BILL ANALYSIS �
SENATE HUMAN
SERVICES COMMITTEE
Senator Carol Liu, Chair
BILL NO: AB 1714
A
AUTHOR: Halderman
B
VERSION: March 27, 2012
HEARING DATE: June 26, 2012
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FISCAL: Yes
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CONSULTANT: Sara Rogers
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SUBJECT
In-home supportive services: excluded providers
SUMMARY
Add specified felony offenses to the list of Tier 2
criminal convictions that preclude an applicant from
providing services through the In-Home Supportive Services
(IHSS) program for 10 years unless the exclusion is waived,
as specified. Requires the Department of Supportive
Services to make according revisions to the provider
enrollment form.
ABSTRACT
Current law
1.Establishes the In-Home Supportive Services (IHSS)
program to provide in-home domestic and personal care
services for aged, blind or disabled individuals living
at or below the poverty level for the purpose of enabling
IHSS consumers to avoid institutionalization and remain
Continued---
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safely in their homes with supportive services.
2.Establishes the Department of Social Services (DSS) as
the state agency with regulatory authority over the IHSS
program and delegates administration of the program to
counties and county public authorities.
3.Provides IHSS recipients with the right to hire, fire,
and supervise the work of any in-home supportive services
personnel providing services for them.
4.Deems any county public authority or non-profit
consortium under contract with a county as the employer
of record with regard to the terms and conditions of
employment, including the investigation of the
qualifications and background of potential personnel.
5.Requires prospective providers to undergo a criminal
background check and establishes two tiers of
exclusionary crimes. The first tier excludes, without
exception, any provider applicant convicted within the
last 10 years for:
Specified abuse of a child (Penal Code section
273a)
Abuse of an elder or dependent adult (PC
section 368)
Fraud against a government health care or
supportive services program
1.Establishes a second tier of exclusionary crimes, which
may be waived or exempted, including:
A violent or serious felony, as specified in PC
section 667.5(c), and PC section 1192.7(c)
A felony offense for which a person is required
to register as a sex offender pursuant to PC section
290(c)
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A felony offense for fraud against a public
social services program, as defined in WIC sections
10980(c)(2) and (g)(2)
1.Provides that prospective providers excluded due to a
Tier 2 conviction who receive a certificate of
rehabilitation or an expungement (dismissal pursuant to
PC section 1203.4) shall not be excluded.
2.Provides that an IHSS recipient may submit an individual
waiver of the exclusion for a Tier 2 crime, signed by the
recipient or the recipient's authorized representative,
if applicable. Requires the service recipient or his or
her authorized representative to be informed of any
relevant criminal convictions.
3.Permits DSS to provide a general exclusion exemption to
prospective providers convicted of a Tier 2 crime and
establishes specified considerations DSS may use in
making a determination.
4.Permits an IHSS consumer or any employer of an unlicensed
in-home care provider to an aged or disabled consumer, to
request a criminal background check for the provider and
requires county welfare agencies to regularly inform the
consumer of this right.
This bill
1.Adds the following crimes to the list of Tier 2 offenses:
A felony forgery offense, as specified in PC
Section 470
A felony embezzlement offense, as specified in
PC Section 503
A felony extortion offense, as specified in PC
Section 518
A felony identity theft offense, as specified
in PC Section 530.5
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1.Requires DSS to revise the provider employer form to
reflect the additional Tier 2 exclusionary convictions.
FISCAL IMPACT
The Assembly Appropriations Committee states that out of
the more than 500,000 registered IHSS providers, there are
only 516 providers with felony convictions who were
provided with waivers and concludes that "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."
Additional 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 Department of Finance submitted an oppose position on
this bill stating that "this bill would create additional
workload for the Department of Social Services and counties
to review Criminal Offender Record Information reports and
process additional individual waiver and general exception
requests for the felony offences specified."
BACKGROUND AND DISCUSSION
According to the author, current law does not adequately
protect In-Home Supportive Services recipients from
financial abuse at the hands of providers who are in close
proximity to their identification and financial records.
The author cites a 1998 National Elder Abuse Incidence
Study which found that financial/material abuse is the
second most likely type of substantiated abuse committed by
IHSS providers. Additionally, the author cites California
Department of Corrections recidivism data which indicates
that those convicted of forgery or fraud have a recidivism
rate of 63.1%.
The author states that this bill will provide IHSS
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recipients with more information and/or protection when
choosing an IHSS provider. The author points out that this
bill allows a recipient to complete and individual
exclusion waiver if they wish to hire a provider that has a
criminal conviction pursuant to this bill.
In-Home Supportive Services
In Home Supportive Services began as a social services
program funded through Title XX of the Social Security Act
but has since become an optional federal Medicaid benefit,
which is currently its primary funding source.
Historically, the goal of the program was to assist seniors
and disabled individuals with activities of daily living in
order to enable them to live at home safely, but it was
limited in its scope due to long waiting lists for waiver
slots that provided funding for the services.
On June 19, 1999, the United States Supreme Court issued
the landmark Olmstead decision which held that the American
with Disabilities Act (ADA) and the Rehabilitation Act
requires public entities to administer services "in the
most integrated setting appropriate" and to "make
reasonable modifications in policies, practices, or
procedures?to avoid discrimination on the basis of
disability?"
Following this decision, California has dramatically
increased its use of the program to enable IHSS consumers
to avoid institutionalization and remain safely in their
homes with proper supportive services.
Provider Background checks and Exclusionary Crimes
Facing significant budget shortfalls, as part of the 2009
Budget Act, the legislature adopted sweeping changes to the
IHSS program intended to address and prevent fraud and
abuse of the program. AB X4 19 (Evans, Chapter 17,
Statutes of 2009) among other changes, required all
prospective IHSS providers to submit to Department of
Justice criminal background checks at the providers
expense. Prior to this change, a public authority was
authorized but not required to perform a criminal
background check on prospective providers. Additionally,
AB 1612 (Committee on Budget, Chapter 725, Statutes of
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2009) added a new tier of exclusionary convictions for new
providers, which may be waived or exempted upon request of
the recipient or following a determination by the
Department of Social Services (see current law section of
this analysis for the list of Tier 2 offenses).
Importantly, federally mandated Tier 1 exclusions currently
prevent individuals convicted of Penal Code 368 violations
which include actions of embezzlement, forgery, or fraud,
or identity theft against elders or dependent adults from
being or becoming providers in the program. This bill
would add these crimes, when committed against the general
population, to the list of Tier 2 exclusions.
Opposition Arguments
The opposition states that there is no evidence indicating
that recent legislation that added new Tier 2 exclusionary
convictions has been successful in reducing fraud or abuse
against recipients or improving program integrity.
Opponents state that Governor Schwarzenegger's 2007
Performance Review indicated a fraud rate of less than 2%
and that this measure will increase state costs and do
little to reduce fraud and abuse in the program.
AFSCME/UDW writes in opposition that, "given the increasing
demand for home care workers and the high turnover, AB 1714
will have an adverse impact on the quality of home care by
reducing the pool of qualified workers."
Disability Rights California writes in opposition to the
bill stating that this bill interferes with the rights of
the consumers, and that there is no evidence that the
enormous expense of criminal background checks produces the
desired result.
The Congress of California Seniors writes that, "Under the
last Administration there were claims of fraud in the IHSS
program which have proven largely spurious. This bill will
divert scarce resource from direct services and create
greater barriers for client-chosen caregivers to meet the
needs of a growing population."
PRIOR VOTES
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Assembly Floor 45-10 (25 members not voting)
Assembly Appropriations9-6-2
Assembly Human Services4-2-0
Related Legislation
SB 930 (Evans, Chapter 649, Statutes of 2011) Repealed the
requirement that IHSS recipients provide fingerprint images
at the time of assessment or reassessment and on
standardized timesheets. Required the county to provide
DSS with the DOJ criminal offender record information
(CORI) if an IHSS provider or applicant appeals a denial of
placement on the IHSS provider registry as a result of a
DOJ criminal background check.
AB 876 (Valadeo, Chapter 73, Statutes of 2011) Provides
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.
ABX4 19 (Evans, Chapter 17, Statutes of 2009 4th
Extraordinary Session) Requires criminal background checks
to be completed for all prospective IHSS providers as of
October 1, 2009, as specified.
AB 1612 (Committee on Budget, Chapter 725, Statutes of
2009) Establishes a new tier of exclusionary crimes, which
may at the request of the recipient be waived, and may be
exempted by the Department of Social Services.
AB 1841 (Silva, Introduced: February 22, 2012) Would have
deleted the authority of an In-home Supportive Services
(IHSS) recipient to submit a waiver enabling a provider
applicant who has been convicted of specified offenses to
be employed as that individual's IHSS provider. Failed
passage in the Assembly Human Services Committee.
POSITIONS
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Support: Aging Services of California
California Association for Health Services at
Home
Exceptional Parents Unlimited
Santa Clara County Board of Supervisors
The Arc and United Cerebral Palsy in California
Oppose:AFSCME/UDW
All of Us or None
American Civil Liberties Union of California
California Department of Finance
Congress of California Seniors
Disability Rights California
East Bay Community Law Center
Lawyers' Committee for Civil Rights of the San
Francisco Bay Area
Legal Services for Prisoners with Children
National Employment Law Project
Rubicon Programs
Stanford Community Law Clinic
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