BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 1763 (Lieu) 3
As Amended April 8, 2010
Hearing date: June 29, 2010
Welfare and Institutions Code (URGENCY)
MK:mc
IN-HOME SUPPORTIVE SERVICES
HISTORY
Source: United Domestic Providers of America/AFSCME
American Federation of State, County and
Municipal Employees, AFL-CIO
Prior Legislation: ABx4 19 (Evans) - Chapter 17, Statutes 2009,
4th Extraordinary Session
SB 692 (Ashburn) - Chapter 2, Statutes 2008
AB 2486 (Ridley-Thomas) - 2006, vetoed
AB 472 (Benoit) - 2006, held Assembly
Appropriations
AB 1319 (Bates) - 2003-2004, held
Assembly Appropriations
AB 2534 (Bates) - 2004, held Assembly
Appropriations
SB 70 (Escutia) - 2001, not heard in
Senate Public Safety
SB 1005 (Johannessen) - 2001, failed
Senate Public Safety
AB 89 (Bates) - 2001, never heard in
Assembly Human Services
AB 2137 (Maldonado) - 2000, vetoed
AB 1440 (Woods) - 1997, held in Assembly
Appropriations
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Support: Aging Services of California; American Civil Liberties
Union; California Alliance for Retired Americans; SEIU
California; Board of Directors of the California
Foundation for Independent Living Centers; County
Welfare Directors Association of California (in
concept); California Association of Public Authorities
for In-Home Supportive Services (in concept)
Opposition:None known
Assembly Floor Vote: Ayes 54 - Noes 22
(NOTE: This Analysis reflects Author's amendments to be offered
in Committee.)
KEY ISSUE
SHOULD THE LAW PROVIDE THAT AN EXISTENCE OF A BACKGROUND CHECK FOR
AN IN-HOME SUPPORTIVE SERVICES (IHSS) WORKER CAN BE VERIFIED THROUGH
THE CASE MANAGEMENT INFORMATION AND PAYROLLING SYSTEM?
PURPOSE
The purpose of this bill is to not require an In-Home Supportive
Services (IHSS) worker to repeat a background check if he or she
is working in more than one county.
Existing law provides that the Attorney General shall maintain
summary criminal history information and shall furnish the
information to specified persons. (Penal Code 11105.)
Existing law provides that every county shall provide supportive
services to aged, blind, or disabled persons who are unable to
perform the services themselves and who cannot safely remain in
their homes or abodes of their own choosing unless these
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services are provided and sets forth rules and regulations on
how to provide such services. (WIC 12300 et. seq.)
Existing law provides that supportive services and services
related to domestic services, heavy cleaning, personal care
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. Personal care
services shall mean all of the following:
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 medication. (WIC
12300 (b).)
Existing law provides that a county board of supervisors may
elect to do either of the following:
Contract with a nonprofit consortium to provide for the
delivery of In-Home Supportive Services.
Establish by ordinance, a public authority to provide
for the delivery of In-Home Supportive Services. (WIC
12301.6(a).)
Existing law provides that the nonprofit consortium or public
authority shall create a registry to assist recipients in
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finding an IHSS worker. (WIC 12301.6(e)(1).)
Existing law provides that a prospective or current IHSS worker
must have a criminal background check to be included in a
registry. (WIC 1203.6(e)(2).)
Existing law provides that a person shall not be eligible to
provide or receive payment for providing IHSS for 10 years
following a conviction for, or incarceration following a
conviction for, fraud against a government health care or
supportive services program. (WIC 12305.81.)
This bill provides that notwithstanding any other provision of
law, the public authority or nonprofit consortium is authorized
to provide an individual with a copy of his or her state-level
criminal offender record information search response as provided
to that entity by the Department of Justice (DOJ), if the
individual has been denied placement on the registry for
providing supportive services to any recipient of IHSS program
based on this information and the individual makes a written
request to the entity for a copy specifying an address to which
it is to be sent. The state-level criminal offender record
information search response shall not be modified or altered
from its form or content as provided by the DOJ and shall be
provided to the address specified by the individual in the
written request. The public authority or nonprofit consortium
shall retain a copy of the department's written request, the
response, and the date the copy of the response was provided to
the individual.
This bill provides that 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
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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.
This bill provides that the DOJ shall process a request from a
nonprofit consortium or a public authority with criminal record
authority to receive notifications issued by the Department of
Justice pursuant to Section 11105.2 of the Penal Code when the
criminal record clearance for the provider was originally
processed by a county, nonprofit consortium, or public authority
with criminal record authority only if all of the following
conditions are met:
The request shall be submitted to the DOJ by the
nonprofit consortium or public authority to be substituted
to receive the notification.
The request shall be for an individual whose original
clearance was obtained to enroll or continue to be enrolled
as a provider in the IHSS program.
The request shall contain all prescribed data elements
and format protocols pursuant to a written agreement
between the State Department of Social Services (DSS) and
DOJ.
Existing law provides that effective October 1, 2009, a county
shall investigate the background of a person who seeks to become
an IHSS provider and who is not listed on the registry of a
public authority or non-profit consortium. (WIC 12305.86.)
This bill provides that 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 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
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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.
This bill 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.
This bill provides that 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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
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the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
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overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010, ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, the U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
Under ABX4 19, providers who have previously cleared a
background check and provide services in multiple
counties must bear the cost of a new criminal background
check in each county. AB 1763 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 country to another.
Multiple background checks are duplicative, unnecessary
and impose extreme hardship on already low income
workers. AB 1763 will help resolve the problem of
providers being required to pay for more than one
criminal background check while honoring the mandate
contained in ABX4 19 (Evans).
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<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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2. The In-Home Supportive Services (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 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.
3. Mandatory Background Checks for IHSS Workers
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 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.
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(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.
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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 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.
4. Intent to Allow one Background Check for More Than One
County
The purpose of this bill is to find a way to allow a person who
wants to work in more than one county to receive a
fingerprint-based DOJ background check only once.
Currently a nonprofit consortium or public authority receives
the background check information for IHSS workers on their
registry. This bill would allow a nonprofit consortium or
public authority to accept a clearance for an individual, who is
not an applicant for a registry who has been deemed eligible to
receive payments for providing services by another consortium or
public authority who has the authority to do a background check.
The existence of a prior background check will be verified
through the Case Management Information and Payrolling System.
The Case Management System will show that another county,
nonprofit consortium or public authority has deemed the provider
eligible to receive payments for providing IHSS.
By verifying eligibility through the Case Management system,
what was originally a fingerprint-based background check system
is converted to a name-based system for any subsequent county.
The reliability that this is the same person that is seeking
eligibility from the second county or that the same person is
still eligible disappears once the conformation becomes name
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based. It is easy for someone to use a fake ID to try to
establish another's identity. There are many common names that
might result in confusion, or a person may no longer be eligible
in the county that placed their name in the system, yet the
county has not followed up on a subsequent arrest to determine
if there is a conviction.
The issue of transferring a like employee from county to county
is not a new one and has arisen in other areas such as daycare
workers, but an easy solution to maintain the reliability and
make the process easier has not been easy to figure out.
The inherent unreliability of a name-based system has led the
Legislature in the past to not allow use of
non-fingerprint-based systems for employment purposes.
WILL THE RELIABILITY OF A FINGERPRINT-BASED SYSTEM BE LOST ONCE
THE VERIFICATION IS THROUGH A NAME-BASED SYSTEM?
5. Subsequent Arrest Notifications
This bill attempts to deal with the issue of not knowing if the
person has committed an offense since their initial background
check by allowing a county different from the one that
originally processed the background request to request
subsequent arrest notification from the DOJ. The problem with
this is that DOJ is not set up to send subsequent arrest
notification to more than one entity; sending it to a second
entity would mean the first entity no longer gets it.
IF THE SUBSEQUENT ARREST INFORMATION SWITCHES FROM ONE ENTITY TO
THE OTHER, HOW WILL THE FIRST ENTITY LEARN OF SUBSEQUENT
ARRESTS?
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