nonprofit consortium, or public authority
only if:
a. The request is submitted by the county, nonprofit
consortium, or public authority that is to be
substituted to receive notification;
b. The request is for an individual whose original
clearance was obtained to enroll or continue to be
enrolled as a provider in the IHSS program; and,
c. The request meets the data and format requirements
of a written agreement between DSS and DOJ.
3.Requires DSS, in consultation and coordination with
county welfare departments and other designated
stakeholders, and in accordance with statutorily required
periodic meetings with stakeholders, to establish
guidelines to provide counties with instructions to
consistently and accurately comply with the statutory
requirements for the IHSS program.
4.Makes legislative findings and declarations, including:
that the IHSS program has undergone substantial changes
over the past five years, that mechanisms have been put
in place to improve IHSS program integrity, that it is
important that counties have sufficient direction from
the state to implement these changes consistently, and
that it is important to minimize the need for IHSS
providers and recipients to provide the same information
multiple times.
FISCAL IMPACT
According to the Assembly Appropriations Committee
analysis, costs associated with DOJ processing the requests
and sending subsequent arrest notices to the new county
would be approximately $800,000 in the first year and
$700,000 per year thereafter. The analysis notes that DOJ
has the authority to charge fees to cover the cost of the
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background check. The analysis further notes that it is
presumed that a fee sufficient to cover the cost of the
bill would be charged to county welfare departments, and
that cost would be state-reimbursable (General Fund), as
this bill constitutes a new mandate for counties.
BACKGROUND AND DISCUSSION
Author's statement
The author states that, under ABx4 19 (Evans), Chapter 17,
Statutes of 2009, 4th Extraordinary Session, providers who
have previously cleared a background check and who provide
services in multiple counties must bear the cost of a new
criminal background check in each county. The author states
that this bill is needed to eliminate redundant background
check requirements on IHSS workers who provide services in
more than one county or whose recipient moves from one
county to another. The author believes that multiple
background checks are duplicative, unnecessary, and impose
an extreme hardship on already low-income workers. The
author believes that the bill will help resolve the problem
of providers being required to pay for more than one
criminal background check, while complying with the
requirement of ABx4 19 (Evans).
The IHSS program
The IHSS program provides in-home care to persons who
cannot safely remain in their homes without assistance.
Under the program, about 376,000 in-home care workers
provide services to more than 430,000 low-income elderly
and disabled persons. IHSS services include, but are not
limited to, housecleaning, meal preparation, laundry,
grocery shopping, personal care services (such as bowel and
bladder care, bathing, grooming and paramedical services),
accompaniment to medical appointments, and protective
supervision for people with mental impairments. The
program is credited with allowing many individuals to
remain in their own homes rather than being placed in more
costly nursing home care.
Generally, for almost all IHSS recipients, 50 percent of
program costs are paid by the federal government (through
the Medicaid program), about 32.5 percent by the state, and
17.5 percent by the county. (The American Recovery and
Reinvestment Act of 2009 temporarily increased the federal
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share of IHSS program costs from 50 percent to 61.6 percent
through December 2010.) Administration costs are shared 50
percent by the federal government, 35 percent by the state,
and 15 percent by the counties.
Legislative history on criminal background checks
According to committee analyses of prior bills dealing with
criminal background checks for IHSS workers, the principal
controversy has involved assessing the responsibility for
paying for the cost of fee charged by the Department of
Justice for its provision of criminal history
information.
In July 2009, ABX4 19 (Evans), Chapter 17, Statutes of
2009, 4th Extraordinary Session, was enacted in conjunction
with the 2009-10 Budget Act. Among its provisions, ABX4 19
requires criminal background checks to be completed for all
IHSS providers. The measure also specified that that
criminal background checks were to be conducted at the
provider's expense. The statute required new IHSS provider
applicant rules to go into effect by October 1, 2009. These
rules required providers to sign enrollment forms under
penalty of perjury, be fingerprinted and obtain background
checks, and participate in a program orientation. For
anyone who was already a provider on October 1, 2009, the
deadline to meet new requirements was July 1, 2010. (DSS
moved the initial deadline from October 1 to November 1,
2009, and required providers who were already on a registry
by November 1 to initiate the new enrollment process by
June 30 and complete it by December 31, 2010.) Providers
who were found to have been convicted of fraud against a
government health care or supportive services program,
child abuse, or elder abuse within the preceding 10 years,
through the background check, would be denied enrollment.
The Assembly Budget Committee and the Senate Budget
Subcommittee on Health and Human Services held a series of
hearings on issues surrounding the implementation ABx4 19,
including the provider enrollment process, as it pertained
to both prospective and existing providers. As of June 16,
2010, DSS reported that, as of the prior week,
approximately 330,000 IHSS providers have begun or
completed the new enrollment process. DSS estimates that
about 20,000 or six percent of existing providers haven't
yet begun the process. According to one source, an
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estimated 1,718 providers provide services in more than one
county. DSS does not track how often a provider moves from
one county to another.
Criminal background clearance
According to the County Welfare Directors Association,
currently a county (or other authorized entity) that
requests a criminal background check (criminal offender
record information) on an individual also has the right to
ask for notification if the person is subsequently
arrested, so the criminal background check can be re-opened
if a crime is alter committed. Current law prohibits
persons convicted of specified crimes from being paid as
providers, and counties are responsible for tracking
whether a subsequent arrest results in a disqualifying
conviction, upon which a provider would be disenrolled from
the program. CWDA indicates that the Case Management
Information and Payrolling System, or "CMIPS" computer
system, used by every county IHSS program to track case
information and process payments, has a field that
indicates a person has passed the criminal background
check.
DOJ indicates that when it receives a request for a
criminal background check (or criminal offender record
information), it provides notice of criminal offender
record information or notice of no criminal offender record
information. DOJ does not provide a "clearance" per se. A
dual notification option can be instigated when the initial
criminal offender record information search request is
received, and the fingerprint is present when the initial
response and subsequent arrest notifications are sent. With
a transfer process, a piece of paper with a name and other
numeric identifiers is provided to DOJ to modify the
information in the automated criminal history system. The
modification changes the subsequent arrest notification,
replacing one receiving entity with another. It is
important to note that this is a replacement, rather than
add-on, process. DOJ estimates that the cost of
transferring, i.e., replacing one entity with another in
the criminal history system, is currently more costly ($39)
than processing the initial request for criminal offender
record information ($32).
Cost of a criminal background check
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The DOJ charges $32 for its process. The cost for the
fingerprint image depends on the vendor and ranges from $10
to $25.
Related/prior legislation
ABX4 19 (Evans), Chapter 17, Statutes of 2009, 4th
Extraordinary Session, was a budget trailer bill
enacted in conjunction with the 2009-10 Budget Act.
Among its other provisions, ABX4 19 required criminal
background checks to be completed for all IHSS
providers as a condition of being placed or maintained
on a county's IHSS provider registry.
SB 868 (Ridley-Thomas), Chapter 447, Statutes of 2007,
clarified that public authorities and non-profit consortia
are authorized to require a criminal background check of
persons applying to be on the IHSS registry, and
prohibited the charging of a fee to those persons required
to submit to a criminal background check.
Arguments in support
The United Domestic Workers of America/AFSCME state that
criminal offender record information records cannot be
shared between counties due to privacy statutes that govern
sharing and dissemination of DOJ criminal history records.
UDW/AFSCME believe that the unintended consequences are
that IHSS providers who work in more than one county are
required to bear the cost of undergoing and submitting
multiple fingerprints and criminal record background
checks.
Service Employees International Union writes that the
measure will ease an administrative burden on counties and
county social workers and reduce redundant background check
requirements on IHSS workers who provide services in more
than one county or who move from one county to another. The
California Association of Area Agencies on Aging writes
that this measure gives the IHSS worker employment
flexibility in the workplace and lessens the financial
burden on the worker.
Aging Services of California writes that multiple criminal
background checks are not only excessive and unnecessary,
they impose an extreme hardship on already low-income
workers. Aging Services believes that with the state's
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financial picture growing increasingly uncertain, it is
critical to make every effort to preserve and secure home
and community-based services.
In a letter supporting this bill in concept, the County
Welfare Directors Association of California (CWDA) writes
that the 2009-10 budget agreement enacting provider
enrollment requirements was silent on whether a provider
who moves from one county to another must undergo an
entirely new criminal background check. CWDA states that
allowing a person who is cleared in one county to transfer
that clearance to a new county, without requiring an
entirely new background check and incurring a second set of
fees, makes sense, and points out that there is a parallel
in the foster care licensing statutes, which explicitly
provide that a foster parent or approved relative may
transfer their criminal background clearance from one
county to another. CWDA further points out that the foster
care statutes also authorize a county to request to receive
notification when a person who was cleared in another
county is subsequently arrested. CWDA states it will
continue to work with the author on the implementation
issues of such transfers.
PRIOR VOTES
Assembly Floor: 54 - 22
Assembly Appropriations:12 - 5
Assembly Human Services: 4 - 0
COMMENTS
1.Urgency. This is an urgency measure and requires a
two-thirds vote by both houses.
2.Double-referral. This bill is double-referred. Any
amendments agreed to in this committee will be adopted in
Senate Public Safety Committee.
3.Provider serves clients in more than one county. The bill
does not yet address the circumstance of a provider who
has clients in more than one county and would, therefore,
also be required to undergo multiple background checks.
DOJ indicates that making a modification to the automated
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criminal history system, which changes the subsequent
arrest notification cycle from one response (receiving)
entity to another, is a replacement process, and not an
additional entity process. Thus, it cannot provide
multiple notices on a provider's subsequent arrest
notifications. DOJ does indicate, however, that a request
for dual notification can be made when the initial
criminal offender record information search request is
made.
4.Author's amendments. The author states that, currently,
counties and public authorities enroll IHSS providers and
enter a providers' eligibility status into CMIPS. The
author proposes the following amendments, which would
allow other counties in which the provider works or is
moving to access CMIPS to see if that individual is
eligible to be a provider.
On page 7, beginning on line 19:
(F) (i) A nonprofit consortium or a public authority
authorized to secure a criminal background check
clearance pursuant to this section shall accept a
clearance for an individual who is not a registry
applicant described in clause (i) of subparagraph (A) who
has been deemed eligible to receive payment for providing
services pursuant to this article from another nonprofit
consortium, public authority, or county with criminal
background check authority pursuant to either Section
12305.86 or this section. The existence of a clearance
shall be determined by verification through the Case
Management Information and Payrolling System that another
county, nonprofit consortium, or public authority with
criminal background check authority pursuant to either
Section 12301.6 or this section has deemed the current
IHSS provider or prospective provider to be eligible to
receive payment for providing services pursuant to this
article.
On page 13, beginning on line 24
(e) (1) A county authorized to secure a criminal
background check clearance pursuant to this section shall
accept a clearance for an individual described in
subdivision (a) or (b) who has been deemed eligible to
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receive payment for providing services pursuant to this
article from another county, nonprofit consortium, or
public authority with criminal background check authority
pursuant to either Section 12301.6 or this section. The
existence of a clearance shall be determined by
verification through the Case Management Information and
Payrolling System that another county, nonprofit
consortium, or public authority with criminal background
check authority pursuant to either Section 12301.6 or
this section has deemed the current IHSS provider or
prospective provider to be eligible to receive payment
for providing services pursuant to this article.
5.Findings and declarations. Staff recommends the following
intent language in lieu of the findings and declarations
section.
SECTION 1. The Legislature finds and declares all of
the following:
(a) The In-Home Supportive Services (IHSS) program
provides people who are blind, disabled, or over 65
years of age with personal assistance and in-home
supportive services so they can live safely in their
homes and avoid unnecessary and expensive
institutional care.
(b) IHSS is an entitlement program that is regulated
by state and federal laws and regulations. To be
eligible, consumers must be assessed and found to be
aged (65 years of age or older), blind, or disabled
(as determined by the Social Security Administration)
and are unable to remain safely in their own home
without assistance. Recipients must also be low
income, meeting the income requirements consistent
with eligibility for Medi-Cal.
(c) Both federal and state laws require the IHSS
program to be administered in a manner that ensures
that services are comparable in amount, duration, and
scope in every county.
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(d) IHSS is a complex program and has undergone
substantial changes over the past five years.
Mechanisms have been put in place to improve IHSS
program integrity with the enactment of the IHSS
Quality Assurance Initiative (Chapter 229, Statutes of
2004) and the antifraud initiative (Chapter 17,
Statutes of 2009).
(e) It is important to ensure that counties have
sufficient direction from the state to implement these
changes consistently and to minimize the need for IHSS
providers and recipients to provide the same
information multiple times.
SECTION 1. It is the intent of the Legislature in
enacting this act to ensure a more efficient process
and eliminate unnecessary, duplicative criminal
background checks at the local level for the in-home
supportive services program.
POSITIONS
Support: United Domestic Workers of America/AFSCME
(co-sponsor)
Service Employees International Union
(co-sponsor)
Aging Services of California
American Civil Liberties Union
California Alliance for Retired Americans
California Association of Area Agencies on Aging
California Foundation for Independent Living
Centers
County Welfare Directors Association of
California
Oppose:None received
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