California Legislature—2013–14 Regular Session

Assembly Bill No. 1533

Introduced by Assembly Member Waldron

January 21, 2014

An act to amend Sections 12301.6 and 12305.86 of the Welfare and Institutions Code, relating to public social services.

LEGISLATIVE COUNSEL’S DIGEST

AB 1533, as introduced, Waldron. In-home supportive services: criminal background checks.

Existing law provides for the county-administered In-Home Supportive Services (IHSS) program, under which qualified aged, blind, and disabled persons are provided with services in order to permit them to remain in their own homes and avoid institutionalization. Existing law authorizes services to be provided under the IHSS program either through the employment of individual providers, a contract between the county and an entity for the provision of services, the creation by the county of a public authority, or a contract between the county and a nonprofit consortium. Existing law requires a county, public authority, or nonprofit consortium, as applicable, to conduct an investigation of the qualifications and background of an IHSS provider applicant, including specified criminal background checks.

This bill would require, as part of those criminal background checks, the Department of Justice to request federal summary criminal history information from the Federal Bureau of Investigation, and to review the information returned from the Federal Bureau of Investigation and provide it to the county, public authority, or nonprofit consortium.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 12301.6 of the Welfare and Institutions
Code is amended to read:

12301.6.  

(a) Notwithstanding Sections 12302 and 12302.1, a
county board of supervisors may, at its option, elect to do either
of the following:

(1) Contract with a nonprofit consortium to provide for the
delivery of in-home supportive services.

(2) Establish, by ordinance, a public authority to provide for
the delivery of in-home supportive services.

(b) (1) To the extent that a county elects to establish a public
authority pursuant to paragraph (2) of subdivision (a), the enabling
ordinance shall specify the membership of the governing body of
the public authority, the qualifications for individual members, the
manner of appointment, selection, or removal of members, how
long they shall serve, and other matters as the board of supervisors
deems necessary for the operation of the public authority.

(2) A public authority established pursuant to paragraph (2) of
subdivision (a) shall be both of the following:

(A) An entity separate from the county, and shall be required
to file the statement required by Section 53051 of the Government
Code.

(B) A corporate public body, exercising public and essential
governmental functions and that has all powers necessary or
convenient to carry out the delivery of in-home supportive services,
including the power to contract for services pursuant to Sections
12302 and 12302.1 and that makes or provides for direct payment
to a provider chosen by the recipient for the purchase of services
pursuant to Sections 12302 and 12302.2. Employees of the public
authority shall not be employees of the county for any purpose.

(3) (A) As an alternative, the enabling ordinance may designate
the board of supervisors as the governing body of the public
authority.

(B) Any enabling ordinance that designates the board of
supervisors as the governing body of the public authority shall
also specify that no fewer than 50 percent of the membership of
the advisory committee shall be individuals who are current or
past users of personal assistance services paid for through public
or private funds or recipients of services under this article.

(C) If the enabling ordinance designates the board of supervisors
as the governing body of the public authority, it shall also require
the appointment of an advisory committee of not more than 11
individuals who shall be designated in accordance with
subparagraph (B).

(D) Prior to making designations of committee members
pursuant to subparagraph (C), or governing body members in
accordance with paragraph (4), the board of supervisors shall solicit
recommendations of qualified members of either the governing
body of the public authority or of any advisory committee through
a fair and open process that includes the provision of reasonable
written notice to, and a reasonable response time by, members of
the general public and interested persons and organizations.

(4) If the enabling ordinance does not designate the board of
supervisors as the governing body of the public authority, the
enabling ordinance shall require the membership of the governing
body to meet the requirements of subparagraph (B) of paragraph
(3).

(c) (1) Any public authority created pursuant to this section
shall be deemed to be the employer of in-home supportive services
personnel referred to recipients under paragraph (3) of subdivision
(e) within the meaning of Chapter 10 (commencing with Section
3500) of Division 4 of Title 1 of the Government Code. Recipients
shall retain the right to hire, fire, and supervise the work of any
in-home supportive services personnel providing services to them.

(2) (A) Any nonprofit consortium contracting with a county
pursuant to this section shall be deemed to be the employer of
in-home supportive services personnel referred to recipients
pursuant to paragraph (3) of subdivision (e) for the purposes of
collective bargaining over wages, hours, and other terms and
conditions of employment.

(B) Recipients shall retain the right to hire, fire, and supervise
the work of any in-home supportive services personnel providing
services for them.

(d) A public authority established pursuant to this section or a
nonprofit consortium contracting with a county pursuant to this
section, when providing for the delivery of services under this
article by contract in accordance with Sections 12302 and 12302.1
or by direct payment to a provider chosen by a recipient in
accordance with Sections 12302 and 12302.2, shall comply with
and be subject to, all statutory and regulatory provisions applicable
to the respective delivery mode.

(e) Any nonprofit consortium contracting with a county pursuant
to this section or any public authority established pursuant to this
section shall provide for all of the following functions under this
article, but shall not be limited to those functions:

(1) The provision of assistance to recipients in finding in-home
supportive services personnel through the establishment of a
registry.

(2) (A) (i) The investigation of the qualifications and
background of potential personnel. begin delete Upon the effective date of the
amendments to this section made during the 2009-10 Fourth
Extraordinary Session of the Legislature, the end delete begin insert The end insert investigation
with respect to any provider in the registry or prospective registry
applicant shall include criminal background checks requested by
the nonprofit consortium or public authority and conducted by the
Department of Justice pursuant to Section 15660 begin delete , for those public
authorities or nonprofit consortia using the agencies on the effective
date of the amendments to this section made during the 2009-10
Fourth Extraordinary Session of the Legislature. Criminal
background checks shall be performed no later than July 1, 2010,
for any provider who is already on the registry on the effective
date of amendments to this section made during the 2009-10 Fourth
Extraordinary Session of the Legislature, for whom a criminal
background check pursuant to this section has not previously been
provided, as a condition of the provider’s continued enrollment in
the IHSS program end delete . begin insert The Department of Justice shall also request
federal summary criminal history information from the Federal
Bureau of Investigation, and shall review the information returned
from the Federal Bureau of Investigation and provide it to the
public authority or nonprofit consortium. end insert Criminal background
checks shall be conducted at the provider’s expense.

(ii) Upon notice from the Department of Justice notifying the
public authority or nonprofit consortium that the prospective
registry applicant has been convicted of a criminal offense specified
in Section 12305.81, the public authority or nonprofit consortium
shall deny the request to be placed on the registry for providing
supportive services to any recipient of the In-Home Supportive
Services program.

(iii)  begin delete Commencing 90 days after the effective date of the act that
adds Section 12305.87, and upon end delete begin insert Upon end insert notice from the Department
of Justice that an applicant who is subject to the provisions of that
section has been convicted of, or incarcerated following conviction
for, an offense described in subdivision (b) of begin delete that section end delete begin insert Section
12305.87 end insert , the public authority or nonprofit consortium shall deny
the applicant’s request to become a provider of supportive services
to any recipient of in-home supportive services, subject to the
individual waiver and exception processes described in that section.
An applicant who is denied on the basis of Section 12305.87 shall
be informed by the public authority or nonprofit consortium of the
individual waiver and exception processes described in that section.

(B) (i) Notwithstanding any other law, the public authority or
nonprofit consortium shall provide an individual with a copy of
his or her state-level criminal offender record information search
response as provided to the entity by the Department of Justice if
the individual has been denied placement on the registry for
providing supportive services to any recipient of the In-Home
Supportive Services program based on this information. The copy
of the state-level criminal offender record information search
response shall be included with the individual’s notice of denial.
Along with the notice of denial, the public authority or public
consortium shall also provide information in plain language on
how an individual may contest the accuracy and completeness of,
and refute any erroneous or inaccurate information in, his or her
state-level criminal offender record information search response
as provided by the Department of Justice as authorized by Section
11126 of the Penal Code. The state-level criminal offender record
information search response shall not be modified or altered from
its form or content as provided by the Department of Justice.

(ii) The department shall develop a written appeal process for
the current and prospective providers who are determined ineligible
to receive payment for the provision of services in the In-Home
Supportive Services program. Notwithstanding any other law, the
public authority or nonprofit consortium shall provide the
department with a copy of the state-level criminal offender record
information search response as provided to the entity by the
Department of Justice for any individual who has requested an
appeal of a denial of placement on the registry for providing
supportive services to any recipient of the In-Home Supportive
Services program based on clause (ii) or (iii) of subparagraph (A).
The state-level criminal offender record information search
response shall not be modified or altered from its form or content
as provided by the Department of Justice and shall be provided to
the address specified by the department in its written request.

(C) This paragraph shall not be construed to prohibit the
Department of Justice from assessing a fee pursuant to Section
11105 or 11123 of the Penal Code to cover the cost of furnishing
summary criminal history information.

(D) As used in this section, “nonprofit consortium” means a
nonprofit public benefit corporation that has all powers necessary
to carry out the delivery of in-home supportive services under the
delegated authority of a government entity.

(E) A nonprofit consortium or a public authority authorized to
secure a criminal background check clearance pursuant to this
section shall accept a clearance for an applicant described in clause
(i) of subparagraph (A) who has been deemed eligible by another
nonprofit consortium, public authority, or county with criminal
background check authority pursuant to either Section 12305.86
or this section, to receive payment for providing services pursuant
to this article. Existence of a clearance shall be determined by
verification through the case management, information, and
payrolling system, that another county, nonprofit consortium, or
public authority with criminal background check authority pursuant
to Section 12305.86 or this section has deemed the current or
prospective provider to be eligible to receive payment for providing
services pursuant to this article.

(3) Establishment of a referral system under which in-home
supportive services personnel shall be referred to recipients.

(4) Providing for training for providers and recipients.

(5) (A) Performing any other functions related to the delivery
of in-home supportive services.

(B) (i) Upon request of a recipient of in-home supportive
services pursuant to this chapter, or a recipient of personal care
services under the Medi-Cal program pursuant to Section 14132.95,
a public authority or nonprofit consortium may provide a criminal
background check on a nonregistry applicant or provider from the
Department of Justice, in accordance with clause (i) of
subparagraph (A) of paragraph (2) of subdivision (e). If the person
who is the subject of the criminal background check is not hired
or is terminated because of the information contained in the
criminal background report, the provisions of subparagraph (B)
of paragraph (2) of subdivision (e) shall apply.

(ii) A recipient of in-home supportive services pursuant to this
chapter or a recipient of personal care services under the Medi-Cal
program may elect to employ an individual as their service provider
notwithstanding the individual’s record of previous criminal
convictions, unless those convictions include any of the offenses
specified in Section 12305.81.

(6) Ensuring that the requirements of the personal care option
pursuant to Subchapter 19 (commencing with Section 1396) of
Chapter 7 of Title 42 of the United States Code are met.

(f) (1) Any nonprofit consortium contracting with a county
pursuant to this section or any public authority created pursuant
to this section shall be deemed not to be the employer of in-home
supportive services personnel referred to recipients under this
section for purposes of liability due to the negligence or intentional
torts of the in-home supportive services personnel.

(2) In no case shall a nonprofit consortium contracting with a
county pursuant to this section or any public authority created
pursuant to this section be held liable for action or omission of any
in-home supportive services personnel whom the nonprofit
consortium or public authority did not list on its registry or
otherwise refer to a recipient.

(3) Counties and the state shall be immune from any liability
resulting from their implementation of this section in the
administration of the In-Home Supportive Services program. Any
obligation of the public authority or consortium pursuant to this
section, whether statutory, contractual, or otherwise, shall be the
obligation solely of the public authority or nonprofit consortium,
and shall not be the obligation of the county or state.

(g) Any nonprofit consortium contracting with a county pursuant
to this section shall ensure that it has a governing body that
complies with the requirements of subparagraph (B) of paragraph
(3) of subdivision (b) or an advisory committee that complies with
subparagraphs (B) and (C) of paragraph (3) of subdivision (b).

(h) Recipients of services under this section may elect to receive
services from in-home supportive services personnel who are not
referred to them by the public authority or nonprofit consortium.
Those personnel shall be referred to the public authority or
nonprofit consortium for the purposes of wages, benefits, and other
terms and conditions of employment.

(i) (1) Nothing in this section shall be construed to affect the
state’s responsibility with respect to the state payroll system,
unemployment insurance, or workers’ compensation and other
provisions of Section 12302.2 for providers of in-home supportive
services.

(2) The Controller shall make any deductions from the wages
of in-home supportive services personnel, who are employees of
a public authority pursuant to paragraph (1) of subdivision (c), that
are agreed to by that public authority in collective bargaining with
the designated representative of the in-home supportive services
personnel pursuant to Chapter 10 (commencing with Section 3500)
of Division 4 of Title 1 of the Government Code and transfer the
deducted funds as directed in that agreement.

(3) Any county that elects to provide in-home supportive
services pursuant to this section shall be responsible for any
increased costs to the in-home supportive services case
management, information, and payrolling system attributable to
that election. The department shall collaborate with any county
that elects to provide in-home supportive services pursuant to this
section prior to implementing the amount of financial obligation
for which the county shall be responsible.

(j) To the extent permitted by federal law, personal care option
funds, obtained pursuant to Subchapter 19 (commencing with
Section 1396) of Chapter 7 of Title 42 of the United States Code,
along with matching funds using the state and county sharing ratio
established in subdivision (c) of Section 12306, or any other funds
that are obtained pursuant to Subchapter 19 (commencing with
Section 1396) of Chapter 7 of Title 42 of the United States Code,
may be used to establish and operate an entity authorized by this
section.

(k) Notwithstanding any other law, the county, in exercising its
option to establish a public authority, shall not be subject to
competitive bidding requirements. However, contracts entered into
by either the county, a public authority, or a nonprofit consortium
pursuant to this section shall be subject to competitive bidding as
otherwise required by law.

(l) (1) The department may adopt regulations implementing
this section as emergency regulations in accordance with Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 3 of
Title 2 of the Government Code. For the purposes of the
Administrative Procedure Act, the adoption of the regulations shall
be deemed an emergency and necessary for the immediate
preservation of the public peace, health and safety, or general
welfare. Notwithstanding Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code,
these emergency regulations shall not be subject to the review and
approval of the Office of Administrative Law.

(2) Notwithstanding subdivision (h) of Section 11346.1 and
Section 11349.6 of the Government Code, the department shall
transmit these regulations directly to the Secretary of State for
filing. The regulations shall become effective immediately upon
filing by the Secretary of State.

(3) Except as otherwise provided for by Section 10554, the
Office of Administrative Law shall provide for the printing and
publication of these regulations in the California Code of
Regulations. Emergency regulations adopted pursuant to this
subdivision shall remain in effect for no more than 180 days.

(m) (1) In the event that a county elects to form a nonprofit
consortium or public authority pursuant to subdivision (a) before
the State Department of Health Care Services has obtained all
necessary federal approvals pursuant to paragraph (3) of
subdivision (j) of Section 14132.95, all of the following shall apply:

(A) Subdivision (d) shall apply only to those matters that do
not require federal approval.

(B) The second sentence of subdivision (h) shall not be
operative.

(C) The nonprofit consortium or public authority shall not
provide services other than those specified in paragraphs (1), (2),
(3), (4), and (5) of subdivision (e).

(2) Paragraph (1) shall become inoperative when the State
Department of Health Care Services has obtained all necessary
federal approvals pursuant to paragraph (3) of subdivision (j) of
Section 14132.95.

(n) (1) One year after the effective date of the first approval by
the department granted to the first public authority, the Bureau of
State Audits shall commission a study to review the performance
of that public authority.

(2) The study shall be submitted to the Legislature and the
Governor not later than two years after the effective date of the
approval specified in subdivision (a). The study shall give special
attention to the health and welfare of the recipients under the public
authority, including the degree to which all required services have
been delivered, out-of-home placement rates, prompt response to
recipient complaints, and any other issue the director deems
relevant.

(3) The report shall make recommendations to the Legislature
and the Governor for any changes to this section that will further
ensure the well-being of recipients and the most efficient delivery
of required services.

(o)  begin delete Commencing July 1, 1997, the end delete begin insert The end insert department shall provide
annual reports to the appropriate fiscal and policy committees of
the Legislature on the efficacy of the implementation of this
section, and shall include an assessment of the quality of care
provided pursuant to this section.

(p) (1) Notwithstanding any other law, and except as provided
in paragraph (2), the department shall, no later than January 1,
2009, implement subparagraphs (A) and (B) through an all-county
letter from the director:

(A) Subparagraphs (A) and (B) of paragraph (2) of subdivision
(e).

(B) Subparagraph (B) of paragraph (5) of subdivision (e).

(2) The department shall, no later than July 1, 2009, adopt
regulations to implement subparagraphs (A) and (B) of paragraph
(1).

(q) The amendments made to paragraphs (2) and (5) of
subdivision (e) made by the act that added this subdivision during
the 2007-08 Regular Session of the Legislature shall be
implemented only to the extent that an appropriation is made in
the annual Budget Act or other statute, except for the amendments
that added subparagraph (D) of paragraph (2) of subdivision (e),
which shall go into effect January 1, 2009.

SEC. 2.  

Section 12305.86 of the Welfare and Institutions Code
is amended to read:

12305.86.  

(a)  begin delete Effective October 1, 2009, a end delete begin insert A end insert county shall
investigate the background of a person who seeks to become a
supportive services provider and who is not listed on the registry
of a public authority or nonprofit consortium pursuant to Section
12301.6. This investigation shall include criminal background
checks conducted by the Department of Justice pursuant to Section
15660 begin insert , and a review by the Department of Justice of federal
summary criminal history information maintained by the Federal
Bureau of Investigation, as described in clause (i) of subparagraph
(A) of paragraph (2) of subdivision (e) of Section 12301.6 end insert .

(b)  begin delete No later than July 1, 2010, the county shall complete a
criminal background check pursuant to subdivision (a) for a
provider who is providing in-home supportive services prior to
October 1, 2009, and who is not listed on a public authority or
nonprofit consortium registry, as a condition of the provider’s
continued enrollment in the IHSS program. end delete Criminal background
checks shall be conducted at the provider’s expense.

(c) (1) Upon notice from the Department of Justice that a
prospective or current provider has been convicted of a criminal
offense specified in Section 12305.81, the county shall deny or
terminate the applicant’s request to become a provider of
supportive services to any recipient of the In-Home Supportive
Services program.

(2)  begin delete Commencing 90 days after the effective date of the act that
adds Section 12305.87, and upon end delete begin insert Upon end insert notice from the Department
of Justice that an applicant who is subject to the provisions of that
section has been convicted of, or incarcerated following conviction
for, an offense described in subdivision (b) of begin delete that section end delete begin insert Section
12305.87 end insert , the county shall deny the applicant’s request to become
a provider of supportive services to any recipient of in-home
supportive services, subject to the individual waiver and exception
processes described in that section. An applicant who is denied on
the basis of Section 12305.87 shall be informed by the county of
the individual waiver and exception processes described in that
section.

(3) Notwithstanding any other law, the county shall provide an
individual with a copy of his or her state-level criminal offender
record information search response as provided to the county by
the Department of Justice if the individual has been denied
eligibility to provide supportive services to any recipient of the
In-Home Supportive Services program based on this information.
The copy of the state-level criminal offender record information
search response shall be included with the individual’s notice of
denial. Along with the notice of denial, the county shall also
provide information in plain language on how an individual may
contest the accuracy and completeness of, and refute any erroneous
or inaccurate information in, his or her state-level criminal offender
record information search response as provided by the Department
of Justice as authorized by Section 11126 of the Penal Code. The
state-level criminal offender record information search response
shall not be modified or altered from its form or content as provided
by the Department of Justice.

(4) The department shall develop a written appeal process for
the current and prospective providers who are determined ineligible
to receive payment for the provision of services under the In-Home
Supportive Services program. Notwithstanding any other law, the
county shall provide the department with a copy of the state-level
criminal offender record information search response as provided
to the county by the Department of Justice for any individual who
has requested an appeal based upon a denial of eligibility to provide
supportive services to any recipient of the In-Home Supportive
Services program pursuant to Sections 12305.81 and 12305.87.
The state-level criminal offender record information search
response shall not be modified or altered from its form or content
as provided by the Department of Justice.

(d) This section shall not be construed to prohibit the Department
of Justice from assessing a fee pursuant to Section 11105 or 11123
of the Penal Code to cover the cost of furnishing summary criminal
history information.

(e) A county authorized to secure a criminal background check
clearance pursuant to this section shall accept a clearance for an
individual described in subdivision (a) or (b) who has been deemed
eligible by another nonprofit consortium, public authority, or
county with criminal background check authority pursuant to either
Section 12301.6 or this section, to receive payment for providing
services pursuant to this article. Existence of a clearance shall be
determined by verification through the case management,
information, and payrolling system, that another county, nonprofit
consortium, or public authority with criminal background check
authority pursuant to Section 12301.6 or this section has deemed
the current or prospective provider to be eligible to receive payment
for providing services pursuant to this article.

(f) The department shall seek federal financial participation, to
the extent possible, to cover any costs associated with this section.