BILL ANALYSIS Ó
SENATE HUMAN
SERVICES COMMITTEE
Senator Carol Liu, Chair
BILL NO: AB 2538
A
AUTHOR: J. Perez
B
VERSION: February 24, 2012
HEARING DATE: June 26, 2012
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FISCAL: Yes
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URGENCY: Yes
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CONSULTANT:Sara Rogers
SUBJECT
In-home supportive services: criminal exclusions
SUMMARY
Clarifies that an In-Home Supportive Services local public
authority shall share results of a Department of Justice
background check with the Department of Social Service in
order to complete the background check process for provider
applications.
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
safely in their homes with supportive services.
2.Establishes the Department of Social Services (DSS) as
Continued---
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the state agency with regulatory authority over the IHSS
program and delegates administration of the program to
counties and county public authorities.
3.Permits counties to contract with a nonprofit consortium
or establish a local public authority through ordinance,
for the purpose of providing for the delivery of in-home
supportive services.
4.Provides that a public authority or contracted non-profit
consortium established to provide for the delivery of
IHSS services shall serve as the employer of record for
the purposes of collective bargaining over wages, hours
and other terms of employment, except for purposes of
liability for provider negligence, and shall:
i. Establish a registry to assist residents in
finding in-home supportive services personnel.
ii. Investigate the qualifications and background
of potential personnel which must include a DOJ
conducted criminal offender record investigation
(CORI).
iii. Deny a request to be placed on the registry if
a prospective provider has been convicted of
specified criminal offenses unless waived or
exempted, as specified.
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:
i. Specified abuse of a child (Penal Code section
273a)
ii. Abuse of an elder or dependent adult (PC
section 368)
iii. Fraud against a government health care or
supportive services program
1.Establishes a second tier of exclusionary crimes, which
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may be waived or exempted, including:
i. A violent or serious felony, as specified in PC
section 667.5(c), and PC section 1192.7(c)
ii. A felony offense for which a person is required
to register as a sex offender pursuant to PC section
290(c)
iii. 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.Requires DSS to request a copy of an applicant's criminal
offender record investigation (CORI) from a county
welfare department and requires the county to provide
this information in a manner which protects the
confidentiality and privacy of the CORI response.
This bill
1.In addition to county welfare departments, also requires
a public authority to provide DSS with a copy of an
applicant's CORI and provides that DSS shall request a
copy of an applicant's CORI from the public authority or
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the county.
FISCAL IMPACT
The Assembly Appropriations committee determined that there
are no significant costs associated with this legislation.
BACKGROUND AND DISCUSSION
According to the author, this bill enacts a technical and
clarifying revision to current law to ensure that the
employee background check process provided for under
current law can be completed. The author states that this
bill enacts further clean-up to SB 930 (Evans, 2011) which
inadvertently omitted "public authorities" from the list of
organizations permitted to share CORI's with DSS. DSS uses
CORI's for the purpose of processing general exception
requests on behalf of providers who have been excluded from
becoming an IHSS provider due to a prior criminal
conviction.
The California Association of Public Authorities writes in
support that this bill corrects a drafting error in current
law, and that in order for DSS to process general exemption
requests as is required under the law they must be able to
receive a copy of the CORI from a public authority or
county.
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
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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
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.
SB 930 requires the county to provide DSS with the CORI if
an IHSS provider or provider applicant has requested an
appeal of a denial of placement on the IHSS provider
registry as a result of a DOJ criminal background check.
This bill implements a technical clean up measure to this
legislation.
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PRIOR VOTES
Assembly Floor 75 - 0
Assembly Appropriations17 - 0
Assembly Human Services 6 - 0
Related Legislation
AB 1714 (Halderman) adds felony forgery, felony
embezzlement, felony extortion and felony identify theft to
the list of Tier 2 offenses that require a waiver. This
bill is being considered by this committee on June 26,
2012.
SB 930 (Evans, Chapter 649, Statutes of 2011) - Repeals the
requirement that IHSS recipients provide fingerprint images
at the time of assessment or reassessment and on
standardized timesheets. Requires the county to provide
DSS with the DOJ criminal offender record information
search response (CORI) if an IHSS provider or provider
applicant has requested an appeal of a denial of placement
on the IHSS provider registry as a result of a DOJ criminal
background check.
POSITIONS
Support: California
Association of Public Authorities
California Welfare Directors Association
Los Angeles County District Attorney's Office
The Arc and United Cerebral Palsy in California
Oppose: None received
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