BILL ANALYSIS �
AB 1714
Page 1
ASSEMBLY THIRD READING
AB 1714 (Halderman)
As Amended March 27, 2012
Majority vote
HUMAN SERVICES 4-2 APPROPRIATIONS 9-6
-----------------------------------------------------------------
|Ayes:|Beall, Jones, Grove, |Ayes:|Fuentes, Harkey, |
| |Portantino | |Blumenfield, Charles |
| | | |Calderon, Donnelly, |
| | | |Nielsen, Norby, Solorio, |
| | | |Wagner |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Ammiano, Hall |Nays:|Bradford, Gatto, Hall, |
| | | |Hill, Lara, Mitchell |
-----------------------------------------------------------------
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)Prohibits, under Welfare and 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.
AB 1714
Page 2
3)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).
4)Permits a recipient of IHSS services who wishes to hire a
provider applicant who has been convicted of an offense
described in 3) above, to submit an individual waiver of the
exclusion, signed by the recipient or the recipient's
authorized representative, if applicable.
5)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.
6)Authorizes an applicant convicted of an offense described in
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 3)
above, of the criminal convictions and requires the notice to
include the following:
a) An explanation of the exclusions described in 3) above,
as well as the waiver process and the process for an
AB 1714
Page 3
applicant to seek a general exception; and,
b) A waiver form.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)Currently, there are over 500,000 registered IHSS providers.
To date there have been 747 potential providers who are
ineligible due to being convicted of one of the 106 current
Tier 2 felonies. In addition, there are 516 providers with
felony convictions who were provided with waivers. Given the
small number of excluded providers, it is unlikely that adding
four additional crimes to the list of felonies would result in
significant workload costs or reduction in the pool of
providers.
2)Potential minor nonreimbursable costs to counties for
prosecution and incarceration related to violations of the
bill's provisions, offset to some extent by fine revenues.
(The bill expands provisions of current law, the violation of
which is a misdemeanor.)
COMMENTS : The 2009 IHSS budget trailer bill, AB 19 X4 (Evans),
Chapter 17, Statutes of 2009-10 Fourth 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, AB 19
X4 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 (Budget Committee), 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
AB 1714
Page 4
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.
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 (Valadao), Chapter 73, Statutes of 2011,
added the provision that, except in the case of 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 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.
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 theft, embezzlement,
forgery fraud, or identify theft with respect to the property or
personal identifying information of an elder or dependent adult.
These 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 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.
AB 1714
Page 5
Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089
FN: 0003330