BILL ANALYSIS �
AB 1714
Page 1
Date of Hearing: March 20, 2012
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall Jr., Chair
AB 1714 (Halderman) - As Introduced: February 16, 2012
SUBJECT : In-home supportive services: providers
SUMMARY : Adds forgery, embezzlement, extortion, and identity
theft to the list of felony offenses for which a conviction
precludes a new applicant from being an In-Home Supportive
Services (IHSS) provider for a period of 10 years.
EXISTING LAW
1)Establishes the IHSS program to provide personal services and
home care for approximately 445,000 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)Imposes, under Penal Code (PC) Section 368, specified fines
and sentences for caretakers and non-caretakers of elders and
dependent adults for violations of any provision of law
proscribing theft, embezzlement, forgery fraud, or identify
theft with respect to the property or personal identifying
information of that elder or dependent adult.
a) Defines "dependent adult" as including a person between
the age of 18 and 64, who has physical or mental
limitations that restrict his or her ability to carry out
normal activities.
b) Defines "elder" as a person who is 65 years of age or
older.
3)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 PC Section 273a, elder
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or dependent adult abuse, pursuant to PC Section 368, or
similar violations in another jurisdiction.
4)Prohibits, under W&I Code Section 12305.87, a new provider
applicant 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,
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).
5)Provides that the prohibitions described in paragraph 4),
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.
6)Permits a recipient of IHSS services who wishes to hire a
provider applicant who has been convicted of an offense
described in paragraph 4), above, to submit an individual
waiver of the exclusion, signed by the recipient or the
recipient's authorized representative, if applicable.
7)Prohibits a provider applicant from signing his or her own
individual waiver form as the recipient's authorized
representative unless the individual is the 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 the recipient.
8)Authorizes an applicant convicted of an offense described in
paragraph 4), 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.
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9)Requires the county to notify a recipient who wishes to hire a
provider who has been convicted of an offense described in
paragraph 4), above, of the criminal convictions and requires
the notice to include the following:
a) An explanation of the exclusions described in paragraph
4), 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
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 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. 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.
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With respect to these added, Tier 2, exclusions, AB 1612
provided 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." AB 876 (Valadeo), Chapter 73, Statutes of 2011,
added the proviso that, except in the case the 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 the recipient, a provider applicant shall
not sign his or her own individual waiver form as the
recipient's authorized representative. Persons convicted of
Tier 2 offenses also have the option of seeking a general
exception to the exclusions, under prescribed procedures and
criteria.
This bill would add forgery, embezzlement, extortion, and
identity theft to the list of Tier 2 felonies for which a
conviction disqualifies new provider applicants for a period of
10 years.
Need for this bill : According to the author,
�IHSS] recipients are among California's most
vulnerable citizens. Stringent screening guidelines
should be maintained to prevent these individuals from
being hurt or taken advantage of. The state should
not allow those convicted of identity theft to have
easy access to the financial documents of an elderly
or disabled Californian. AB 1714 provides necessary
protection to IHSS recipients and keeps them from
being victimized by financial predators at taxpayer
expense.
Consistent with federal law, state law already disqualifies an
individual from being an IHSS provider for a period of 10 years
if the person has been convicted of fraud against a government
health care or supportive services program or has violated PC
Section 368, which includes theft, embezzlement, forgery fraud,
or identify theft with respect to the property or personal
identifying information of that elder or dependent adult. These
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are Tier 1 offenses, meaning, for example, they apply to all
providers, not only new applicants, the exclusion cannot be
waived by the IHSS recipient, and DSS may not grant general
exceptions.
This bill would classify forgery, embezzlement, extortion, and
identity theft as Tier 2 offenses, even when the victim of the
prior offense was not a dependent adult or 65 years of age or
older. The presumption is that individuals who have committed
such crimes-even against non-dependent adults or
non-elders--would be more likely to victimize recipients of IHSS
services by similar means.
Policy considerations : Currently, Tier 2 offenses involve
either fraud against a public benefits program, because of the
presumed risk to public funds, or serious or violent felonies,
or sex offenses, because of the presumed risk of physical harm
to IHSS recipients. This bill would broaden the scope and
rationale for these Tier 2 exclusionary offenses by including
offenses that are presumed to place the financial well-being of
the services recipient at greater risk.
Policy considerations include balancing the nature and
probability of harm with, for example, the impact on recipients'
right to choose their providers and the overall supply of
providers, and the added stigma on caregivers under the IHSS
program. Certainly, financial abuse of seniors and dependent
adults is a significant problem. However, conviction for
forgery, embezzlement, extortion, or identity theft where the
victim was a dependent adult or elder are already classified as
Tier 1 exclusions. And conviction for fraud against a public
benefits program is already a Tier 2 exclusion.
Questions for the author include: What, if any, data exist to
demonstrate the extent of the identified problem within the IHSS
program and, thus, the need to expand the list of Tier 2
disqualifying crimes? As noted, the current list of Tier 2
exclusions was added by the 2010 human services budget trailer
bill. Are there new data demonstrating that IHSS recipients
have been victimized by IHSS providers with a history of
convictions for such offenses involving non-dependent adults or
non-elders? Is it premature to be adding exclusions without
more specific data on the extent to which IHSS recipients have,
in fact, been victimized by providers who would be excluded
under the provisions of this bill?
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Should the bill be limited to felony convictions ? Each of the
four disqualifying crimes added by this bill (forgery,
embezzlement, extortion, and identity theft), are "wobblers";
that is, offenses that can be charged as either a misdemeanor or
a felony. All of the current statutory Tier 2 exclusions are
felony offenses. This bill would set a new precedent for
excluding provider applicants on the basis of a misdemeanor
conviction.
RECOMMENDED AMENDMENT : On page 3, after line 16, insert the
following as new subdivision (c):
(c) An application shall not be denied under this
section for a conviction of the offenses in paragraphs
(4), (5), (6), and (7) of subdivision (b) unless the
conviction was for a felony.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
Opposition
None on file.
Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089