BILL ANALYSIS �
AB 876
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Date of Hearing: May 10, 2011
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall Jr., Chair
AB 876 (Valadao) - As Amended: March 31, 2011
SUBJECT : In-Home Supportive Services Program
SUMMARY : Prohibits an In-Home Supportive Services (IHSS)
program provider applicant who has been convicted of specified
disqualifying offenses from signing a waiver on behalf of a
service recipient as the recipient's authorized representative,
enabling the recipient to employ that applicant.
EXISTING LAW
1)Establishes the IHSS program to provide personal services and
home care for approximately 435,000 eligible poor, aged, blind
and disabled individuals by approximately 360,000 providers
throughout the state to enable recipients to remain in their
own homes and avoid institutionalization.
2)Prohibits, under Welfare & Institutions (W&I) Code Section
12305.81, a person from providing supportive services under
the IHSS program for 10 years following a conviction for
crimes involving:
a) Fraud against a government health care or supportive
services program; or,
b) Child endangerment, pursuant to Penal Code (PC) Section
273a, elder or dependent adult abuse, pursuant to PC
Section 368, or similar violations in another jurisdiction.
3)Prohibits new provider applicants from providing supportive
services under the IHSS program for 10 years following a
conviction for any of the following:
a) A violent or serious felony as defined in PC Sections
667.5 and 1192.7;
b) A felony for which registration is required under the
Sex Offender Registration Act, pursuant to PC Section 290;
or,
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c) Obtaining public benefits or services by fraud when the
amount of aid exceeds $950, pursuant to W&I Code Section
10980(c)(2), or fraud in the use of food stamp (CalFresh)
benefits in excess of $950, pursuant to W&I Code Section
10980(g)(2).
4)Provides that the prohibitions described in paragraph 3),
above, do not apply if the applicant has obtained a
certificate of rehabilitation as provided in PC Section
4852.01 et seq., or if the conviction has been expunged,
pursuant to PC Section 1203.4.
5)Permits a recipient of IHSS services who wishes to hire a
provider applicant who has been convicted of an offense
described in paragraph 3), above, to submit an individual
waiver of the exclusion, signed by the recipient or the
recipient's authorized representative, if applicable.
6)Authorizes an applicant convicted of an offense described in
paragraph 3), above, to seek from the Department of Social
Services (DSS) a general exception to the exclusions and sets
out the procedures to be followed and factors to be considered
by DSS in responding to a request for a general exception.
7)Requires the county to notify a recipient who wishes to hire a
provider who has been convicted of an offense described in
paragraph 3), above, of the criminal convictions and requires
the notice to include the following:
a) An explanation of the exclusions described in paragraph
3), above, as well as the waiver process and the process
for an applicant to seek a general exception; and,
b) A waiver form.
FISCAL EFFECT : Unknown
COMMENTS :
Background
The 2009 IHSS budget trailer bill, ABX4 19 (Evans), Chapter 17,
Statutes of 2009 4th Extraordinary Session, included provisions
intended to prevent fraud in, and enhance the integrity of the
IHSS program. As a condition of being placed or maintained on a
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county's IHSS provider registry, ABX4 19 required criminal
background checks to be completed for all prospective IHSS
providers as of October 1, 2009, and to be completed by July 2,
2010 for anyone already a provider on October 1, 2009.
Under existing California law, consistent with federal Medicaid
law, an individual may not serve as a provider of services under
the IHSS program for 10 years following a conviction for
specified crimes involving fraud against a government health
care or supportive services program, child endangerment, or
elder or dependent adult abuse. (These are commonly referred to
as "Tier 1" offenses.) The 2010 human services budget trailer
bill, AB 1612 (Committee on Budget), Chapter 725, Statutes of
2010, provided for the additional exclusion, with certain
exceptions, of provider applicants for 10 years following a
conviction for a violent or serious felony, as defined in the
Penal Code, and other specified felony offenses. These
exclusions, referred to as "Tier 2" offenses, apply
prospectively, to new provider applicants, beginning 90 days
following the effective date of that bill.
With respect to these added, Tier 2, exclusions, AB 1612
provides that a recipient who wishes to employ a provider
applicant who has been convicted of such an offense "may submit
to the county an individual waiver of the exclusion." The
waiver form must be signed "by the recipient or by the
recipient's authorized representative , if applicable ?." In
signing a waiver, the individual agrees that he or she is
"accepting the responsibility for this decision and the risk of
any potential actions that may occur as a result of this
decision." This bill would add the proviso that "�a] provider
applicant shall not sign his or her own individual waiver form
as the recipient's authorized representative."
The AB 1612 exclusion for prior convictions of Tier 2 offenses
was enacted as part of a larger budget compromise, and was not
vetted through legislative policy committees. The provision of
AB 1612 permitting an authorized representative to sign a waiver
on behalf of a recipient to enable them to personally provide
IHSS services does give the appearance of a conflict of
interest. What this provision does, in effect, however, is to
simply create a de facto exception to the Tier 2 exclusions for
parents of minors and other authorized representatives. This
bill would eliminate that exception.
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Need for this bill : According to the author, "�m]ost �IHSS]
recipients do not have the physical stature or ability to
advocate for themselves hence their need for supportive
services. ? Why would the State of California allow someone who
has possibly committed murder or voluntary manslaughter sign
their own rights to take care of an incapacitated person? �This
bill] will guarantee that our recipients are not put in an
abusive situation which is being paid for by our state
government."
Based on data on the percentage of IHSS recipients whose mail is
addressed to someone other than the recipient (i.e., an
authorized representative), and the percentage of providers with
Tier 2 convictions, the author estimates that there are
approximately 600 authorized representative providers who could
potentially sign their own waivers.
Who are "authorized representatives"? : Existing law permits a
provider applicant to sign the waiver form if the applicant is
also the recipient's authorized representative. To understand
the effect of this bill, therefore, it is necessary to
understand who can be an "authorized representative." The term
is not defined in the statutes or regulations governing the IHSS
program.
Authorized representative is defined elsewhere in the W&I
Code-with respect to fair hearings under the Lanterman
Developmental Disabilities Services Act. In that context,
authorized representative means "the conservator of an adult,
the guardian, conservator, or parent or person having legal
custody of a minor claimant, or a person or agency appointed
pursuant to �procedures under the act]." W&I Code Section
4701.6.
By common usage, an authorized representative is an individual
authorized by law (e.g., the parent or guardian of a minor), or
designated either by the individual (e.g., through a power of
attorney, advance health care directive, contract) or by an
entity with authority to appoint someone to act on behalf of the
individual (e.g., a court-appointed conservator). In the health
care context, legally recognized surrogate decision-makers
include spouses and registered domestic partners, and may also
include immediate family members, relatives, significant others,
and close friends.
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Effect of this bill : Under this bill, authorized
representatives of recipients who lack capacity to sign a waiver
would be unable to sign the waiver to provide IHSS services
themselves based on a Tier 2 felony conviction within the prior
10 years. As authorized representatives, however, they could
still sign a waiver authorizing someone else who has a Tier 2
felony conviction to be a provider for their own child,
relative, etc. Thus, this bill would narrow the waiver
exception to the Tier 2 felony exclusion by disqualifying
authorized representatives-that is, those who would likely be
the most appropriate providers: Parents or guardians of minor
children; parents of adults, siblings, spouses, registered
domestic partners, or adult children-including those who have
been court-appointed as conservators; and trusted friends or
relatives selected by an IHSS recipient prior to becoming
incapacitated to act as his or her health care agent. Parents
and other authorized representatives would have the greatest
obstacles to becoming an IHSS provider and would have to go
through the far more cumbersome and lengthy state-level general
exception process, where the outcome is far more uncertain.
If the purpose of this bill is to narrow the universe of people
with prior felony convictions who can serve as IHSS providers,
it seems it is doing so by excluding the wrong sub-group:
authorized representatives. The author's stated goal is to
ensure that "our recipients are not put in an abusive situation
which is being paid for by our state government." It is not
likely that this goal will be furthered by, for example,
disqualifying a parent who is also a child's only authorized
representative from being the child's provider because of a
prior Tier 2 felony conviction, in favor of a stranger-who may
also have a prior Tier 2 felony conviction.
Concerns : The California Association of Public Authorities for
IHSS (CAPA) is concerned that, by requiring parents and other
authorized representatives to go through the state general
exemption process, services would be delayed. CAPA points out
that the data on Tier 2 offenses suggest that very few applicant
providers have been determined ineligible based on conviction
for such crimes; therefore, the issue addressed by this bill is
not a significant one warranting the potential disruption of
services to eligible recipients. DSS data do, in fact, show
that, since the effective date of AB 1612 in February 2011, to
date, only 162 new provider applicants statewide (out of,
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perhaps, 30,000 applicants<1>) have been deemed ineligible based
on Tier 2 offenses, and only 68 waivers have been submitted. As
CAPA notes, the data "dispels the myth ? that the IHSS program
is rampant with dangerous felons working as providers for
seniors and people with disabilities." The data also show that
the issue addressed by this bill is insignificant in terms of
the number of people affected, since only a small (albeit
unknown) fraction of the 68 waivers submitted were likely signed
by an authorized representative seeking to be a provider.
The author of this bill poses the question of why the state
would "allow someone who has possibly committed murder or
voluntary manslaughter to sign their own rights to take care of
an incapacitated person." The fact is that, with or without
enactment of this bill, individuals convicted of Tier 2
disqualifying offenses are permitted to provide IHSS services.
The Tier 2 exclusions do not apply to providers enrolled prior
to 90 days after the effective date of AB 1612. They do not
apply to individuals with convictions more than 10 years old.
And, they do not apply when an IHSS recipient or his or her
authorized representative signs a waiver. One might pose the
alternative question of why a young child, an elderly parent, or
a disabled adult, for example, should have to receive IHSS
services from a stranger rather than from a willing and able
authorized representative who is also their parent, adult child,
or spouse.
RECOMMENDED AMENDMENT : The author is reportedly willing to
accept the following amendment:
A Except for the parent, guardian or person having legal custody
of a minor, the conservator of an adult, or a spouse or
registered domestic partner, a provider applicant shall not sign
his or her own individual waiver form as the recipient's
authorized representative.
REGISTERED SUPPORT / OPPOSITION :
Support
---------------------------
<1> CAPA reports that there is a turnover of roughly one-third
of the IHSS provider pool each year. Assuming a turnover of
120,000 providers a year, or 10,000 per month, there would have
been approximately 30,000 new provider applicants subject to the
Tier 2 exclusions since February 1, 2011, the effective date of
AB 1612.
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1 Individual
Opposition
Disability Rights California (unless amended)
Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089