BILL ANALYSIS �
AB 1841
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Date of Hearing: April 10, 2012
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall Jr., Chair
AB 1841 (Silva) - As Introduced: February 22, 2012
SUBJECT : In-home supportive services providers: criminal
exclusions
SUMMARY : Deletes 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.
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 & 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
or dependent adult abuse, pursuant to PC Section 368, or
similar violations in another jurisdiction.
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,
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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)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.
6)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.
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 the following:
a) 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,
b) A waiver form meeting specified requirements, developed
by DSS in consultation with representatives of county
welfare departments and advocates for, or representatives
of, recipients and providers.
8)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.
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9)Provides that a provider hired based on an individual waiver
may be employed only by the recipient who requested the
waiver, and the waiver shall only be valid with respect to the
convictions specified in that waiver.
10)Immunizes the state and county from liability resulting from
granting an individual waiver.
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.
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
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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 delete the provisions by which a recipient or
recipient's authorized representative may request a waiver with
respect to an individual provider applicant who has been
convicted of a Tier 2 felony (Existing Law, paragraph 3, above)
within the last 10 years.
Need for this bill
According to the author:
This bill is needed to protect the IHSS program.
Eliminating the individual waiver will eliminate a
potential source of fraud within IHSS. The crimes
listed as "Tier 2" crimes are of the type that would
eliminate most applicants from consideration for most
jobs, public or private. Employment as an IHSS
provider should be no different. A higher level of
scrutiny is needed before murderers, rapists and other
felons should be able to get a taxpayer-funded job
working in IHSS recipients' homes.
(Emphasis in original.)
Is there new information or data to suggest that the individual
waiver process has been problematic? According to DSS data
provided in early March 2012, there are approximately 528,000
eligible IHSS providers in the state. 747 prospective providers
have been disqualified based on a conviction for a Tier 2 felony
and 516 individual waivers have been submitted. The author has
provided no data on the incidence of victimization of IHSS
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recipients or substantiated fraud with respect to providers for
whom an individual waiver has been submitted.
Philosophy of the IHSS program
At the core of the IHSS program is a philosophy that recognizes
the dignity of consumers by acknowledging their right to
self-determination. Central to that philosophy are the
consumer's rights to hire, supervise, and fire the caregiver of
their choice. AB 1612 was enacted as a negotiated compromise
following unsuccessful efforts by the Schwarzenegger
administration to bar individuals convicted of any felony and
designated misdemeanors from being employed as IHSS providers.
With respect to those felonies classified as Tier 2, AB 1612
preserved consumers' right to hire caregivers of their choosing
through individual waivers. That right would be eliminated
under this bill. In addition, by eliminating individual
waivers, this bill would require IHSS recipients-including young
children-to receive services from strangers rather than from
parents, adult children, siblings, spouses, domestic partners,
and other trusted friends and relatives.
Opposition
In opposition to this bill, the National Employment law Project
says that "the current statute regulating IHSS providers strikes
the correct balance of protecting vulnerable persons from harm
without having an adverse impact on the pool of available
workers or impinging on the rights of individual IHSS recipients
to choose a provider with complete knowledge of his or her
conviction for a Tier II crime. �This bill] would make it hard
for IHSS recipients to be provided with a caregiver of their
choice-a caregiver that is frequently a close relative." In a
joint opposition letter, the California State Association of
Counties, the County Welfare Directors Association, and the
California Association of Public Authorities for IHSS say that:
A core provision of the current IHSS program allows
recipient to identify and hire the caregivers that
will be entering their home and providing domestic and
health related services. A recipient who knows and
trusts their IHSS provider is more likely to establish
a long-term recipient-caregiver relationship, thereby
achieving the top goal of the IHSS program: to allow
those with documented service needs to receive quality
care while remaining in their homes.
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REGISTERED SUPPORT / OPPOSITION :
Support
Office of the District Attorney, Sacramento County
Opposition
American Civil Liberties Union
California Association of Public Authorities for IHSS
California State Association of Counties
Coalition of California Welfare Rights Organizations, Inc.
County Welfare Directors Association
Lawyers' Committee for Civil Rights
Legal Services for Prisoners with Children
National Employment Law Project
United Domestic Workers of America - AFSCME Local 3930
Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089