BILL ANALYSIS �
AB 876
Page A
ASSEMBLY THIRD READING
AB 876 (Valadao)
As Amended May 16, 2011
Majority vote
HUMAN SERVICES 5-0
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|Ayes:|Beall, Jones, Ammiano, | | |
| |Grove, Hall | | |
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| | | | |
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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, except in the
case of an authorized representative who is a parent, guardian
or person having legal custody of a minor, the conservator of an
adult, or the spouse or registered domestic partner of the
recipient.
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
273(a), elder or dependent adult abuse, pursuant to PC
Section 368, or similar violations in another jurisdiction.
3)Prohibits new provider applicants from providing supportive
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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,
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 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, a waiver form.
FISCAL EFFECT : None
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COMMENTS : The 2009 IHSS budget trailer bill, AB19 X4 (Evans),
Chapter 17, Statutes of 2009 Fourth Extraordinary Session,
includes provisions intended to prevent fraud in, and enhance
the integrity of the IHSS program. As a condition of being
placed or maintained on a county's IHSS provider registry, AB19
X4 (Evans) requires 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 (Budget Committee), Chapter 725, Statutes of 2010,
provides 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 (Budget
Committee) 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."
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. In effect, however, what this provision does is to
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simply create a de facto exception to the Tier 2 exclusions for
parents of minors and other authorized representatives. This
bill, with specified exceptions, would eliminate that exception.
Effect of this bill : Existing law permits a provider applicant
to sign the waiver form if the applicant is also the recipient's
authorized representative. As most recently amended, this bill
would add the proviso that "Except for a parent, guardian, or
person having legal custody of a minor recipient, a conservator
of an adult recipient, or a spouse or registered domestic
partner of a recipient, a provider applicant shall not sign his
or her own individual waiver form as the recipient's authorized
representative." To understand the effect of this bill 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.
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.
Under this bill, authorized representatives of recipients who
lack capacity to sign a waiver, and who do not meet one of the
specified exceptions, 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 some authorized representatives.
Because "authorized representative" is not defined in applicable
statutes or regulations, however, this provision is vague;
although, this is true of the current statute, which permits
waivers to be signed by any authorized representative.
However it is defined, excluding people who are authorized
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representatives will exclude those who would, in most instances,
be the most appropriate providers: E.g., 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.
Under this bill, non-exempted 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
less certain. As a result of the recent amendment exempting
parents of minors and other delineated authorized
representatives from the prohibition on submitting a waiver on
their own behalf, however, these concerns with this bill have
been significantly mitigated.
Is this bill necessary? : According to DSS data, as of early May
2011, only 162 new provider applicants statewide (out of,
perhaps, 30,000 applicants<1>) had been deemed ineligible based
on Tier 2 offenses, and only 68 waivers had been submitted in
the approximately three months since the effective date of AB
1612. This 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 shows 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.
Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089
FN: 0000627
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<1> The California Association of Public Authorities for IHSS
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 from February 1, 2011, the effective date of AB
1612, through the beginning of May 2011.
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