BILL ANALYSIS �
SENATE HUMAN
SERVICES COMMITTEE
Senator Carol Liu, Chair
BILL NO: AB 876
A
AUTHOR: Valadao
B
VERSION: May 16, 2011
HEARING DATE: June 14, 2011
8
FISCAL: To the floor
7
6
CONSULTANT:
Hailey
SUBJECT
In-home supportive services program
SUMMARY
Narrows the circumstances that allow a provider of in-home
supportive services (IHSS) to sign, on the client's behalf,
the form that allows the client to hire a provider with a
criminal record that includes various felonies.
ABSTRACT
Current law
1. Establishes the in-home supportive services (IHSS)
program to provide domestic services to qualifying
individuals allowing them to remain safely in their homes.
2. Precludes from providing IHSS, for ten years from the
date of conviction, persons found guilty of specific
felonies.
3. Exempts from this ten-year ban an individual who has
obtained a certificate of rehabilitation.
Continued---
STAFF ANALYSIS OF ASSEMBLY BILL 876 (Valadao) Page
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4. Allows a recipient of IHSS who wishes to employ a
provider who is under the ten-year ban to submit to the
county an individual waiver of the exclusion.
5. Prescribes that the individual waiver must be signed by
the IHSS client or by the client's "authorized
representative."
This bill
1. Redefines "authorized representative" to exclude a
provider with the criminal record unless that individual is
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.
FISCAL IMPACT
None.
BACKGROUND AND DISCUSSION
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 state law, consistent with federal Medicaid
law, an individual may not serve as a provider of services
under the IHSS program for 10 years following 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
STAFF ANALYSIS OF ASSEMBLY BILL 876 (Valadao) Page
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violent or serious felony, as defined in the Penal Code,
and other specified felonies. These exclusions, referred
to as "Tier 2" offenses, apply to new provider applicants
prospectively, beginning 90 days after the effective date
of that bill.
With respect to Tier 2 exclusions, AB 1612 (2010) 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 part of a larger budget compromise that 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 provide IHSS services does give the
appearance of a conflict of interest. In effect, however,
what this provision does is to 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. 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
STAFF ANALYSIS OF ASSEMBLY BILL 876 (Valadao) Page
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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
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.
STAFF ANALYSIS OF ASSEMBLY BILL 876 (Valadao) Page
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Number of persons the bill effects
According to DSS data, as of early May 2011, 162 new
provider applicants statewide (out of, perhaps, 30,000
applicants) had been deemed ineligible based on Tier 2
offenses, and 68 waivers had been submitted in the
approximately three months since the effective date of AB
1612. These data dispel the contention that the IHSS
program is rampant with felons working as providers for
seniors and people with disabilities. These data also show
this bill effects a small number of people: over a 10- to
18-month period, an unknown fraction of the 68 waivers
submitted were likely signed by an authorized
representative seeking to be a provider.
Assembly votes
Human Services: 5 - 0
Floor: 76 - 0
POSITIONS
Support: Kings In-Home Supportive Services Public
Authority
1 individual
Oppose: None received
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