BILL ANALYSIS
SENATE HUMAN
SERVICES COMMITTEE
Senator Carol Liu, Chair
BILL NO: SB 246
S
AUTHOR: Benoit
B
VERSION: As introduced
HEARING DATE: April 28, 2009
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FISCAL: To Public Safety and Appropriations
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CONSULTANT:
Hailey
SUBJECT
In-home supportive services: registries: criminal
background checks
SUMMARY
Requires persons to obtain a criminal background check in
order to be employed as a provider of in-home supportive
services (IHSS).
ABSTRACT
Current law :
1. Establishes the in-home supportive services program
(IHSS) by which qualified persons who are aged, blind, or
have a disability can receive services that enable them to
remain safely in their homes.
2. Permits counties to establish a nonprofit consortium or
a public authority to perform various duties in the
employment of persons providing IHSS.
3. Directs the public authority or non-profit consortium
to establish a registry of IHSS providers, directs the
consortium or public authority to investigate the
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qualifications and background of prospective registry
applicants, and permits the consortium or public authority
to include a criminal background check in that
investigation.
4. Excludes from the registry, and denies payment for IHSS
services, any provider whose criminal records check
discloses that the individual has been convicted in the
past ten years of any one of the following:
Fraud against a government health care or
supportive services program
Child abuse (Penal Code Section 273a)
Elder abuse (Penal Code Section 368)
5. Allows recipients of IHSS to employ the provider of
services.
6. Permits recipients to require a provider of services to
submit to a criminal records check as a condition of
employment.
This bill :
1. Requires that a consortium or public authority include
a criminal background check through the State Department of
Justice as part of its investigation of a prospective
registry applicant.
2. Requires a person wanting to provide IHSS to be on the
registry in the county where services will be provided
within 90 days of beginning to provide IHSS.
3. Requires a person who is providing IHSS on January 1,
2010 to be on the registry by April 1, 2010.
4. Provides that the provider of IHSS services will be
responsible for covering the cost of fingerprint imaging.
FISCAL IMPACT
Unknown.
BACKGROUND AND DISCUSSION
General program information
Currently, about 375,000 persons care for the nearly
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430,000 Californians who receive IHSS. IHSS services
consist of assistance in the home of the client:
housecleaning, meal preparation, personal assistance, and
other chores that enable the recipient to remain safely in
his or her home. All recipients are subject to a means
test: they are recipients of SSI or they are eligible for
Medicaid. They are aged, blind, or disabled, and an
assessment by a social worker has determined that these
prescribed services are necessary for the clients to remain
safely in their homes.
According to data provided by the Department of Social
Services, 25 percent of IHSS recipients are 80 years of age
or older and an additional third are at least 65. The
remainder - those under 65 - each has a disability
requiring in-home services.
Need for the bill
The author summarizes the growth in the IHSS program over
the past ten years, cites criminal charges in Los Angeles
in 2008 charging IHSS providers with defrauding the program
of more than $2 million, and cites a 2007-08 Los Angeles
County grand jury report recommending conducting criminal
background checks of recipients and providers as deterrents
to fraud. The author states, "By not mandating background
checks, individuals with prior criminal backgrounds can
become an IHSS provider and potentially abuse these
individuals physically, mentally, or monetarily.
This proposal
Under this proposal, all IHSS providers would register with
their county's public authority or non-profit consortium
and all 375,000 providers of IHSS services would be subject
to background checks. Persons convicted of specific crimes
in the past ten years would be ineligible for inclusion on
the registry and ineligible for payment for providing IHSS
services.
Current background check options
At the present time, recipients can require that a
caregiver submit to a criminal records check. The results
of that check are sent from the State Department of Justice
to the public authority or non-profit consortium within the
county of the client's residence. The public authority
reviews the criminal records and informs the client of
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convictions. Regardless of the results of a criminal
records check, the client can hire or retain the individual
unless that person has been convicted in the past ten years
of child abuse, elder abuse, or fraud against a government
program such as Medi-Cal.
Number of IHSS providers who have had a criminal background
check
Public authorities and non-profit consortia maintain a
registry of persons available to provide IHSS services. In
26 counties, a condition of registration is a completed
criminal records check. As of June 2007, public
authorities and non-profit consortia from those counties
reported 14,500 persons on their registries. DSS reports
that in all other counties there are an additional 30,000
providers on the registries that have not been through a
criminal records check.
Cost of a criminal background checks
According to the California Association of Public
Authorities, the cost for a criminal background check
averages $73: the Department of Justice has a fee of $32 to
run the prints against the state database of crimes and
convictions, the Federal Bureau of Investigation charges
$19 to run the prints against its national database, and
the fingerprint imaging process (LiveScan) varies in cost
around the state from $15 to $40 for each set of
fingerprint. The costs to a public authority or non-profit
consortium to review materials from the Department of
Justice are not covered by those fees.
Recent related legislation
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 it
prohibits the charging of a fee to those persons required
to submit to a criminal background check.
SB 692 (Ashburn, Chapter 2, Statutes of 2008) permits
public authorities, upon the request of an aged or disabled
adult who is an IHSS employer, to assist IHSS clients to
obtain a criminal background check of their provider. It
also allows the public authority or non-profit consortium
to charge a fee to the individual making the request, in
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order to cover costs.
Arguments in opposition
The public authorities argue that the incidence of
providers using false or duplicate identities is low and
does not warrant the cost of this bill. They also believe
that automated timecards, which are being developed, will
help in this area of concern. Other opponents argue that
the bill shifts costs to low-wage workers and unnecessarily
includes background checks on family members.
COMMENT AND QUESTIONS
1. Scope of this proposal: can public authorities absorb
the workload?
Public authorities would go from maintaining registries
that list fewer than 50,000 persons to maintaining
registries for all 375,000 persons providing IHSS services.
In addition, according to the California Association of
Public Authorities, not all of the persons currently on
registries have had a criminal records clearance through
the State Department of Justice and FBI databases. The
association estimates that between 7,000 and 7,500 of the
375,000 providers have had their background checks run
through those databases.
The committee may want to ask the representative of public
authorities if those organizations are in a position to
absorb this growth. While the bill does allow the public
authority to require the participant to pay for the cost of
fingerprint imaging and the costs of the State Department
of Justice to process the background check, it does not
cover the costs of public authorities to do anything with
the information sent to them by the Department of Justice
as a result of the records check.
2. Use of criminal records
At the present time, the IHSS client is the employer of
record of his or her provider of service. If a criminal
records check discloses that an individual has a criminal
record, the IHSS client can still choose to employ that
individual except in the case of three specific crimes for
which he or she was convicted in the past ten years:
defrauding a government health care or social services
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program, child abuse, and elder abuse. The committee may
wish to ask the author or representatives of the California
Association of Public Authorities how often a conviction
for one of these three crimes is disclosed in criminal
records checks being run at the present time.
POSITIONS
Support: Los Angeles County District Attorney's
Office
Oppose: American Federation of State, county and
Municipal Employees
California Association of Public Authorities
IHSS Coalition
United Domestic Workers of America
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